A bill would make it easier to sue Florida nursing homes. Elder advocates oppose it.

Groups that represent people inside nursing homes vehemently oppose the legislation.
The Florida Capitol in Tallahassee.
The Florida Capitol in Tallahassee. [ STEPHEN M. DOWELL | Orlando Sentinel ]
Published Feb. 16, 2022|Updated Feb. 16, 2022

TALLAHASSEE — The bill was written by the nursing home industry, but that’s not the end of the story.

That was the assurance given by Sen. Ben Albritton, R-Wauchula, the lawmaker backing Senate Bill 804 — which would make substantial changes to the way the state regulates nursing home staffing levels. Albritton pledged he would work to bring all parties with a vested interest to the table to compromise on the industry-backed legislation. Rep. Lauren Melo, R-Naples, who sponsored similar legislation, House Bill 1239, would do the same.

Now, two amended versions of the bills are making their way through the House and Senate. It appears the lawmakers have built some consensus. The nursing home industry and the trial lawyers who sue those facilities on behalf of residents and their families now both support the bill.

But groups that directly represent people who live and work inside nursing homes continue to vehemently oppose the legislation. The AARP in a news release called the House bill “irresponsible” and “unconscionable.” The group predicted the bills, if passed, would make people suffer from inadequate care.

Related: Bill changing Florida nursing home standards was written by the industry, emails show

The amended measures would:

  • Reduce the minimum number of hours certified nursing assistants, also known as CNAs, are required to spend caring for each nursing home resident by half an hour, to two hours daily. Other types of “direct care” employees — such as occupational therapists, mental health counselors and feeding assistants — will now be able to count toward the remaining half-hour of care an individual must receive daily under state law.
  • Add provisions that make it easier to obtain money won from long-term care facilities in a lawsuit over substandard care, ensuring anyone who takes ownership of a nursing home with an unpaid judgment becomes responsible for paying it. The bills would also prevent a facility from using proof that they met minimum staff standards as sufficient evidence in court that they adequately cared for a resident.
  • Give the Agency for Health Care Administration new discretion (under the Senate version of the bill) over whether it will stop facilities from admitting new patients if they fail to meet staffing requirements. Currently, nursing homes that are ill-staffed for two consecutive days must bar new admissions until employee levels improve.

At a spate of recent committee meetings in the Legislature, labor unions and patient advocates have sparred with the bills’ sponsors and with the nursing home industry over the contention that the bills would make patients less safe.

Supporters say the amendments strike a balance: They increase a resident’s capacity to seek justice through the court system should they experience substandard care, while attempting to alleviate the burden of staff shortages that have long plagued long-term care facilities statewide.

“We want to make sure we’re meeting our residents’ needs with the staff that’s best suited for their psychosocial, physical care,” said Kristen Knapp, spokesperson for the Florida Health Care Association, which represents over 80 percent of the state’s nursing homes and whose lobbyists helped write the original legislation — a practice that is not unprecedented in Tallahassee. “And you’ve got these layers of accountability that are going to help ensure that.”

Florida has been considered a leader in staffing standards since 2001, when lawmakers dramatically increased the number of hours nurses and nursing assistants must spend caring for each resident daily.

In the wake of a pandemic that spotlighted the connection between infection control and sufficient staffing, other states have recently passed laws raising nursing staff minimums in their facilities.

But nursing home industry leaders say the needs of the residents in their care have changed in the last two decades — alleging many require less care from nursing staff and increased time with more specialized employees.

Patient advocates disagree.

An independent University of South Florida study, conducted on behalf of the state in 2009, found that quality of care substantially improved in facilities statewide after the introduction of the 2001 law bolstering nursing assistant standards.

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“Not even a year after we enacted (2001 minimum staff standards), we saw a downward trajectory (of) citations and complaints,” said Rep. Carlos Guillermo Smith, D-Orlando, at a Monday House committee meeting, citing the research. “Rolling this back by a half an hour is going to have dramatic consequences.”

Smith argued the reduction in staffing amounted to a giveaway to a powerful industry.

Tom Parker, director of reimbursement for the Florida Health Care Association, disagreed, arguing that some nursing homes may actually have higher overall costs as a result of the proposed solution.

”We’re talking about physical therapists, we’re talking about occupational therapists, respiratory therapists — those folks all have a higher salary than CNAs,” Parker said. “So I don’t know what the savings would be, because every building is going to staff differently, depending on the needs of their residents.”

Elder care advocates say the legislation sacrifices resident safety in its effort to improve staffing in nursing homes — forfeiting preventative care measures in favor of retroactive justice.

“This creates more ability to sue after someone has been harmed,” said Zayne Smith, associate state director of advocacy at AARP Florida. “That’s great, but why aren’t we talking about, ‘Let’s prevent the harm from occurring in the first place?’”

Melo, the House sponsor of the bill, said she’s been willing to hear out AARP and labor unions over their concerns. But unlike the other parties, those groups have been unwilling to compromise, she said.

“I’ve sat down with both of them and made several suggestions asking if they would then support the bill, and I was told no. They are literally, ‘This is what we want. We won’t compromise at all,’ ” Melo said. “Which then leaves you in the future not really having a seat at the table, because you’re not willing to even tell us what you would be satisfied with.”

But Smith of AARP Florida said their organization is willing to concede quite a bit — such as making the moratorium on new resident admissions optional, a change the group previously opposed — as long as the nursing staff requirements aren’t whittled down.

“No changes to the legislation have been made that include suggestions from resident advocates,” said Smith of AARP Florida. “Are we hopeful that there’s room for amendment? Absolutely. But the reality of that actually happening is slim to none.

“Industries like the Florida Health Care Association are major players in political donations and in PACs,” she added. “We advocate on behalf of the residents and their families that are in nursing homes, but we’re advocating at a deficit — because we don’t offer political contributions.”

As long as proposed legislation includes a decrease in nursing staff standards, it’s unlikely lawmakers will receive the support of either group. In turn, it’s equally implausible that the nursing home industry will back any bill that does not include such a reduction.

Albritton said he’s heard the concerns of resident and labor advocates “loud and clear.”

“I’m going to meet with them, I’m going to listen very closely … and we’re going to talk and see what comes of it,” he said. “At the end of the day, my encouragement lies in that we’ve come so far from where we started with that placeholder bill.”

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