Gov. DeSantis signs bill that ‘modernizes’ nursing home law by lowering ‘nursing’ care requirements

The required minimum amount of direct “nursing” care that nursing home residents receive will drop by 20%, according to legislation that Gov. Ron DeSantis signed into law Wednesday evening

In signing HB 1239, the Governor brushed aside criticism from advocates for the elderly who said it puts nursing home residents at risk. and delivered a victory to Florida’s long term care industry, which has tried for years to pare back the mandatory nursing hour requirements.

AARP Florida State Director Jeff Johnson sent DeSantis a letter last month urging the Governor to veto the bill.

Johnson said in a statement Wednesday that it was “deeply disappointing” for the Governor to OK the law considering that 40% of licensed nursing homes are on an Agency for Health Care Administration watch list.

“Nursing home staff will have to do more with less help because of this new law,” Johnson said. “This legislation does absolutely nothing to address the industry’s chronic staffing crisis, and AARP anticipates even further increases in worker burnout and CNA job losses.” 

“Let’s be clear: Nursing homes won’t magically have fewer patients to care for, they will have fewer trained staff to care for them. It’s appalling, but not surprising, that the nursing home industry’s desperation to protect its profits means putting patients at even more risk in these facilities. Floridians deserve better.”

While AARP may have lost its veto fight, the organization continues to oppose the changes and will track how the reductions in required “nursing” care adversely impact residents.

“We will continue to raise awareness for people who may be considering long-term care and focus on boosting home- and community-based services. Our message is simple: do whatever it takes to keep your loved ones out of Florida’s nursing homes,” Johnson said.

DeSantis held a press conference earlier Wednesday at a Naples long-term care facility to sign into law a bill that guarantees visitation rights to long term care residents and hospital residents.

The Governor was joined by HB 1239 sponsor Rep. Lauren Melo at the press conference, but DeSantis made no reference at the event to the controversial bill he was going to sign into law, along with 41 others, hours later.

One of the more outspoken critics of the proposal, Rep. Carlos Guillermo-Smith, blasted DeSantis on social media for the stealth move.

Hey Ronnie,

Why no big signing ceremony on @foxandfriends? 📝

Why not sign #HB1239 slashing minimum staffing standards for nursing home residents by 20% in front of lights and cameras? 📸

Why no media? 📺

What happened to #SeniorsFirst? https://t.co/h4SOE8Cgt1

— Rep. Carlos G Smith (@CarlosGSmith) April 7, 2022

“Hey Ronnie, Why no big signing ceremony on (Fox & Friends)? Why not sign (HB 1239) slashing minimum staffing standards for nursing home residents by 20% in front of lights and cameras? Why no media? What happened to #SeniorsFirst?” the Democrat from Orlando posted on his Twitter page Wednesday night.

Effectively immediately, nursing homes will be required to provide two hours of certified nursing assistant care per resident per day, a reduction from the current 2.5-hour requirement. The mandate that one hour of licensed nursing care be provided per resident, per day, remains in effect under the new law.

However, the requirement that 3.6 hours of “nursing” care be provided to each resident has been eliminated under the new law and replaced by a requirement that facilities provide 3.6 hours of “direct care” to the resident per day. The mandated three “nursing” hours can be included in the 3.6-hour requirement, but the remaining 0.6 hours can be provided by pharmacy, dietary, therapeutic, dental, podiatry, or mental health service workers and paid feeding assistants.

Leading Age Florida President and CEO Steve Bahmer said the new law will help nursing home providers reopen long-term care beds.

“The workforce crisis has forced high-quality providers to take beds offline, limiting and potentially jeopardizing Florida seniors’ access to high-quality care. This legislation gives providers the flexibility to utilize, and to be credited for, the highly trained and skilled professionals who are already on staff and are already providing high quality care. And it will help providers reopen beds and ensure Florida’s seniors have access to the high-quality care they need.”

Florida Health Care Association (FHCA) CEO Emmett Reed said by expanding the care beyond nursing, the law allows other trained professionals to work with the residents and allows for the delivery of what he called “more personalized care.”

“Every nurse, Certified Nursing Assistant, long term care staff member, and nursing center resident has Governor DeSantis to thank today for ensuring higher quality care for Florida’s elderly and people with disabilities,” Reed said in a prepared statement. “This legislation will bring more individualized, comprehensive care to residents while easing the burdens posed by significant staffing challenges.”

The FHCA, which represents most of the state’s for-profit nursing homes, had been pushing for nursing home staff reductions since before the start of the COVID-19 pandemic two years ago, arguing that the 20-plus-year-old staffing requirement is antiquated, and that today’s nursing home resident is more medically complex.

But until now, its efforts had been unsuccessful.

The game changer was when the FHCA reached an agreement this year with the Florida Justice Association (FJA), the group that represents the state’s trial lawyers, and traditionally has been at odds with the long-term care industry.

As part of the agreement, the FJA backed off its opposition to the reduced nursing requirements and, in exchange, the industry agreed to changes the trial attorneys sought.

One such change the FJA secured was a tweak to make clear that a nursing home’s compliance with the state’s mandated staffing requirements is inadmissible as evidence of compliance with federal standards.

Another change cracks down on nursing homes that change ownership to try to avoid paying outstanding settlements. When the new law takes effect, nursing homes with outstanding unpaid settlements will be required to inform each pending claimant or the claimant’s attorney of a pending change of ownership. Claimants or their attorneys have 30 days to object to the change in ownership.

“Florida’s most vulnerable citizens and their families need to have the confidence that when they enter a care facility they will be well cared for and protected, even amidst increased health risks or staffing challenges,” said Jacksonville attorney and Chairman of the FJA’s Nursing Home Committee, Steve Watrel. The new law creates a more responsible, resident-centered nursing home industry and a driver for good behavior by providers by virtue of accountability in the court system.”

In addition to signing HB 1239 the Governor also signed into law HB 539, which, for the first time, requires nursing homes, and their home offices, to submit their audited “actual experience” with the state. The nursing homes will be required to submit a fiscal year-end balance sheet, income statement, statement of cash flow, and statement of retained earnings. Filed by Rep. Jay Trumbull, chairman of the House Appropriations Committee, the bill was a top priority for the House of Representatives.