Christine Jordan Sexton
Florida regulators have flagged more than two dozen nursing homes and elder care facilities in the past year for continuing to bring in new residents even when they were unable to meet mandated staffing requirements, a recent court filing shows.
The Agency for Health Care Administration disclosed the regulatory actions amid a tussle the state is having with a Northwest Florida home that regulators tried to force into moving its residents out of the home due to staffing shortages. The state alleges understaffing led residents to go days without being bathed. Hygiene, regulators allege, was so poor at the facility that a “dark brown substance” was allegedly underneath every fingernail of one resident.
Gov Ron DeSantis recently signed legislation altering Florida’s mandated staffing requirements for nursing homes, a move sharply criticized by elder care advocates. But it was pushed by the nursing home industry, which said it needed the change to deal with staffing shortages.
Florida law requires nursing homes that fail to meet minimum staffing requirements for two consecutive days to self-impose a moratorium on new admissions. The moratorium must stay in effect until the facility is able to meet the mandated minimum requirements for six days.
In legal documents AHCA submitted in support of its April 16 emergency order suspending the license of Destin Health and Rehabilitation Center, regulators included a chart of 28 facilities that had continued to accept new patients even though they were required to put a moratorium in place.
Destin Health and Rehabilitation Center, which had also been initially ordered to transfer to more than 100 residents by April 25, is not included on the list of 28 facilities.
There are more than 700 licensed nursing homes in Florida. Given the number of facilities and staffing shortages, AARP Florida Associate State Director of Advocacy Zayne Smith suggested an overall figure of 29 is low.
“Those are just the ones that got caught,” Smith told Florida Politics.
Seven facilities on the list are managed by Josera LLC, the limited liability company that owns the name Independence Living Centers. Destin Health and Rehabilitation Center is also managed by Josera LLC.
Independence Living Centers was established in 2021 and is one of three companies formed following Consulate Health Care’s high-profile bankruptcy according to the Tampa Bay Times.
In its emergency order, AHCA Deputy Secretary Kimberly Smoak alleged the Destin home accepted 57 new residents despite being understaffed for nearly two months.
When it became clear to regulators the facility would not meet the deadline — which Smoak attributed to management “dragging its feet” — the state issued a second order giving the facility another week to transfer the residents.
But on April 26 the Destin home challenged the emergency order, alleging the state didn’t meet the burden of showing the residents who lived there were in immediate danger and that an emergency order denied the facility its rights to due process.
The First District Court of Appeal issued an order on April 30 quashing the state’s emergency order.
AHCA also included in its legal filing the sworn affidavit of Panhandle field officer manager Kara Beasley, who alleges several nursing home administrators who work for homes managed by Josera LLC resigned or were fired over insufficient staffing and the moratorium on accepting new residents.
AHCA filed Beasley’s affidavit with the appellate court in an amended filing just one day before the court was to decide on Destin’s request to quash the emergency order.
John Bradley, a Tampa attorney representing Destin Health and Rehabilitation Center, filed a motion with the court asking that it be allowed to respond to the affidavit.
“AHCA wants this court to believe that, because other facilities managed by the same management company were cited for deficiencies in staffing and moratorium declaration, this represents a trend of violations that makes any promise or effort to correct the issue and sustain that correction by Desitin unworthy or credit or belief,” Bradley wrote.
Bradley did not return Florida Politics’ call Thursday.
During the recently concluded 2022 Legislative Session, the nursing home industry initially tried to eliminate the moratorium on new admissions. As originally filed, HB 1239 and SB 804 lowered the minimum mandated nursing care requirements and also eliminated the ban on understaffed facilities accepting new residents.
AARP’s Smith told Florida Politics she recalled being surprised by the move.
“It didn’t even cross our minds they’d go after the moratorium. It was a no-brainer to us,” Smith said. “If you don’t have staff to take care of the existing residents why bring more in?”
Prior to the start of Session, AARP Florida had met with the nursing home industry, SEIU and the Florida Justice Association in the office of Sen. Ben Albritton, who sponsored the Senate bill. Albritton arranged the meeting among the stakeholders to discuss staffing shortages in the long-term care industry and potential solutions.
“The moratorium issue didn’t come up until we saw the bill,” she recalled.
At a second stakeholders meeting, Smith said she asked about the elimination of the moratorium.
“They just tap-danced around and would say ‘we have empty beds,’” Smith told Florida Politics Wednesday. “Then they’d just pivot to some other talking point but would never directly answer the question.”
The Florida Health Care Association, the state’s largest nursing home group, refused to comment on why it pushed to eliminate the moratorium.
AHCA reviews a facility’s time cards, payroll, or computer printouts of actual time worked to determine whether nursing homes are following minimum staffing requirements and are not inappropriately admitting new residents. The agency is required to conduct at least one unannounced site inspection on every licensed nursing home every 15 months. The agency reviews the timecards and payroll of staff as part of the unannounced site inspection.
The law authorizes the agency to levy a $1,000 fine against facilities that accept new residents when they are understaffed.
AARP opposed the move to lower the nursing care requirements in the bills and also lobbied to keep the moratorium in place. Moreover, Smith said AARP pushed for a change in the law to require AHCA to levy a $1,000 fine against facilities that ignore the law.
“Let’s put our money where our mouth is,” she said, recalling the AARP’s strategy. “If you are going to lower the minimum care then fine them. Make them hurt.”
AHCA is authorized to impose a fine of $1,000 on a facility that fails to self-impose a moratorium for noncompliance with minimum staffing requirements.
AHCA would not say how much the state has collected in fines from facilities that violated the law.
The move to eliminate the moratorium received little public debate or attention as most lawmakers focused instead on the changes to the minimum managed nursing care requirements facilities are required to provide.
The Finance and Facilities Committee was the first House health care panel to consider HB 1239, filed by Rep. Lauren Melo. The committee tagged on an amendment that eliminated the provision from the bill without mention or debate.
Albritton agreed to alter his bill to mirror the House’s proposal in order to pass the legislation.
Albritton told Florida Politics at the time “You have to be cognizant of where the other chamber is. As we were negotiating the bill, they felt a lot more comfortable keeping the moratorium as it is today in current law.”
