1 See Department of Health & Human Serv., Americans Less Likely to Use Nursing Home Care Today (last modified Jan. 23, 1997) <http://www.os.dhhs.gov/news/press/1997pres/970123b.html>. See generally Barry R. Furrow Et Al., Health Law: Cases, Materials and Problems 112-13 (3d ed. 1997) (noting that a nursing home is responsible for the “complete and total environment of their residents over a very long time”); Medical Economics Co. Online, Understanding the Long-Term Care Industry (visited May 13, 1999) <http://www.medec.com/ltcn/ltcfaq.html> (discussing how nursing facilities provide intensive nursing care 24 hours a day).

2 Cf. Lindsay Peterson, Brandon Senator Sponsors Bill to Limit Nursing Home Liability, Tampa Trib., Mar. 14, 1997, at 6, available in 1997 WL 7039894 (commenting that the public looks primarily to the state to monitor nursing home quality). See generally David Skipper, Florida Health Care Ass'n, Look Beneath the Surface of Nursing Home Sensationalism (visited May 13, 1999) <http://www.fhca.org/fhca/news/look.htm> (noting that “as taxpayers we all pay federal income taxes and state taxes to fund the oversight of Florida's nursing homes”).'

3 See Michael Moss & Chris Adams, For Medicaid Patients, Doors Slam Closed, Wall St. J., Apr. 7, 1998, at Bl, available in 1998 WL-WSJ 3489185.

4 See id. On March 25, 1999, President Clinton signed the Nursing Home Resident Protection Act of 1999, which forbids facilities from evicting Medicaid patients solely because of payment status. See Office of the Press Secretary, The White House, President Clinton Unveils New Protections for Nursing Home Residents (Mar. 25, 1999) <http://www.pub.whitehouse.gOv/uri-res/I2R7urn:pdi://oma.eop.gov.us/1999/3/26/1.text.1>.

5 See Moss & Adams, supra note 3, at Bl. In its Florida homes, the company receives approximately $32,400 a year for each Medicaid patient, whereas private patients pay an additional $9,000 to $18,000 per year. See Jeff Testerman, State Agency Blasts Nursing Home Company, St. Petersburg Times, Apr. 10, 1998, at IB, available in 1998 WL 4256185.

6 See Agency for Health Care Admin., Health Care Agency Sanctions Tampa Nursing Home (Apr. 10, 1998) <http://www.http://www.fdhc.state.fl.us/pio/press/Vencor.htmfdhc.state.fl.us/pio/press/Vencor.htm> (noting that the State of Florida fined the chain $260,000, and recommended a federal fine of $100,000); see also Vencor Settlement Goes to State and School, Compliance Monitor (Opus Communications, Healthwave, Marblehead, M.A.), (Nov. 18, 1998) <http://www.http://www.opuscomm.com/other/cml998/981118.htmlopuscomm.com/other/cml998/981118.html> (noting that Vencor's $270,000 settlement with the state was split between the state's Patient Protection Trust Fund and the University of South Florida's Department of Aging and Mental Health).

7 See Adams, Harold J., Criticism Leads Vencor to Halt Eviction of Medicaid Patients, The Courier-J., Apr. 10, 1998Google Scholar, at 10F, available in 1998 WL 2101797. The chain now plans to decrease its Medicaid population through attrition, terminating Medicaid beds as residents expire or leave the facility voluntarily. See Chris Adams, Vencor Gets $260,000 Fine in Florida for Evicting Nursing-Home Patients, Wall St. J., Apr. 13, 1998, at A4, available in 1998 WL-WSJ 3489883.

8 Nursing Homes Discriminate Against Elderly Whose Bills are Paid by Medicaid, Claiming Government Doesn'T Pay Full Rate (NBC news broadcast, Apr. 9, 1998) (statement of Bruce Lunsford).

9 See Peterson, supra note 2, at 6.

10 See, e.g., One Man's Hideous Neglect and Death Fairly Scream for Nursing Home Reform, Tampa Trib., Mar. 28, 1999, at 2, available in 1999 WL 4649048.

11 See Theo Francis, Nursing-Home Bill Pushes Residents' Rights, Ark. Democrat-Gazette, Jan. 27, 1999, at Dl, available in Lexis, Ark Library, Arkdem File.

12 See Administration on Aging, A Profile of Older Americans: 1998 (last modified Feb. 10, 1999) <http://pr.aoa.dhhs.gOv/aoa/stats/profile/#older> [hereinafter Profile].

13 See id. This number represents an increase of 9.1% (2.8 million) since 1990, whereas the under 65 population only increased 7%. See id. The percentage has more than tripled since 1900, and in 1997, they represented about one in every eight Americans. See id. Elderly generally refers to those persons 65 years or older. See id.

