It seems appropriate at the end of this year to look back and see what has been accomplished in terms of long term care in recent years and what our priorities need to be for the coming year.

 Florida:

      There were 2 long term care reform bills, one in the 2000 session (HB 1971), which primarily established the Gold Seal Program for rating nursing homes, and one in the 2001 session (SB 1202) which was a rather sweeping bill in which long term care residents traded some tort reform in exchange for a substantial list of much needed quality of care provisions, including incremental increases in staffing over a 3 year period.

       Also in 2001, a 5 year moratorium on new nursing home beds in Florida was enacted.  The intent of this was to try and steer the elderly and infirm into options other than permanent placement in a nursing home.

      The 2001 bill required more than $300 million new money to be budgeted for long term care, primarily for nursing home care, a much greater increase than was  allocated for long term care options.

      In  reviewing with local ombudsman and some family members and advocates around the state  the impact of these bills on actual care of residents in nursing homes I was told  that the homes which had the fewest staff, and had to increase their staff on 1/1/02, were showing some improvement – those which were already at or near the new level were not showing any marked improvement – however, most of the quality of care provisions would not have been noted in terms of their ordinary duties.  They expect more visible improvement will occur beginning 1/1/03, when additional staff will be required in every nursing home in Florida.

      There was not nearly as  great an  increase in the funds allocated to medicare waivers – i.e. for home and community based care – in that area there are frequently long waiting lists for care – and that is clearly the way most citizens want to move.

      There were rumblings in the 2002 session from the nursing home industry that the tort reform enacted with respect to liability in nursing homes in SB 1202 was not sufficient in their eyes --  they tested the waters but decided against coming back to get a lesser degree of accountability than exists after SB 1202 – why? -- immediately upon getting wind of the first rumblings from the industry Florida’s AARP publicly stood against any such action, and the industry effort was staved off (at least for now).

      Currently, there is a push for additional tort reform primarily for medical malpractice – tort reform is on the agenda in many states now – our concern for the Florida push is that it seems at the present time NOT TO EXCLUDE NURSING HOMES – 

IT IS IMPERATIVE THAT ANY NEW TORT REFORM IN FLORIDA  EXCLUDE NURSING HOMES – SINCE THAT HAS ALREADY BEEN ADDRESSED, AND THE PRICE FOR THAT HAS ALREADY BEEN PAID BY RESIDENT’S GIVING UP SUBSTANTIAL ACCOUNTABILITY.

Federal:

       In the Congressional session just ending  there were two beneficial  long term care and elder friendly bills that were proposed, but on which not much activity occurred, primarily due to the emphasis on the  War on Terror.  These are the “Elder Justice Bill”  (S 2933) with some far reaching protections for the elderly both in and out of nursing homes, and another  bill (S 2879), the Nursing Home Staffing Accountability Act, which would   require  reporting and monitoring of staffing numbers in nursing homes, both of  which we expect to move forward in the next session.  The language of S 2879 is also included in the proposed “Medicare Giveback” bill, so that any “giveback” will include this requirement.

        In addition,  Section 941 of the Benefits Improvement and Protection Act (BIPA – in the year 2000) included a requirement effective l/1/03  that all long term care facilities which accept Medicare or Medicaid funds must post “in a clearly” visible place” the number of nursing staff on duty on each shift.  Those who must be included in the daily posting are registered nurses, licensed practical nurses, and nurse aides directly responsible for resident care.  (note:  this impacts other states more than Florida, since Florida adopted a similar provision in 2001 in SB 1202)

       And CMS (the Centers for Medicare/Medicaid Services) unveiled its long term care “improvement” bill – a pilot program which ran for 6 months, and then unrolled into a nationwide program – in which they are publishing for the world to see a variety of information about every nursing home in the country – some information has also been published in newspapers around the country – first last April, and again in mid-November.  

       In addition to publishing information in the newspapers, and tons of TV ads, there are 2 places individuals can access this information.  One is to call 1=800-MEDICARE, a second is to visit www.medicare.gov and clicking on Nursing Home Compare.

       This program was touted as a means of improving care but it has been hard to see just how it will do that on any continuing basis.

       While I was in Washington I was told the program will cost $1 billion over a 3 year period.  It is being advertised as education for consumers to help them make good choices of where to place their loved ones who need long term care, whether acute, sub-acute, or permanent placement, even though it has been made clear that there is virtually no “choice” involved – people are placed on short term notice (not long enough to make any appropriate investigation) in the facility nearest their home (so transportation is easiest) which will accept their loved one (medicare residents are easier to place than medicaid residents, but may be “eased out” when the maximum medicare days are exhausted).

       Sadly, the information describes negative outcomes which are self reported by an industry which has been found by government agencies to be riddled with fraudulent activities, and has then been “risk adjusted” in varied scientific ways which makes the information quite difficult to understand and misleading at the very least.  

