The decades-long quest of Florida elder-care facilities to secure greater protections against negligence lawsuits may get a boost from the unlikeliest of events: a once-in-a-lifetime pandemic that is ravaging their residents.
A trade group for Florida’s nearly 700 nursing homes is asking Gov. Ron DeSantis to extend the state’s sovereign immunity provisions to the industry and other healthcare sectors during the course of the coronavirus pandemic. If the request is granted, hospitals, nursing homes, assisted living facilities and other providers would be protected against negligence suits.
DeSantis is already doing the industry a favor by refusing to name nursing homes and ALFs where positive tests have occurred. The Miami Herald, joined by a slew of other news organizations, has filed notice of intent to file a public records lawsuit over that refusal. DeSantis tried to block the suit by having his general counsel induce the Herald’s longtime law firm, which does considerable legal work for the state, to bow out. A new law firm had to be hired.
This additional move “would provide the necessary liability protection” health providers need to render care “without fear of reprisal for providing care to their patients during this difficult time,” wrote J. Emmett Reed, the Florida Health Care Association’s executive director, in an April 3 letter to DeSantis.
While Reed’s letter seeks protection for all health workers and facilities that treat patients with the coronavirus, the request is just the latest ratcheting up of a long campaign by the elder-care industry for protection against negligence suits.
In 2001, a task force appointed by then-Gov. Jeb Bush recommended a series of reforms that emerged as a compromise between the industry and resident groups and trial lawyers: Nursing home and assisted living facility operators wanted caps on lawsuit damages. Resident advocates wanted higher staffing ratios in an effort to improve care.
Bush signed the legislation. The lawsuit caps were imposed. The higher staffing ratios never were enforced.
What industry leaders are seeking now, as the pandemic of COVID-19, the disease caused by the coronavirus, has ravaged congregate facilities across Florida, is the holy grail of the campaign.
“In the midst of this unprecedented crisis,” said the industry group’s spokeswoman, Kristen Knapp, providers “should be able to direct their skills and attention to helping individuals who need them, and not have to worry about being sued for making tough decisions while trying to comply with government directives.”
Leading Age Florida, a trade group for about 250 retirement homes and other elder-care facilities, also has asked DeSantis for lawsuit protection, calling the COVID-19 outbreak in Florida “unprecedented on many fronts.”
“Given Florida’s population, the state needs to avoid potentially crippling impacts to the healthcare system once the emergency passes,” the group’s president, Steve Bahmer, wrote in an April 10 letter to DeSantis. “Healthcare providers and healthcare professionals need the flexibility to provide creative and innovative services to save lives without the fear of damaging the organization’s ability to survive after the emergency is over.”
The industry groups have not specified how the protections should be granted, except to say in Reed’s April 3 letter that it could involve “any existing or future federal or state orders, declarations or waivers.” A state of emergency declared by DeSantis on March 9 grants the governor extraordinary powers; it remains to be seen whether they include the right to suspend civil or criminal litigation.
At a news conference Tuesday, DeSantis said he is considering the requests.
“I haven’t made a decision on it,” DeSantis said. “Some folks asked me about that; I think it’s under review. I haven’t made any decisions yet and we’ll look.”
Similar requests are being made elsewhere. The leaders of at least 10 states and the District of Columbia either have signed executive orders extending sovereign immunity to healthcare workers, or are considering such a move, industry advocates said, including the governors of Arizona, Connecticut, Illinois, Indiana, Kentucky, Louisiana, Michigan, New Jersey, New York, and Pennsylvania.
Larry Polivka, the executive director of the Claude Pepper Center, a research and educational group at Florida State University, called lawsuit restrictions “a radical step” that “needs to be carefully considered.”
Polivka, who chaired Bush’s 2000 long-term care task force, said curtailing negligence litigation could leave some facilities wholly isolated, as inspections and visits by the state and federal governments, lay ombudsmen and family members have virtually vanished.
“It is unjustified, at this point,” Polivka said.
If DeSantis were to sign such an executive order, he would be making an about-face from previous statements that suggest he considered long-term care providers accountable, at least in some circumstances.
Last month, the governor suggested that a 180-bed ALF in Fort Lauderdale, Atria Willow Wood, could be criminally prosecuted for its role in the deaths of seven residents from COVID-19. Though DeSantis has refused to name elder-care facilities stricken by the virus, he singled out Willow Wood, saying the home “was clearly non-compliant [with state guidelines], negligent, and it did cost those residents their lives.”
In all, Florida licenses about 691 nursing homes, with about 84,448 beds, and 3,081 ALFs, with 106,103 beds. Not all licensed beds are occupied.
The number of staff members and residents at elder-care facilities infected with the coronavirus has steadily risen. On Saturday, Florida health administrators had reported 787 cases of coronavirus infection at Florida elder-care homes.
