Re: “Lawmakers mull nursing facility liability issues,” Nov. 6. An “advocacy” group founded and funded exclusively by the nursing home industry claims that lawsuits are forcing the industry to divert money away from quality care for residents. Resident advocates, on the other hand (myself among them), have asserted that lawsuits are a direct result of substandard care.

So which is it? Let us examine some indisputable facts surrounding the debate.

In 1995, the U.S. General Accounting Office reported widespread fraud and endemic corruption among nursing homes’ claims, and noted that the problem was “nationwide and growing in magnitude.” And recent SEC filings continue to document widespread allegations of Medicare fraud, insider trading, false claims and unjust enrichment.

And, despite a steady and dramatic rise in tax dollars going to nursing home corporations (25 percent increase per year during the last decade), five of the seven largest nursing home chains are now in bankruptcy. According to the GAO, this industrywide failure is the direct result of “excessive debt” fueled by “unrealistic projections” of government spending. In two separate findings, the GAO concluded that government funding was “generous,” “adequate” and even “excessive.”

In August, a Health Care Financing Administration report concluded that nursing home care in America is in dire straits. Most homes, the report found, were dangerously understaffed and that this understaffing was directly linked to widespread suffering and even the death of residents. And the for-profit chains, of which 78 percent of the Florida nursing homes are, were cited as the worst offenders.

A national survey of states that corresponds to the time insurance rates began to rise (compiled by the University of California, San Francisco) put Florida dead last when it comes to staffing deficiencies. Short staffing is, as HCFA noted, the single largest contributing factor when it comes to substandard care. As a result, Florida was below the national average in seven out of 10 care categories.

As a result, Florida’s care crisis emerged.

In October, Gov. Jeb Bush took the unprecedented step of attempting to decertify the Medicaid contracts of six nursing homes in the state, one of which was Colonial Oaks Rehabilitation Center in Fort Myers, because of substandard care. Colonial Oaks had been on the “Watch List,” a quarterly list of substandard Florida nursing homes, 10 times since late 1996.

So why then are insurers raising rates and exiting the market?

To put it quite plainly, insurers are scared away by bad behavior and bad risks. A recent study conducted by the Florida Department of Insurance discovered that every insurer leaving Florida was doing so nationally. Insurers are getting out of the business all across America, regardless of the laws in those states, because the nursing home corporations have repeatedly demonstrated themselves to be the worst kind of risk.

Lawsuits did not cause their problems. In fact the law they question has been on the books since 1980. Lawsuits did not force them to defraud taxpayers, nor did they make them cut staffing to dangerous levels. These are decisions that these corporations chose to make and now they want residents to once again pay the price. While the nursing home industry has created the conditions under which they suffer and rather than addressing the root causes of their failures (i.e. bad business practices, substandard care and short staffing), they point fingers at residents and have manufactured the notion of a “lawsuit crisis” to mask their misdeeds.

This industry is not at all interested in protecting our parents. They want to protect themselves from the wrath of angry jurors who despise the business decisions that lead to the horrifying conditions our parents endure. They want to protect themselves from families who have witnessed their parents abused and neglected in their facilities. And they want to protect themselves from taxpayers who seek retribution for the widespread fraud and corruption they have perpetrated.

So, whom are we going to protect?

Jim Wilkes is founder of the Tampa-based law firm Wilkes & McHugh, P.A., which represents nursing home residents in Florida and other states.

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