Proposed Constitutional Change Promises Greater Protections to Residents of Care Facilities in Florida

Hurricane Irma, which devastated Florida last September, also created a hurricane of controversy in the state’s nursing and assisted living industry, leading to a proposed constitutional amendment. Prompted largely by a large number of deaths in a rehabilitation center in Hollywood Hills, fatalities that were indirectly blamed on the storm, Proposal 88 will create a “bill of rights” for the residents of these facilities, provided it becomes part of the state constitution.

Some 70,000 elderly and disabled inhabitants of the state live in nursing or assisted living homes and hospitals, although one observer noted that a large segment of the population is unaware of the conditions that often exist inside these facilities. The issue was brought to the forefront by Hurricane Irma, which knocked out power and thus the air conditioning at the Hollywood Hills center. An evacuation of the building was delayed, leading to at least 12 deaths that were attributable to the effects of the heat inside. The deaths were officially classified as homicides.
After the tragedy, Gov. Rick Scott recommended that such facilities have generators and sufficient fuel so they can maintain power in such emergencies. An agreement on this issue was reached earlier in the year, but critics of the current system have demanded that protections be guaranteed by the constitution. Brecht Heuchan, who is a member of the state’s Constitution Revision Commission, is attempting to address these concerns with Proposal 88, which was his idea. If the commission agrees to place it on the ballot, the measure will require approval by the voters of Florida.

Proposal 88 simply promises safety, cleanliness and comfort to nursing home and assisted living residents, guaranteeing them protection from the harm that can come from natural and climate-related disasters. Additionally, the measure requires such residents to be treated in a courteous and dignified manner. The measure also includes certain legal requirements that would protect residents from signing arbitration agreements that they may not understand.

Although certain protections are currently in effect, including a requirement that facilities be properly insured, the amount of coverage is not specified. According to its supporters, Proposal 88 will expand protections and also prevent state or federal legislators from repealing existing regulations in the future. If placed on the ballot, Proposal 88 seems likely for passage, with the measure receiving an 86 percent approval rating in the latest state poll. Heuchan is himself confident that it will indeed pass by a wide margin.

The abuse of nursing and assisted living residents is a national problem. One such case of mistreatment, which was reported in a national magazine last year, involved the sexual assault of an elderly nun by an employee at an Alabama facility. Subsequently, the victim was forced to resolve the case through arbitration rather than taking it to court. It was learned during the proceeding that the victim had been ignored, even though evidence of an assault was later found. One attorney who handles nursing home abuse cases believes that victims deserve legal intervention because the court system is fairer than agreements often made through arbitration.