14 See Long Term Care in the United States, Keynotes (American Health Care Ass'n, Washington, D.C.), June 1998, at <http://www.ahca.org/research/keynotes/us.htm> (noting that an estimated 1.5 million elderly individuals received care in nursing home facilities in 1997); American Health Care Ass'n, The Nursing Facility Sourcebook, 1998 (visited May 13, 1999) <http://www.ahca.org/research/nftoc.htm> [hereinafter The Nursing Facility Sourcebook].

15 See id. Nursing home costs represented 7.6% of the 1997 national health expenditures. See id.

16 See The Nursing Facility Sourcebook, supra note 14. Medicaid is the largest payer for nursing home services, providing for 68% of nursing home residents in 1997. See American Health Care Ass'n, Today's Nursing Facilities and the People They Serve (visited May 13 1999) <http://www.ahca.org/who/profile3.htm> [hereinafter Today's Nursing Facilities]; see also Health Care Fin. Admin., The Medicaid Program (last modified Sept. 11, 1996) <http://www.hcfa.gov/medicaid/mcdsta95.htm> (noting that Medicaid pays for over 50% of nursing home costs). Private payment and Medicare accounted for 23% and 9% of nursing home payments, respectively. See Today's Nursing Facilities, supra.

17 See Profile, supra note 12. The oldest of the elderly (85 years of age and older) constitutes the fastest growing segment of the elderly population. See American Health Care Ass'n, Profile of An Aging Nation: U.S. Census Bureau Facts (visited May 13, 1999) <http://www.ahca.org/who/profile2.htm>. In 1997, this group encompassed 3.9 million people. See U.S. Census Bureau, Resident Population of the United States: Estimates by Age & Sex (visited May 13, 1999) <http://www.census.gov/population/estimates/nation/intfile2-l.txt>. Demographers expect it to grow 125%, reaching approximately 8.5 million by 2030. See U.S. Census Bureau, Resident Population of the United States: Middle Series Projection, 2015-2030 by Age & Sex (visited May 13, 1999) <http://www.census.gov/population/projections/nation/nas/npasl530.txt>.

18 The nursing home industry is projected to increase 400% in the next 30 years. See Larry Reibstein & Ana Figueroa, Nursing Home Verdicts: There's Guilt All Round, Newsweek, July 27, 1998, at 34.

19 A 67-year-old mother shot and killed her 42-year-old daughter out of fear of impending nursing home placement. See Mom Shot Daughter, Deputies Say, St. Petersburg Times, Mar. 10, 1999, at 5B, available in 1999 WL 3308911.

20 See Nursing Home Inspection Cuts Shelved, Florida Times-Union, Dec. 18, 1996, at A6, available in 1996 WL 1596704.

21 See, e.g., Cardone, Clifford E., Battling Nursing Home Neglect: Finding the Right Legal Pieces, 44 LA. B.J. 508, 509 (1997)Google Scholar.

22 See Pub. L. No. 100-203, 101 Stat. 1330-160 (codified in scattered sections of 42 U.S.C.).

23 42 U.S.C.A. § 1396r(b)(l) (1998).

24 Id. § 1396r(b)(2).

25 42 C.F.R. §483(1998).

26 See id. §§ 483.13 (Resident Behavior and Facility Practices), .15 (Quality of Life), .25 (Quality of Care). Examples of federally mandated rights include: “the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion,” id. § 483.13(b), “the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident's medical symptoms,” id. § 483.13(a), and “the right to choose activities, schedules, and health care consistent with his or her interests, assessments, and plans of care,” id. § 483.15(b)(1).

27 See 42 U.S.C. § 1396r(g)(l)(A).

28 See id. § 1396r(g)(2)(A)(i), (3)(A); Nursing Home Inspection Cuts Shelved, supra note 20, at A6.

29 See Bruce C. Vladeck, Remarks Before the National Health Lawyers Association (Jan. 24, 1996) (on file with author).

30 See id. Other improvements were seen in decreased hospital admissions from nursing homes (25%), lower use of permanent indwelling catheters (30%) and fewer antipsychotic drug prescriptions (25 to 35%). See id.

31 See Nursing Homes: When a Loved One Needs Care, 1995 Consumer Rep. 518, 518; Mark Thompson, Fatal Neglect, Time, Oct. 27, 1997, at 34, 36.

32 See Nursing Homes, supra note 31, at 518. Forty-five percent of all facilities failed to respect residents' dignity adequately. See id. at 524. One in four nursing homes received at least one citation for allowing decubitus ulcers (bed sores) to develop. See id.

