After reading this guide, you will have a complete understanding of the Florida Nursing Home Abuse and Neglect Laws. You will learn the federal and Florida specific laws that govern nursing homes, how Florida defines a nursing home, the rights each nursing home resident has, the difference between abuse and neglect, how nursing homes are staffed, how to report abuse and neglect, and all about nursing home lawsuits. After you finish reading, it should be clear that nursing home abuse laws are complicated. No one should ever pursue a case against a Florida nursing home or rehabilitation center without a very experienced nursing home abuse lawyer.
WHAT IS A FLORIDA NURSING HOME?
Florida Law 400.021(12) defines a nursing home as a facility that provides nursing care. This statutory definition is quite useless. It is so broad that if interpreted literally would include any facility that employs nurses. Fortunately, the Agency for health Care Administration (AHCA) has created a more useful definition. According to AHCA, a nursing home provides 24 hour a day nursing care, case management, health monitoring, personal care, nutritional meals, and special diets, physical, occupational, and speech therapy, social activities, and respite care for those who are ill or physically infirm. Today’s nursing homes often provide two main services. The traditional service they provide involves long term care for patients that may never leave. In this situation, a nursing home is often the last place an elderly person lives before they die. The second main service nursing homes provide involves acting as a nursing rehabilitation center that provides short term treatment for residents recovering from surgeries that require more intense physical and occupational therapy.
THE NURSING HOME REFORM ACT
The Federal Nursing Home Reform Act governs all nursing homes in the country that accept Medicare and Medicaid. The goal of the act is to minimize abuse and neglect and improve the care provided in nursing homes. Since all nursing homes and rehabilitation centers in Florida accept Medicare and Medicaid, this Federal oversight legislation will govern the care provided by Florida nursing homes.
The act does two major things. First it sets minimum standards that all nursing homes must follow and second, it creates a set of legal rights that all nursing home residents have. These minimum standards and resident rights are enforced by the state where the nursing home is domiciled. Any skilled nursing facility that fails to meet these minimum standards can face penalties, fines, and even license suspension.
FLORIDA MININUM STANDARDS FOR NURSING HOMES
Most states have adopted minimum standards for nursing homes that either incorporate the federal standards or increase them. In Florida, the state legislature has delegated the right to create minimum standards and enforce these standards to the Florida Agency for Health Care Administration (AHCA). You can find the Florida minimum standards in the Florida Administrative Code section 59A-4.
FLORIDA MINIMUM STAFFING LEVELS
All nursing homes must have sufficient staff to assure resident safety. In addition, Florida has created minimum staffing levels for its nursing home residents. Those minimum staffing levels are described in 400.23 Florida Statutes. Unfortunately, these minimum levels are often not enough to provide good quality care to residents with high acuity levels. In truth, most nursing home abuse and neglect occurs because facilities staff at the minimum staffing levels instead of providing enough staff to meet all the needs of the residents.
FLORIDA NURSING HOME RESIDENT RIGHTS
One of the most important things that came out of the Nursing Home Reform Act of 1987 was the creation of certain resident rights. The Florida Legislature codified many of these rights in 400.022 Florida Statutes. Some of the most important resident rights include:
- The right to be adequately informed of his or her medical condition and proposed treatment
- The right to receive adequate and appropriate health care and protective and support services
- The right to be free from Mental and physical abuse and physical and chemical restraints
WHAT IS NURSING HOME ABUSE AND NEGLECT
There are many different types of abuse and neglect. But to clearly understand them you must understand the difference between these two terms. Florida Law 415.102 clearly defines both of them. Although abuse and neglect have some overlap, they are different in one very important way. Whether it happens at home, in a nursing home, or in a rehabilitation center, abuse is considered an intentional or reckless act while neglect happens when a care giver should know better.
