A Circuit Court judge ruled Thursday that the law pushed by Gov. Jeb Bush to keep a severely brain damaged woman alive is unconstitutional. The governor's office filed an immediate appeal.
The ruling by Pinellas Circuit Court Judge W. Douglas Baird ends the first legal fight over the October law, passed just days after Terri Schiavo was disconnected from the feeding and hydration tube which has kept her alive for more than a decade. Her husband Michael had fought a long court battle to carry out what he said were his wife's wishes not to be kept alive artificially but her parents have said there were no such wishes.
There has got to be a Loophole somewhere: Has anyone looked into this??
:
http://www.floridamalpractice.com/stat400.022.htm (The information on this site applies to Florida only)
400.022 Residents' rights.--
(1) All licensees of nursing home facilities shall adopt and make public a statement of the rights and responsibilities of
the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The
statement shall assure each resident the following:
(a) The right to civil and religious liberties, including knowledge of available choices and the right to independent
personal decision, which will not be infringed upon, and the right to encouragement and assistance from the staff of the
facility in the fullest possible exercise of these rights.
(b) The right to private and uncensored communication, including, but not limited to, receiving and sending unopened
correspondence, access to a telephone, visiting with any person of the resident's choice during visiting hours, and
overnight visitation outside the facility with family and friends in accordance with facility policies, physician orders, and
Title XVIII (Medicare) and Title XIX (Medicaid) of the Social Security Act regulations, without the resident's losing his or
her bed. Facility visiting hours shall be flexible, taking into consideration special circumstances such as, but not limited
to, out-of-town visitors and working relatives or friends. Unless otherwise indicated in the resident care plan, the
licensee shall, with the consent of the resident and in accordance with policies approved by the agency, permit
recognized volunteer groups, representatives of community-based legal, social, mental health, and leisure programs,
and members of the clergy access to the facility during visiting hours for the purpose of visiting with and providing
services to any resident.
(c) Any entity or individual that provides health, social, legal, or other services to a resident has the right to have
reasonable access to the resident. The resident has the right to deny or withdraw consent to access at any time by
any entity or individual. Notwithstanding the visiting policy of the facility, the following individuals must be permitted
immediate access to the resident:
1. Any representative of the federal or state government, including, but not limited to, representatives of the
Department of Children and Family Services, the Department of Health, the Agency for Health Care Administration, the
Office of the Attorney General, and the Department of Elderly Affairs; any law enforcement officer; members of the
state or local ombudsman council; and the resident's individual physician.
2. Subject to the resident's right to deny or withdraw consent, immediate family or other relatives of the resident.
The facility must allow representatives of the State Long-Term Care Ombudsman Council to examine a resident's
clinical records with the permission of the resident or the resident's legal representative and consistent with state law.
(d) The right to present grievances on behalf of himself or herself or others to the staff or administrator of the facility, to
governmental officials, or to any other person; to recommend changes in policies and services to facility personnel;
and to join with other residents or individuals within or outside the facility to work for improvements in resident care,
free from restraint, interference, coercion, discrimination, or reprisal. This right includes access to ombudsmen and
advocates and the right to be a member of, to be active in, and to associate with advocacy or special interest groups.
The right also includes the right to prompt efforts by the facility to resolve resident grievances, including grievances
with respect to the behavior of other residents.
(e) The right to organize and participate in resident groups in the facility and the right to have the resident's family meet
in the facility with the families of other residents.
(f) The right to participate in social, religious, and community activities that do not interfere with the rights of other
residents.
(g) The right to examine, upon reasonable request, the results of the most recent inspection of the facility conducted
by a federal or state agency and any plan of correction in effect with respect to the facility.
(h) The right to manage his or her own financial affairs or to delegate such responsibility to the licensee, but only to the
extent of the funds held in trust by the licensee for the resident. A quarterly accounting of any transactions made on
behalf of the resident shall be furnished to the resident or the person responsible for the resident. The facility may not
require a resident to deposit personal funds with the facility. However, upon written authorization of a resident, the
facility must hold, safeguard, manage, and account for the personal funds of the resident deposited with the facility as
follows:
1. The facility must establish and maintain a system that ensures a full, complete, and separate accounting, according
to generally accepted accounting principles, of each resident's personal funds entrusted to the facility on the resident's
behalf.
2. The accounting system established and maintained by the facility must preclude any commingling of resident funds
with facility funds or with the funds of any person other than another resident.
3. A quarterly accounting of any transaction made on behalf of the resident shall be furnished to the resident or the
person responsible for the resident.