       However, a less advertised aspect of the program is now being conducted – that is, the QIO (Quality Improvement Organization) in every state will be working with 10% of the nursing homes in the state, on a more individual basis, to actually help them, with teams of experts, to improve care.  Again, sadly, the nursing homes chosen in Florida initially are not the homes that desperately need improvement (the bottom of the list – some of those over 400 which have been on Florida’s Watch List over the last few years) but the home  which are already performing in at least an acceptable way.  The directive to the QIO is that they must show at least an 8% improvement in those homes or be terminated.   (It should not be too hard  to help a good performing home to improve 8%.)

      Also, when I was in Washington everything I heard was that there was no money for staffing in nursing homes on a federal level, so I have made a list of quality of care provisions (based to some extent on Florida but not entirely)  and have been asking for these in lieu of federal staffing – they are either no cost, or low cost, but should help residents on a “now” basis.

 SO, WHAT IS OUR ROLE NOW?  We need to:

1.    Monitor to the max possible the provisions of SB 1202.

  Become familiar with the provisions that affect care – they were  posted elsewhere on this web site after the bill was signed by the governor – particularly note those which affect quality of care.

  There are a couple of ways every day people can help monitor care.  One is to volunteer as an ombudsman – this will place you in a nursing home, hands on.  This is not easy work and not everyone can do it.  Another is to adopt a nursing home – volunteer to help with activities, etc.  the more eyes there the better.  Document everything you see, hear, smell – time, place, witnesses – if it is not in writing it either does not exist or did not happen.

  If you have someone in a nursing home, ask questions.  Look at the info on the web site for that facility – ask they what they are doing to correct the problems shown.  If you run into problems feel free to contact the ombudsman for that area and if necessary, the State Agency for Health Care Administration – you can also call the fire department, the police department, the health department, etc.

  If you have someone in a nursing home, be sure there is an active and effective Family Council there – if not, start one – I can help with a Family Council manual.  Family Councils have a substantial amount of power under both state and federal law to impact resident care.

  Become familiar with the requirements for quality of care.  They were provided previously on this web site.  If you need more information about them, please let me know.

2.    Be sure your legislators in Tallahassee know that NURSING HOME TORT REFORM  SHOULD NOT BE INCLUDED in any new tort reform enacted in Florida.  IT HAS ALREADY BEEN DONE in connection with SB 1202.  Nursing home abuse and neglect on a daily basis, day in and day out,  is far different from medical malpractice.  If it appears federal tort reform  is on the table (and it looks like it will be ) and it appears to include nursing homes, do likewise with your Congressmen/women.

There is a tremendous push for total tort reform all over the country, not only in the medical malpractice and nursing home arenas, but in the rendering of all kinds of services.  I receive clippings from many states every day, and see it happening.

  My own feeling about this is that it is putting the card before the horse.  First give us quality care, then if the lawsuits don’t go away tort reform of some kind would be more appropriate.  

  I received a clipping yesterday about a survey which reported that more than 1/3 of doctors and 40% of Americans had already personally experienced medical malpractice. (New England Journal of Medicine 12/12/02)   I don’t know why – whether it is poorer education of professionals, less care and attention to detail,  less caring altogether about other people - what??  But it is clear that it is a problem, and probably is the underlying root of much of the huge medical cost which America is experiencing.  But we can’t delete accountability altogether, can we?

3.     Push your Congressmen/women to support a federal mandate for  the no-cost or low-cost quality of care provisions enacted in SB 1202 for Florida.  These include:

 a.  CNA’s just chart in medical record of resident assistance given with activities of daily living at the end of each shift – this is very important or continuity of care, and prevents the common comment that “i thought it was done on the last shift”  -- no cost or low cost.

 b.  An absolute maximum number of residents a nurse or cna can be assigned at any time for any reason:
   nurse – 40
   cna   - 20
(while this seems high – and it is – it would cut down on the worse abuses, as the case of a cna having 60 residents to care for located on 2 different floors)  -- probably low cost as I don’t believe the industry will actually stand up and say they have a lot of cases which exceed these numbers.)

 c.   CNA’s must receive some Alzheimers’  specific training (Florida provides 4 hours – not enough – but it is something.)

 d.   Residents/families  should have the unqualified right to monitor care with the use of electronic equipment – with reasonable notice to caregivers and staff – and appropriate focus on resident (not on roommate if any) without interference or intimidation or retaliation  – with such monitoring not to be used for litigation, except in the event of necessity to impeach a witness – as in the case of a denial of hitting a resident where the film actually clearly shows the resident being hit.

 e.  The provisions in the law regarding family councils should be expanded allowing family councils to operate within the law for the benefit of residents without interference or intimidation or retaliation from facilities – family councils already have many rights and power under both state and federal law – but facilities often adopt “policies” to restrict them contrary to the law.