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Elder advocate blasts lawyers and nursing homes for self-serving accord

A Senate committee Tuesday gave swift approval to a bill that is being panned by elder care advocates as a “sweetheart deal” designed to help nursing homes and trial lawyers make money but do little to improve the quality of care for residents. 

The Senate Health Policy Committee voted 8-1 for SB 670 after unanimously approving an amendment that will shield nursing home investors from lawsuits when their homes are accused of abuse and neglect in exchange for giving trial lawyers easier access to documents.

“This benefits elders as well as their loved ones,” said Sen. John Thrasher, a St. Augustine Republican who is sponsoring the bill. He said that by shielding nursing homes from lawsuits it provides them with “extra economic protection so they can stay in business” which is good for residents.

But Brian Lee, executive director of the Florida Family Care Association who served as the state’s elder care ombudsman for eight years, said the bill was less about protecting elders and more about protecting profits.

“Does keeping the industry viable mean protecting the people who cut back staff levels, who demand that their residents curb food costs and say they can only have one diaper per resident every eight hours?,’’ he said. “That’s ridiculous.”

The measure ends years of feuding between the Florida Health Care Association -- which represents nursing homes -- and the Florida Justice Association, which represents lawyers, Thrasher said. It also has the support of the AARP and the Florida Chamber of Commerce.

In the past, trial lawyers claimed the proposal to shield investors from liability would reward nursing homes for setting up shell companies to shield their owners from accountability, even though the investors were making critical budget decisions that had an affect on the quality of care.

The issue was so intense that Democrats effectively used it against former Rep. Ellyn Bogdanoff in her 2012 state Senate campaign against Sen. Maria Sachs, D-Delray Beach. Bogdanoff, a Fort Lauderdale Republican, who sponsored the bill for the industry was accused in television ads paid for by the Florida Democratic Party of having “protected shady nursing homes and sold out our loved ones.” 

The nursing home industry has countered that the reforms are needed because so-called “passive investors” were being targeted in lawsuits even though they had little responsibility for the quality of care.

The new proposal, which has been offered as an amendment in the House to a bill by Rep. Matt Gaetz, R-Shalimar, limits who can be sued to the owner and staff of the nursing home. If lawyers want to allege that passive directors played a direct role in the care of residents they would have to get a judge’s approval to include them in the lawsuit.

The bill also makes it more difficult for a plaintiff to collect punitive damages.

Trial lawyers defended their shift in policy by noting two new provisions added to the bill this year. One would allow the state to revoke the license of a nursing home operator who refused to pay a damage award.

Another provision would allow family members access to medical records of the alleged victim without having to go through the expense of setting up a family trust.

Those provisions guarantee a level of accountability not present in current law, said Paul Anderson, president of the Florida Justice Association.

“With that accountability, we gain adherence of greater or higher standards of care," he said.

But not all trial lawyers are supporting the rewrite. The Tampa-based law firm of Wilkes and McHugh, which specializes in nursing home litigation, vigorously opposes the deal as a bailout for large corporate nursing home chains.

“On its face, this is really kind of a no brainer,’’ said Brecht Heuchen, lobbyist for Wilkes and McHugh. “Why would passive investors be hauled into court for things they didn’t do?”

But he said that while the industry claims the private equity firms that buy up nursing homes are passive, in reality they “create corporate structures to shield the assets, upstream the money and protect the real identity of the owners.”

“What the industry is saying is these people spend hundreds of million of dollars and just sit back and hang out,” he said.

Lee said he believes that provision that allows for easier access to records is designed to so that lawyers representing families “can file quick lawsuits and nickel and dime the nursing homes.”

He predicted that if the bill passes and Gov. Rick Scott signs it into law, it will chase out small, independent and not-for-profit nursing homes and open the door for more corporate chains to take control.

Thrasher sees a different scenario. Absent the changes, he said, the chilling effect of suing the investors "will shut some of these people down and that is not in the best interest of the state." 

Lee predicts that anyone in Tallahassee who supports the bill could be punished by voters as Bogdanoff was in 2012. 

“I cannot imagine a legislator who would put their political career on the line in an election year with a bill that would victimize residents to seek redress and  shield egregious violators and corporations who reduce staff levels hurt people,’’ he said. “If Gov. Scott signs a bill to take away residents’ rights, he is the anti-senior governor.”

One measure of armor is the campaign contributions come from both the nursing home industry and the trial bar, some of the largest in the industry.

Legislators who voted for the bill on Tuesday include: Sens. Anitere Flores, R-Miami, Rene Garcia, R-Hialeah, Oscar Braynon, D-Miami, and Eleanor Sobel, D-Fort Lauderdale.

Only Sen. Arthenia Joyner, D-Tampa, voted against the bill because she said it shields the corporate owners from liability but exposes their staff --  administrators and nursing staff, including those who make only minimum wage.