4. Upon the death of a resident with personal funds deposited with the facility, the facility must convey within 30 days
the resident's funds, including interest, and a final accounting of those funds, to the individual or probate jurisdiction
administering the resident's estate, or, if a personal representative has not been appointed within 30 days, to the
resident's spouse or adult next of kin named in the beneficiary designation form provided for in s. 400.162(6).
5. The facility may not impose a charge against the personal funds of a resident for any item or service for which
payment is made under Title XVIII or Title XIX of the Social Security Act.
(i) The right to be fully informed, in writing and orally, prior to or at the time of admission and during his or her stay, of
services available in the facility and of related charges for such services, including any charges for services not
covered under Title XVIII or Title XIX of the Social Security Act or not covered by the basic per diem rates and of bed
reservation and refund policies of the facility.
(j) The right to be adequately informed of his or her medical condition and proposed treatment, unless the resident is
determined to be unable to provide informed consent under Florida law, or the right to be fully informed in advance of
any nonemergency changes in care or treatment that may affect the resident's well-being; and, except with respect to
a resident adjudged incompetent, the right to participate in the planning of all medical treatment, including the right to
refuse medication and treatment, unless otherwise indicated by the resident's physician; and to know the
consequences of such actions.
(k) The right to refuse medication or treatment and to be informed of the consequences of such decisions, unless
determined unable to provide informed consent under state law. When the resident refuses medication or treatment,
the nursing home facility must notify the resident or the resident's legal representative of the consequences of such
decision and must document the resident's decision in his or her medical record. The nursing home facility must
continue to provide other services the resident agrees to in accordance with the resident's care plan.
(l) The right to receive adequate and appropriate health care and protective and support services, including social
services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services
consistent with the resident care plan, with established and recognized practice standards within the community, and
with rules as adopted by the agency.
(m) The right to have privacy in treatment and in caring for personal needs; to close room doors and to have facility
personnel knock before entering the room, except in the case of an emergency or unless medically contraindicated;
and to security in storing and using personal possessions. Privacy of the resident's body shall be maintained during,
but not limited to, toileting, bathing, and other activities of personal hygiene, except as needed for resident safety or
assistance. Residents' personal and medical records shall be confidential and exempt from the provisions of s.
119.07(1).
(n) The right to be treated courteously, fairly, and with the fullest measure of dignity and to receive a written statement
and an oral explanation of the services provided by the licensee, including those required to be offered on an
as-needed basis.
(o) The right to be free from mental and physical abuse, corporal punishment, extended involuntary seclusion, and
from physical and chemical restraints, except those restraints authorized in writing by a physician for a specified and
limited period of time or as are necessitated by an emergency. In case of an emergency, restraint may be applied only
by a qualified licensed nurse who shall set forth in writing the circumstances requiring the use of restraint, and, in the
case of use of a chemical restraint, a physician shall be consulted immediately thereafter. Restraints may not be used
in lieu of staff supervision or merely for staff convenience, for punishment, or for reasons other than resident protection
or safety.
(p) The right to be transferred or discharged only for medical reasons or for the welfare of other residents, and the
right to be given reasonable advance notice of no less than 30 days of any involuntary transfer or discharge, except in
the case of an emergency as determined by a licensed professional on the staff of the nursing home, or in the case of
conflicting rules and regulations which govern Title XVIII or Title XIX of the Social Security Act. For nonpayment of a bill
for care received, the resident shall be given 30 days' advance notice. A licensee certified to provide services under
Title XIX of the Social Security Act may not transfer or discharge a resident solely because the source of payment for
care changes. Admission to a nursing home facility operated by a licensee certified to provide services under Title XIX
of the Social Security Act may not be conditioned upon a waiver of such right, and any document or provision in a
document which purports to waive or preclude such right is void and unenforceable. Any licensee certified to provide
services under Title XIX of the Social Security Act that obtains or attempts to obtain such a waiver from a resident or
potential resident shall be construed to have violated the resident's rights as established herein and is subject to
disciplinary action as provided in subsection (3). The resident and the family or representative of the resident shall be
consulted in choosing another facility.
(q) The right to freedom of choice in selecting a personal physician; to obtain pharmaceutical supplies and services
from a pharmacy of the resident's choice, at the resident's own expense or through Title XIX of the Social Security Act;
and to obtain information about, and to participate in, community-based activities programs, unless medically
contraindicated as documented by a physician in the resident's medical record. If a resident chooses to use a
community pharmacy and the facility in which the resident resides uses a unit-dose system, the pharmacy selected by
the resident shall be one that provides a compatible unit-dose system, provides service delivery, and stocks the drugs
normally used by long-term care residents. If a resident chooses to use a community pharmacy and the facility in
which the resident resides does not use a unit-dose system, the pharmacy selected by the resident shall be one that
provides service delivery and stocks the drugs normally used by long-term care residents.
