Although it might seem that providing high-quality care and treating elderly nursing home patients with dignity would be something facilities would inherently prioritize their safety on moral principles, the unfortunate reality is that far too many don’t. Even with the laws and regulations in place, patients still fall through the cracks when they aren’t consistently enforced or when penalties have no teeth. Criminal statutes against elder abuse were always in place, but with nursing home rights and standards also codified Chapter 400 of Florida Statutes, state authorities are given the power to impose fines on nursing homes that fail to follow the law and put patients at risk – even if no one was actually harmed by the violation. However, serious questions regarding the effectiveness of these state regulations for nursing homes have been raised.
Why Florida State Regulations for Nursing Homes May Not Go Far Enough
Many fines for regulatory breaches by nursing homes are ultimately negotiated down to a much lower sum. Most total just a few thousand dollars, making the penalty ineffective as an incentive to follow the law.
Furthermore, as our Fort Lauderdale nursing home injury attorneys have seen evolving firsthand, there has been a shift in facility structure over the past decade that not only made it more likely profits would be prioritized over people, but also that those responsible for managing facilities are better insulated from direct penalty. First, there was a shift from the non-profit nursing home facility model to the situation we have now, which is the majority of nursing homes in Florida (and the U.S.) are for-profit. Because these facilities are so highly lucrative, the fines have less impact (especially if the corrective measure is likely to be more costly than the fine). Secondly, an increasing number of nursing homes owners began adopting complex corporate structures that effectively removed the owners and sometimes even top administrators from the risk of liability when nursing home negligence, neglect or abuse occurred resulting in injury or death. The U.S. Department of Health and Human Services issued a report in 2006 commenting on this practice, noting the new corporate structure of most nursing homes was “heavily influenced by factors such as litigation…” Given all this, it should come as no surprise that for-profit facilities tend to have more systemic issues with under-staffing and poor patient care. Finally, the rise in popularity of arbitration agreements – compelling those who allege nursing home abuse and neglect to resolve the dispute confidentially with an arbitrator out-of-court – means injury and wrongful death cases that would have been of great public interest are effectively swept under the rug – and often decided more in favor of the nursing homes.
Furthermore, regulatory inspection of a nursing home may occur only every couple years unless there has been a problem. Instead, regulators rely on nursing homes to self-report serious incidents. As you can imagine, the pictures painted in those reports are often appear quite a bit rosier than reality.
Then there is the fact that government oversight is apparently less effective than even previously thought in compelling nursing homes to follow Florida state regulations for nursing homes and correct serious safety violations. Florida Today reported earlier this year that a federal audit of Florida’s Agency for Health Care Administration (the one responsible for overseeing nursing homes) consistently failed to follow up on whether nursing homes cited for hundreds of safety and regulatory violations were actually correcting those problems. What’s more, the AHCA rarely if ever uses its toughest sanctions, which include stiff fines, withdrawing federal funding, freezing their ability to take on new patients or ordering closure.
In one case highlighted by the newspaper, one nursing home was cited for multiple violations of state regulations for nursing homes, including failure to assess accurately whether a resident needed oxygen. The next month, the AHCA indicated the problem was corrected and nursing staffers had been retrained – yet there was zero documentation to support this assertion. This is why you should have a Florida nursing home attorney knowledgeable in all aspects of nursing home law that can fight for you and knows how to best navigate the state regulations for nursing homes.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Feds: Florida not checking to ensure nursing homes correct problems discovered by inspectors, May 9, 2018, By Ryan Mills and Melanie Payne, USA Today Network
More Blog Entries:
Sepsis, Bedsores Among Leading Examples of Wrongful Death Cases in Nursing Homes, Oct. 9, 2018, Fort Lauderdale Nursing Home Injury Attorney Blog