The Definition of Abuse in Florida
What is considered nursing home abuse is often defined in statutes of the state where the events happened. In Florida, the law defines abuse as any willful act or threatened act by a relative, caregiver, or household member which causes or is likely to cause significant impairment to a vulnerable adult’s physical mental, or emotional health. Abuse includes acts and omissions. This means a person can be guilty of abuse if they take a specific action toward a nursing home resident or they simply fail to help a nursing home resident that is in need of help.
The Definition of Neglect in Florida
What is considered nursing home neglect is often defined in the statutes of the state where the events happened. Neglect in Florida is defined as a failure or an omission by a caregiver to provide the care, supervision, or services necessary to maintain the physical and mental health of a vulnerable adult. This can include, but is not limited to, food, clothing, medicine, shelter, supervision, and medical services, that a reasonable person would believe is essential for the well-being of a vulnerable adult.
REPORTING NURSING HOME ABUSE AND NEGLECT
The Florida Agency for Health Care Administration (AHCA) oversees allegations of abuse and neglect in nursing homes. If a loved one has been abused or neglected in a nursing home its important to report it. You can report any nursing home by following this link to the AHCA website. ACHA will investigate the report and if they determine wrongdoing occurred, the agency will sanction the wrongdoers. You can also report any abuse or neglect to the state ombudsman in your area. The ombudsman will investigate and issue a report of their findings.
NURSING HOME ABUSE LAWSUIT
Florida law 400.023 governs nursing home abuse lawsuits. The law allows any nursing home resident or their personal representative to bring a lawsuit for acts that cause personal injury or death against a nursing home licensee, the licensees management company, the licensees managing employees, and any direct care staff that were involved in abusing or neglecting the resident. Successful lawsuits for acts that cause personal injury will entitle the resident to damages including past and future medical expenses, pain and suffering, mental anguish, loss of enjoyment of life, disability, and disfigurement.
PRESUIT INVESTIGATION PRIOR TO FILING A LAWSUIT
Florida Law 400.023 requires any person that wants to bring a lawsuit against a nursing home for abuse or neglect to investigate the claim and certify the investigation gave rise to a good faith belief that grounds exist for an action against each potential wrongdoer. In addition, prior to bringing the lawsuit, a claimant must notify any potential wrongdoer in writing by certified mail of the intent to bring a lawsuit, outline the claims of abuse or neglect, and outline the damages and injuries suffered by the resident. After the notice of intent is mailed, a claimant must wait 75 days while the potential wrongdoer investigates the claim and decides whether to settle the claim or reject it. In addition, the parties must go to a presuit mediation to occur within 60 days after the 75 day presuit period expires. If the case does not settle during this process, the claimant is free to file a lawsuit to hold the wrongdoer accountable for their actions.
Unfortunately, most cases do not settle during this presuit process. In fact, it is often a complete waste of time. It usually does nothing more than delay the process, allow evidence to get stale, and discourage potential claimants. Of course, the nursing homes loves this because the delays can lead to small settlements when unskilled lawyers give up after trying to handle nursing home cases. This is an important reason to hire an experienced nursing home abuse lawyer to handle a personal injury case against a nursing home.
STATUTE OF LIMITATIONS
*Updated Statute of Limitations as part of HB837 as of Friday, March 24th, 2023 the Florida Statute of Limitations for “An action founded on negligence” has been reduced to 2 years instead of 4 years.
Florida Law 400.0236 governs the time you have to bring a lawsuit for abuse and neglect against a nursing home. The Law requires any lawsuit to be brought within 2 years from the time the incident was discovered or within 2 years from the time the incident should have been discovered with the exercise of due diligence and in no event longer than 2 years from the date of the incident.
PUNITIVE DAMAGES AGAINST FLORIDA NURSING HOMES
Punitive damages are meant to punish nursing homes that are found guilty of the most severe forms of abuse and neglect. Unfortunately, the Florida legislature has made the decision it is more important to protect nursing homes from being punished for such outrageous conduct than it is to punish these abusers. The legislature did this by creating special laws to protect nursing homes from claims of punitive damages. These special protections are outlined in Florida Law 400.0237 and Florida Law 400.0238.