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    Task force becomes nursing homes' ally

    A report suggests limiting lawsuits and damages to keep facilities out of financial danger. Plaintiffs' lawyers are outraged.

    By STEPHEN NOHLGREN

    © St. Petersburg Times, published December 15, 2000


    For several years, the nursing home industry has unsuccessfully lobbied the Legislature to clamp down on lawyers and residents who sue homes for millions. The industry contends that such suits are driving them out of business.

    Now the industry has gained a potent ally.

    A legislative task force charged with improving the lives of Florida's frail elders released a staff report Thursday that recommends caps on damage verdicts, tight restrictions on punitive damages and procedural changes that would make it much harder to sue.

    Damage payouts and liability insurance cost Florida nursing homes an average of $6,283 per bed, compared with $809 nationwide, according to one industry report. Some homes can't buy insurance coverage at all. Assisted-living homes are experiencing premium jumps as high as 74 percent.

    "We are sitting here with an industry that is about to go down the drain," said task force staff director Larry Polivka. "There are substantial bankruptcies. It's affecting non-profits as much as for-profits, and faith-based (homes) as well. We couldn't sit here and ignore it any more than the Legislature can."

    Ed Towey, spokesman for the industry's main trade group, the Florida Health Care Association, declined to comment until the full task force votes on the staff report on Monday and sends it to the governor and Legislature.

    However, plaintiffs' lawyers, who have warily monitored the task force's progress, reacted with outrage, accusing the task force staff of caving in to the industry.

    "If this (report) passes into law, nobody will bring a long-term care action," said Tampa lawyer James Wilkes, the dean of nursing home lawsuits.

    Before bringing a case to trial, a well-prepared lawyer will spend $250,000 to $350,000 for investigators, experts, accountants and paperwork, Wilkes said. The proposal would cap the damages around those amounts, "effectively bringing no relief at all."

    The problem is poor care, not lack of insurance, he said. "Insurance companies will not insure drunken drivers either. We don't have an insurance crisis. We have a nursing home care crisis."

    State AARP director Bentley Lipscomb said he was very disappointed.

    "This report is overwhelmingly directed toward protecting these facilities, not toward protecting the vulnerable individuals who live in them," he said. "If the state agencies responsible for ensuring quality in nursing care do their jobs, then the lawyers have nothing to sue on."

    Polivka, who directs the University of South Florida's Policy Exchange Center on Aging, worried that the litigation debate would overshadow dozens of other recommendations designed to improve care in nursing homes and steer frail people into less restrictive settings such as assisted-living homes and their own homes.

    By the year 2010, Florida will have to support 400,000 people who need help getting through the day, the report notes. Unless the state finds ways to divert them from expensive nursing homes, the state's long-term care bill will rise by $3-billion.

    The recommendations include cutting back on new nursing home construction, beefing up spending for community-based and at-home programs and experimenting with new HMOs that would provide nursing care, hospital care and at-home care for one set price.

    In a major departure from past policy, the recommendations would also require statewide minimum staffing levels for nursing homes and would increase Medicaid reimbursement to pay for them.

    Advocates have long focused on adequate staffing as the key to good nursing home care. These days, nursing home residents are much sicker than residents were two and three decades ago. Training and staff expertise have not kept pace with this development, the report says. Florida, like the rest of the nation, suffers from a huge shortage of nurses' aides.

    Nursing staff "deficiencies," the black marks that regulators cite during inspections, have doubled since 1993, and Florida has a higher deficiency rate than most states, the report notes.

    To combat these problems, the report recommends a carrot-and-stick approach, allowing regulators to shut down bad homes while awarding bonuses to homes that staff up and stay out of trouble.

    Although it cracks down on lawsuits, the report does counter some of the arguments that industry lobbyists have used in recent years while pleading for relief.

    Bankruptcies that have plagued the industry were caused by over-aggressive expansion and cuts in Medicare payments, not lawsuits, said the report. Debtors lost out, but residents weren't thrown out of homes. However, a second wave of bankruptcies, propelled by litigation, could result in homes closing down, the report warns.

    The task force staff studied four years' worth of lawsuits in Hillsborough County and found that the allegations dealt with bed sores, dehydration, falls and malnutrition.

    "These allegations are not frivolous, yet there isn't data available to determine if the incidents are due to poor care or inevitable health decline," the report says.

    The Task Force on the Availability and Affordability of Long-Term Care -- composed of 17 representatives of industry, government, lawyers and advocates -- has held statewide hearings for several months. It will vote on the staff recommendations Monday during a final hearing in Jacksonville.

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