By Sunday afternoon, the number had increased to 905, including 119 in Miami-Dade, 91 in Broward and 84 in Palm Beach counties. Pinellas had 19, Hillsborough had 10 and Pasco had two. Hernando didn’t report any.
Clay County, south of Jacksonville, had the fourth-largest number of coronavirus cases then, with 57. Another small North Florida county, Suwanee, reported 55 cases, though almost all are associated with a single Live Oak nursing home.
Fifty-one people at the home, Suwanee Health and Rehabilitation, had tested positive for the virus, including at least 30 employees.
On Monday, the state had reported 962 cases in elder-care facilities. And by Tuesday morning, the number had risen to 1,135, including 212 cases in Miami-Dade, 104 in Broward, 91 in Palm Beach, 65 in Suwanee and 60 in Clay counties. And by Wednesday morning, the number of confirmed cases in Florida rose again to 1,222, including 237 in Miami-Dade, 117 in Broward, and 101 in Palm Beach. Pinellas climbed to 45 by Wednesday, but Hillsborough remained low at 11, with Pasco still reporting two and Hernando none.
Acting alone, the long-term care industry would have a steeper climb to gain blanket lawsuit immunity, even during a pandemic. But hitching their wagon to doctors, nurses and hospitals dramatically boosts the group’s chances. Health providers are the heroes of coronavirus.
Lawrence O. Gostin, who is director of the World Health Organization Collaborating Center on National & Global Health Law at Georgetown University, said some protection for workers making critical, immediate decisions may be warranted — but not a blanket ban on lawsuits.
“I think it is ethical and lawful to grant front-line workers some measure of liability relief in a pandemic, especially with scarce medical resources,” Gostin said. “But simply banning lawsuits, even for gross negligence, would be unethical and unjustified. Any liability protection should be narrow, aimed only at the problem of the duty of care when medical resources are in short supply and hard decisions must be made.
“Anything broader uses a public health emergency as an excuse for poor practice.”
Brian Lee, an elder advocate and former Florida long-term care ombudsman who now heads Families for Better Care, said he understands the healthcare industry’s desire to alleviate the fear of being sued while practitioners work under catastrophic conditions.
“It’s an act of God,” Lee said. “And these are very challenging circumstances. Unprecedented.”
But, he said, extending immunity to long-term care providers now would badly exacerbate an already dangerous situation: In March, the Centers for Medicare and Medicaid Services, the federal agency that regulates nursing homes and healthcare facilities, issued new rules halting nursing home inspections nationwide, except for reviews of facilities where residents are in “immediate jeopardy” — or within homes struggling to control the spread of COVID-19.
At the same time, DeSantis suspended all visitation within nursing homes and assisted living facilities to control the spread of COVID-19, which has been more deadly to elders or those with compromised health than any other population. Family members often have been residents’ best protection against neglect.
Florida’s Long-term Care Ombudsman Program, a watchdog that has for years been staffed largely by retired professionals who are older, has been unable to inspect nursing homes and assisted living facilities, as well.
“We now have no idea what is happening behind closed doors in nursing homes or in assisted living,” Lee said.
Since 2000, industry groups have enjoyed lopsided victories over elder lawyers and advocates virtually every time the groups met in legislative battle. For resident advocates and lawyers, the most disappointing loss came after the 2000 Task Force on Availability and Affordability of Long-term Care.
“This entire document looks like it was written because the staff of the task force was feeling sorry for the nursing home industry,” E. Bentley Lipscomb, then the Florida Director of the AARP, and a former secretary of the state Department of Elder Affairs, said at the time.
Twice, in 2006 and again in 2018, lawmakers grappled with proposals to require elder-care homes to install generators that could ensure elders remain cool during power outages. No law was passed in 2006. In 2018, the year after 12 elders overheated and died at a Hollywood nursing home following Hurricane Irma, lawmakers did pass a law; the state has failed to enforce it.
In 2011, the Miami Herald published a series of stories, Neglected to Death, that found the state was allowing dozens of dangerous assisted living facilities to remain open — and suffer no meaningful discipline — even after health investigators found residents had died of abuse or neglect. Then-Gov. Rick Scott appointed a task force to investigate the series’ findings, then packed the panel with industry insiders.
A host of recommendations — including increased education requirements for administrators and a state website that would allow potential residents to shop and rate homes — were scrapped.
State Sen. Gary Farmer, a Fort Lauderdale Democrat who is a past president of the Florida Justice Association, which represents litigators, said the healthcare associations’ request for lawsuit immunity is yet another attempt by the industry for protections few other interest groups enjoy.
“It’s pure opportunism and self-interest that is driving nursing homes, and they have the audacity to demand to be covered by sovereign immunity when they fail to take reasonable precautions to protect patients and residents.”
They are just looking for a get-out-of-jail-free card,” Farmer said. “And it’s outrageous.”
Mary Ellen Klas of the Herald-Times Tallahassee bureau and Times staff writer Allison Ross contributed to this report.
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