Nursing home bill of rights deserves support

[Proposal 88] guarantees the right of nursing home and assisted living residents “to be treated courteously, fairly and with the fullest measure of dignity.”

Two months after 12 elderly people died of insufferable heat at a nursing home in Hollywood — a tragedy officially ruled homicide — it might seem beyond belief that anyone would object to a bill of rights for residents in long-term care.

But this is Florida, where profit often trumps fair play and where the powerful nursing home lobby, accustomed to having its way with the Florida Legislature, is far from enthusiastic about ensuring courthouse access for the victims of such neglect or lifting restrictions on how much money they might collect.

This time the battleground is at the Constitution Revision Commission, which meets every 20 years and has the power to send amendments directly to the people to be voted up or down.

Proposal 88, by Commissioner Brecht Heuchan, belongs on the November 2018 ballot. It guarantees the right of nursing home and assisted living residents “to be treated courteously, fairly and with the fullest measure of dignity.” It mandates “a safe clean, comfortable and homelike environment that protects residents from harm and takes into account this state’s challenges with respect to climate and natural disasters.”

In Hollywood, those 12 people died after Hurricane Irma knocked out electric power to the air conditioning at the Rehabilitation Center at Hollywood Hills. As temperatures soared, the management delayed evacuating residents to a fully functioning hospital next door.

If their next of kin intend to sue, they can expect a long, hard and uncertain slog. Virtually all nursing homes ask new residents to sign away their right to go to court. Rather, they want any claim to go to arbitration, an out-of-court process with builtin advantages for corporate defendants.

Heuchan’s amendment would prohibit that strategy in Florida. It guarantees “the right to access courts and a jury system that allow for a speedy trial and relief and remedies, without limitations.” It also forbids facilities from asking patients, or others acting on their behalf, to waive those rights.

The Florida Health Care Association, the nursing home industry’s principal lobby, denies that its members require new patients to agree to go to arbitration — rather than to court — over claims of abuse or neglect.

“We are not allowed to mandate it,” says Bob Asztalos, the association’s chief lobbyist. “You have to distinguish it from the admissions package….it has to be voluntary.”

That’s a distinction without a difference, according to lawyers who specialize in suing nursing homes. They say the provision consenting to arbitration can be buried in as many as 80 pages of documents and there may be nothing on the signature page to warn what it means.

“They never explain it to the patients or families,” says Steve Watrel, a Tallahassee attorney. “Every facility I’m aware of, especially the big chains, they all require arbitration.” But they’ll often back down, he says, if the evidence shows that the patient who signed had dementia or that no one explained the consequences to family members.

“The point is that arbitration is not quicker, it’s not cheaper, it’s not easier, and it’s not fair,” Watrel says. “It’s hard to get a fair resolution without a jury of your peers.”

In contrast to the courthouse, arbitration in Florida requires the parties to pay for a panel of three lawyers, usually experienced ones who command $400 to $600 an hour. The average retainer, according to Watrel, is $25,000.

Last December, the Florida Supreme Court ruled 5-2 that Hampton Court Nursing Center, a Miami facility, could not enforce an arbitration agreement against a patient who had lost an eye to an infection. The man’s son, who was not his legal guardian, had signed the paperwork. The Third District Court of Appeal had held his signature binding on the parent as an “intended third-party beneficiary.” The patient died and the son is continuing the lawsuit in circuit court.

Three of the five justices in the majority in that case must retire in January 2019. Three of the nine members of the commission that will nominate their successors belong to large law firms that represent nursing homes. This is another reason to pass Heuchan’s amendment: nursing home patients need constitutional protection from potential political influences on the courts.

The Obama administration prohibited nursing homes from asking residents to waive their rights to go to court, but the industry found a federal judge in Mississippi to set that rule aside. The Trump Administration is proposes going in the opposite — and wrong — direction. It wants to allow nursing homes to demand consent to arbitration as a condition of admission. That’s one more reason why Florida needs Heuchan’s bill of rights.

TIME’s Nov. 27 edition told the story of an elderly nun who was raped by a staff member at an Alabama nursing home and was forced to accept arbitration. Dismissing the semen found on her bedsheet and the physical injuries doctors described, the single arbitrator in that case ruled against the nun because “I did not hear the emotion…that I would expect to hear from someone describing being sexually assaulted.”

The newsmagazine also noted a 2015 federal study that found that fewer than 7 percent of people who had signed a credit card arbitration agreement understood that it forfeited their right to sue the company.

Nursing homes have other defenses of recent origin. An influential article in the Fall 2003 Journal of Health Law advised owners to protect against lawsuits, as well as against Medicare and Medicaid sanctions, by distributing their real estate and other assets among corporate networks, none of which would be legally responsible for another.

Moreover, Florida allows health care providers to be self-insured without regard to whether the amounts set aside are sufficient.

Gov. Rick Scott, who is trying to force nursing homes to have backup generators with fuel enough to power their air conditioners for 96 hours, said in October that Florida should establish a constitutional protection for residents in long-term care.

Heuchan is one of Scott’s 15 appointees on the revision commission, but says he doesn’t know where the governor stands on the details. We asked the governor; he isn’t saying.

What Heuchan does know is how bitterly the industry is prepared to fight. He’s the target of guest columns from the nursing home lobby as well as of a complaint filed last week with the Florida Ethics Commission. The complaint says he’s a lobbyist whose clients include a law firm that sues nursing homes. The law firm could benefit from winning more and larger judgments if his proposal makes it into the Constitution. The complaint was filed by Conwell Hooper, head of an Atlanta-based organization called the American Senior Alliance.

It strikes us as curious that an organization that claims to represent the elderly would attack someone who is trying to help them. It raises suspicion that the Alliance may be fronting for the nursing home industry.

We asked Hooper who funds the Alliance. He declined to answer, citing its status as an organization that doesn’t have to pay taxes on its income or disclose its financial supporters. He did not respond to a follow-up question asking whether his support came from nursing homes. The Alliance is not a charity in the sense of being able to receive tax-exempt contributions, and there has been little mention of it in public print. It is not registered to lobby in Florida.

Proposition 88 is meritorious. It’s open to question — a proper issue before the Revision Commission — whether there should be reasonable limits on lawsuit recoveries from nursing homes. But there’s nothing to be said for allowing the industry to continue to try to close the courthouse doors.