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Florida lawmakers consider tough law to protect assisted living facilities

Published Jan. 20, 2012

After years of stripping away critical protections at assisted living facilities, Florida lawmakers are radically changing course in what could lead to one of the toughest laws in the nation against abusive caretakers.

With rampant abuse across the state, key lawmakers are calling for homes to be shut down when residents die from shoddy care and caretakers banned from the industry, in the biggest changes in state law since the creation of ALFs a generation ago.

Unveiled this week by two Senate committees, the dual bills follow months of reports by the Miami Herald that showed frail elders were living in squalor and dangerous conditions while regulators failed to crack down on the worst abusers.

"(The state) wasn't doing its job," said Sen. Nan Rich, a Weston Democrat and vice chair of the Children, Families and Elder Affairs Committee. "They were not enforcing the regulations and not closing down facilities that didn't correct the violations and abuse."

Not since the creation of ALFs four decades ago in Florida have lawmakers proposed such comprehensive legislation to improve oversight, including mandatory penalties in fatal neglect cases and creation of a public rating system for homes based on their regulatory rap sheets.

The bills also strip away some power from Florida's regulator, the Agency for Health Care Administration, which has drawn fire for failing to shutter troubled homes, even after caretakers were found abusing residents to death.

The bills from Rich's committee and the Senate's Health Regulation Committee — both including strikingly similar reforms — come after eight months of intense pressure on state leaders to radically improve an industry that has surpassed nursing homes as the primary residences for the elderly and mentally ill in Florida.

Among the proposals, the state would:

• Strip the license of any home where a resident dies from abuse or neglect. Under current law, the agency can impose much weaker sanctions — or do nothing at all.

• Slap the maximum fines on homes caught abusing or neglecting residents to death, without resorting to making settlements.

• Dramatically increase the qualifications for ALF administrators, from a high school diploma to a college degree with coursework in health fields or two years of experience caring for residents.

• Impose criminal penalties for caregivers and administrators who falsify medical and other ALF records.

• Allow family members of residents to install so-called "Granny Cams" in rooms to help detect caregiver abuse, as long as relatives sign agreements to respect the privacy of others.

• Allow residents to appeal a home's decision to force them out, giving residents the chance to remain at the home until a hearing is held.

The emergence of the bills comes after revelations that residents were regularly dying of abuse and neglect — nearly one a month since 2002 — while the state was carrying out fewer inspections.

The Herald found that while abuse and neglect cases doubled since 2005, the state dropped crucial inspections by 33 percent.

Under the bills, state agents would be required to increase their trips to homes where they have found a history of violations that threaten the safety of residents.

"It's time to get rid of some of the bad actors," said Sen. Don Gaetz, a Destin Republican and member of the health committee. "This is about protecting vulnerable people."

Both bills strongly support increasing the educational requirements for people to run ALFs: bachelor's or associate degrees with emphasis in health fields or prior experience in resident care. Current managers would be grandfathered in with one exception: no severe violations at their homes in the prior two years.

Larry Polivka, who led a governor's task force examining problems in ALFs, said the bills tackle several issues raised by the panel, including improving care for the mentally ill.

"We were behind the curve on regulatory issues," said Polivka, scholar in residence at the Claude Pepper Center at Florida State University. "We needed to close the gap."

One key proposal: AHCA professionals must visit homes catering to the mentally ill four times a year to ensure residents are properly treated.

While the bills are supported by some of Florida's most powerful senators — including Ronda Storms, a Republican from Valrico who chairs the Children, Families and Elder Affairs Committee — they are expected to draw opposition from industry leaders and some House members.

Just last year, lawmakers pushed 16 pieces of legislation that would have gone in the opposite direction and weakened oversight of ALFs, including stripping away penalties on repeat offenders — but the bills were pulled from consideration in May after the Herald's series.

Rich said she expects a fight in the House, where the last serious effort to reform ALFs was killed in 2008.

"They have not indicated the same commitment to passing significant legislation," she said.

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