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ANOTHER OPINION Nursing home bill of rights deserves support

The Daily Commercial - 12/20/2017

T wo months after 12 elderly people died of insufferable heat at a nursing home in Hollywood, Fla. - 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 built-in 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."

This editorial first appeared in the South Florida Sun Sentinel.

 
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