(r) The right to retain and use personal clothing and possessions as space permits, unless to do so would infringe
upon the rights of other residents or unless medically contraindicated as documented in the resident's medical record
by a physician. If clothing is provided to the resident by the licensee, it shall be of reasonable fit.
(s) The right to have copies of the rules and regulations of the facility and an explanation of the responsibility of the
resident to obey all reasonable rules and regulations of the facility and to respect the personal rights and private
property of the other residents.
(t) The right to receive notice before the room of the resident in the facility is changed.
(u) The right to be informed of the bed reservation policy for a hospitalization. The nursing home shall inform a
private-pay resident and his or her responsible party that his or her bed will be reserved for any single hospitalization
for a period up to 30 days provided the nursing home receives reimbursement. Any resident who is a recipient of
assistance under Title XIX of the Social Security Act, or the resident's designee or legal representative, shall be
informed by the licensee that his or her bed will be reserved for any single hospitalization for the length of time for
which Title XIX reimbursement is available, up to 15 days; but that the bed will not be reserved if it is medically
determined by the agency that the resident will not need it or will not be able to return to the nursing home, or if the
agency determines that the nursing home's occupancy rate ensures the availability of a bed for the resident. Notice
shall be provided within 24 hours of the hospitalization.
(v) For residents of Medicaid or Medicare certified facilities, the right to challenge a decision by the facility to discharge
or transfer the resident, as required under Title 42 C.F.R. part 483.13.
(2) The licensee for each nursing home shall orally inform the resident of the resident's rights and provide a copy of
the statement required by subsection (1) to each resident or the resident's legal representative at or before the
resident's admission to a facility. The licensee shall provide a copy of the resident's rights to each staff member of the
facility. Each such licensee shall prepare a written plan and provide appropriate staff training to implement the
provisions of this section. The written statement of rights must include a statement that a resident may file a complaint
with the agency or local ombudsman council. The statement must be in boldfaced type and shall include the name,
address, and telephone numbers of the local ombudsman council and central abuse hotline where complaints may be
lodged.
(3) Any violation of the resident's rights set forth in this section shall constitute grounds for action by the agency under
the provisions of s. 400.102. In order to determine whether the licensee is adequately protecting residents' rights, the
annual inspection of the facility shall include private informal conversations with a sample of residents to discuss
residents' experiences within the facility with respect to rights specified in this section and general compliance with
standards, and consultation with the ombudsman council in the local planning and service area of the Department of
Elderly Affairs in which the nursing home is located.
(4) Any person who submits or reports a complaint concerning a suspected violation of the resident's rights or
concerning services or conditions in a facility or who testifies in any administrative or judicial proceeding arising from
such complaint shall have immunity from any criminal or civil liability therefore, unless that person has acted in bad
faith, with malicious purpose, or if the court finds that there was a complete absence of a justiciable issue of either law
or fact raised by the losing party.
History.--s. 8, ch. 76-201; s. 1, ch. 77-174; ss. 1, 9, ch. 79-268; ss. 2, 18, ch. 80-186; s. 2, ch. 81-318; ss. 11, 19, ch.
82-148; ss. 5, 79, 83, ch. 83-181; s. 1, ch. 84-144; s. 15, ch. 90-347; s. 30, ch. 93-177; ss. 3, 49, ch. 93-217; s. 764,
ch. 95-148; s. 226, ch. 96-406; s. 118, ch. 99-8; s. 5, ch. 99-394; ss. 70, 137, ch. 2000-349; s. 57, ch. 2000-367; s. 33,
ch. 2001-62.
Because of its size we have only included part of Florida's Nursing Home Statute
And:
Killer Medicare?
A Florida hospice was fined $8.9 million, wiping out profits for five years, because 176 of 15,426 dying
patients lived too long. Medicare rules say that hospice patients must be within six months of death when
they are admitted. As the hospice's executive director observed, "this is easier to tell after the fact than
before." To avoid fraud penalties in the future, a day before the six-month limit on life runs out, the hospice
would have to terminate the life of patients who have managed to hold on to it. This is what you get with
socialized medicine, which is what Medicare is.
To the liberal Circuit Court and then the even more liberal FL Supreme Court, elected by the liberals and complacent conservatives in FL.
Prospects for Terri have never been encouraging. We really need federal intervention here by the U.S. Department of Justice -- the state is too corrupt to bring about justice.
I recall the Florida Supreme Court all too well. Under what process or enticement would the DOJ step in? Aty. General Ashcroft is very pro life.
"George Felos is even lower that the excrement of the bacteria that feeds off protoplasm."
