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Florida’s assisted living facilities write rules on reporting deaths, injuries

“It’s pretty alarming what they’re doing here,” said a former Florida long-term care ombudsman who now runs an advocacy group for residents.
The annual assault on Florida’s public records law begins anew today in the Legislature.
The annual assault on Florida’s public records law begins anew today in the Legislature.
Published Oct. 12, 2019

TALLAHASSEE — When a resident in one of Florida’s assisted living facilities falls, dies or is seriously injured, that facility is required to tell the state within one business day that something has gone wrong. But a bill before lawmakers would give operators weeks to report such critical incidents — potentially leaving residents in harm’s way, elder advocates warn.

Industry groups for assisted living facilities, which crafted much of the bill’s language and handed it to lawmakers, say the one-day reports are not needed, and eliminating them will reduce onerous paperwork and unnecessary administrative fines.

But advocates say those preliminary reports are necessary to inform state regulators quickly of potential incidents, and that the change is part of a decades-long deregulation of the industry that could put residents at greater risk.

“It’s pretty alarming what they’re doing here,” said Brian Lee, a former Florida long-term care ombudsman who now runs an advocacy group for residents. He said the reports are intended to flag possible abuse or neglect for the state’s Agency for Health Care Administration, which licenses and regulates assisted living facilities.

“They’re now taking that alert from (the Agency for Health Care Administration) with this proposal,” he added. “This is rolling back enforcement for facilities.”

Florida, long a magnet for retirees, has about 3,000 licensed assisted living facilities in the state that provide assistance to about 100,000 residents with daily tasks such as dressing, bathing or taking medication. The bill, SB 402, would tweak parts of the law governing the state’s assisted living facilities, such as allowing new devices to be used and clarifying how facility staff should help administer medication to residents.

The section on adverse incidents involves one of the key methods for alerting regulators when something goes wrong. Currently, an initial report must be filed if a resident dies, sustains serious injuries, goes missing or is transferred to a hospital or other facility for more intensive care — and facility administrators think they may be responsible.

Assisted living facilities are required by statute to submit up to two reports: one within one business day after an incident, and another full report within 15 days if the facility determines it is responsible. When a report is filed, the Agency for Health Care Administration can then use it to initiate an investigation if it raises concerns about resident safety.

Such investigations have decreased in the past, with serious consequences: A 2011 Miami Herald investigation found that investigations the Agency for Health Care Administration initiated of adverse incidents were slashed by 90 percent between 2002 and 2008, and that lax oversight of assisted living facilities contributed to neglect, abuse and deaths at some places.

The proposed legislation would require facilities to submit only one report within 15 days if the facility determines the incident happened in the scope of its care, though it would direct the facility to begin investigating the incident within 24 hours.

Gail Matillo, president and CEO of the Florida Senior Living Association, said the preliminary report requirement had become difficult for the association’s members, in part because they have to log into the Agency for Health Care Administration’s reporting system to file an initial report, then pull the report if they determine the incident is not their fault.

“It can be easy to overlook,” she said, adding the consequences — such as citations and fines — could burden facilities. In fact, a 2014 audit of the reporting process found more than half of assisted living facilities did not meet the timeline for the 1-day report.

The Florida Senior Living Association, she added, first brought the bill to lawmakers for this year’s session to address several facilities’ concerns, and it has the Agency for Health Care Administration’s support. Matillo said the overall legislation, back before lawmakers for a second year, is largely intended to update language in statute. “We’re trying to clean it up,” she said.

But Lee, the former ombudsman, said the initial report is needed to alert the agency if something goes wrong, pointing to past cases of neglect.

“That track record on the whole doesn’t warrant deregulation,” he said. “There’s a reason why we have adverse incident reporting, because injury, harm, death can come to residents because of abuse.... Providers are trying to remove some accountability for themselves from the records.”

Martha Lenderman, a former mental health administrator and expert on civil commitment law who served on a task force examining assisted living facilities in 2011 and 2012, said assisted living residents would benefit from greater regulation, not less.

“When something goes wrong, self-examination, self-investigation never ever works. We need to have that external review,” she said. “I feel like there’s been less emphasis on oversight, on external oversight and regulatory efforts to protect these residents, and that the business interests sometimes outweigh resident safety.”

Sen. Gayle Harrell, R-Stuart, the bill’s sponsor, cast the legislation as a “modernization” bill that would primarily update language in the statute, and allow residents to use devices to move around more easily or prevent falls. When her late husband was ill, she said, his caregivers regularly used a lift chair to help him move — “and right now in an (assisted living facilities) you can’t have a lift chair.”

Harrell said the language to reduce the number of adverse incident reports was meant to bring assisted living facilities in line with a recent change made to reduce those reports for nursing homes, and “to make sure the language would be as similar as possible.”

Asked if she had spoken to any residents’ groups about the bill, Harrell acknowledged that “mostly, I’ve had conversations with people representing the industry.” But she added those conversations would happen soon.

Jack McRay, advocacy manager for Florida AARP, said his organization was still reviewing the bill but that some provisions might raise questions.

“We’ll take a close look at it and have a discussion with the industry as well as the Agency for Health Care Administration,” he said.

Another portion of the bill also waters down the role of the state ombudsman’s office, removing a requirement that the group be consulted on the development of quality of care standards.

The proposed changes come amid recent turmoil within the ombudsman program, the state’s top watchdog for nursing homes and assisted living facilities. The ombudsman most recently in the role — Mike Milliken — resigned abruptly in late September, leaving the state without a permanently appointed advocate for long-term care residents.

Ashley Chambers, spokeswoman for the state Department of Elder Affairs, which houses the Ombudsman Program, did not answer questions about why Milliken resigned or when a permanent replacement would be found. A message left at a phone number in Milliken’s name was not returned.

Milliken’s resignation letter, obtained by the Times/Herald, offers no explanation for his departure.

The ombudsman’s office has also had a tumultuous past. Lee, who served as ombudsman from 2003 to 2011, was fired after he sought ownership information on nursing homes across the state, angering the industry. His successor, Jim Crochet, left the office under the cloud of an inspector general’s investigation.

Harrell said she anticipated that Milliken’s replacement would be named soon. “I am sure there will be somebody appointed,” she said. “It’s a very important office.”

She added that the Agency for Health Care Administration should be trusted to regulate the industry: “The department always will follow up on these things, believe me,” Harrell said. “That’s their responsibility.”

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