Assessing CRC Proposal 88

The Legislature and the federal government have recognized the need to prevent abuse and neglect of elderly residents in nursing homes and assisted living facilities. In addition to multiple agencies with overlapping authority regulating these facilities, the Legislature recognizes litigation as another tool for ensuring patients’ protection.

The Constitution Revision Commission is considering a proposal (P88) that, if approved by the voters, would create a new section in the Constitution to establish a “bill of rights” that expands litigation for residents of nursing homes and assisted living facilities in Florida. Florida TaxWatch has undertaken an analysis of P88 to guide Commission members in their deliberations regarding P88 and its committee substitute (CS/P88), and to educate the voters should the Commission recommend CS/P88 be placed on the ballot for the November 2018 General Election.

In deciding which amendments to present to the voters, Commission members must be guided by a sense of perspective and an overall view as to the nature and purpose of a state constitution, both in relation to the structure of our federal system and in relation to the internal purposes served by the state’s constitution. The Florida Constitution should, above all else, clearly define the relationship between government and those who are governed.

Matters that are ordinarily handled through the legislative process should be excluded from the Constitution. This would exclude the bills of rights for nursing home and assisted living facility residents, which currently reside in Florida law.

If the current bills of rights require amendment, then amending the Florida Statutes in which they reside is the appropriate remedy, not enumerating these rights in the Florida Constitution.

If approved by the voters, CS/P88 will essentially take away a resident’s federally-protected right to arbitration. The only option for resolving disputes will be litigation. Since arbitration represents a more streamlined and less expensive means of dispute resolution, relying on litigation will generally make it more expensive and more time consuming for residents to resolve disputes.

The expanded liability reflected in CS/P88 will require nursing home and assisted living facility owners to shift resources to cover more expensive and more frequent claims of abuse, negligence, neglect, exploitation, or violation of a resident’s rights by professionals and others who provide care and treatment.

Expanding the liability provisions to include passive investors and placing their non-business assets at risk will discourage risk-averse investment in, and pose additional funding challenges for, the nursing home and assisted living facility industries. Purchasing the additional liability insurance necessary to cover claims against professionals and others who provide care and treatment will drive up the costs further. These additional costs will be passed along to the residents and to Florida’s taxpayers.

Should CS/P88 go before the full Constitution Revision Commission, TaxWatch recommends that the Commission reject it. Should CS/P88 make it to the November 2018 General Election ballot, TaxWatch recommends that the voters reject it.