33 Thompson, supra note 31, at 34.

34 Nursing Home Inspection Cuts Shelved, supra note 20, at A6.

35 Peter Mitchell, With New Attitude and New Fines, State Goes After Nursing Homes, Wall ST. J., Feb. 14, 1996, at Fl, available in 1996 WL-WSJ3091018 [hereinafter With New Attitude].

36 See 42 C.F.R. § 488.417(b)(1).

37 See With New Attitude, supra note 35, at Fl.

38 See 42 C.F.R. §§ 488.401-456 (1998).

39 See id. §§ 488.430-.444.

40 See id. §488.417.

41 See id. §488.418.

42 See id. § 488.426.

43 See id. § 488.456. Other remedies include: assigning temporary management, see id. § 488.415, state monitoring, see id. § 488.422, directed plan of correction, see id. § 488.424, directed in-service training, see id. § 488.425.

44 See Vladeck, supra note 29.

45 See Center for Long Term Care, Health Care Fin. Admin., Survey, Certification & Enforcement of Skilled Nursing Facilities & Nursing Facilities: Pocket Reference Guide [hereinafter Pocket Reference Guide]. The grid measures potential harm to the patient on the x-axis and frequency of the violation on the y-axis. See id.

46 See id.; With New Altitude, supra note 35, at Fl.

47 See With New Attitude, supra note 35, at Fl.

49 See id.

50 See Thompson, supra note 31, at 34. 51 See id. at 35.

52 See id.

53 See id. at 34.

54 See id. at 35.

55 Id. at 34.

56 See Michael Moss, Backlog Stymies Crackdown, News & Observer (Raleigh, NC), Jan. 20, 1999, at Al, available in 1999 WL 2735097.

57 See id.

58 See id.

59 See Robert Pear, Nursing Homes to Face More Scrutiny, Palm Beach Post, July 22, 1998, at 1A, available in WL, PB-POST-C database.

60 See id.

61 See Susan Sward, Clinton Calls for Reform of Nursing Homes Industry, S.F. Chron., July 22, 1998, at Al, available in Lexis, News Library, Sfchron File.

62 See Pear, supra note 59, at 1A.

63 See Nursing Home Complaint Investigation and Enforcement: Hearing Before the Senate Select Comm. on Aging, 106th Cong. (1999) (testimony of Mike Hash, Deputy Administrator, Health Care Financing Administration), available in 1999 WL 8086849 [hereinafter Testimony of Hash].

64 See General Accounting Office, Nursing Homes: Additional Steps Needed to Strengthen Enforcement of Federal Quality Standards, Gao/Hehs-99-46 (1999) [hereinafter GAO REPORT]. “[S]ome nursing homes aren't resolving deep-seated problems uncovered in state or federal inspections, but [are] making only temporary make-shift corrections to resolve specific complaints and avoid fines.” Lance Gay, Probe Cites Repeated Abuse of Elderly in Some Nursing Homes, Press J., Mar. 19, 1999, at A19, available in Lexis, News Library, Prsjnl File.

65 See Tough Talk on Nursing Home Quality, Compliance Monitor (Opus Communications, Healthwave, Marblehead, M.A.), Oct. 28, 1998, at <http://www.opuscomm.com/other/cml998/981028.html> (noting recent enforcement actions by the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services). The OIG also vowed further investigations of the nursing home industry. See id. “The Justice Department opened 54 new cases against nursing homes in 1997,” as compared with just five cases in 1994. See id. Historically, the OIG has been reluctant to shut a facility down, but Inspector General June Gibbs Brown noted that “sometimes, exclusion may be the best answer.” Id.

66 See id.; Gao Report, supra note 64, at 3-4.

67 See Testimony of Hash, supra note 63.

68 For example, states can now assess fines up to $10,000 for individual health and safety violations. See Health Care Fin. Admin., Fact Sheet: Assuring Quality Care for Nursing Home Residents (Mar. 16, 1999) <http://www.hcfa.gov/facts/fs031699.htm>.

69 States must investigate any allegation of resident abuse or neglect within 10 days. See id. “[CJomplaints alleging immediate jeopardy to residents must be investigated within two days.” Testimony of Hash, supra note 63.

70 States must report all confirmed violations to Health Care Financing Administration (HCFA) for tracking in a compliance database. See Fact Sheet, supra note 68.

71 See id.

72 See id.

73 See American Health Care Ass'n, AHCA Responds to Release of General Accounting Office Study of Enforcement (Mar. 18, 1999) <http://www.ahca.org/brief/nr990318.htm>.

74 See id. Indeed, the federal policy actually forbids surveyors “from drawing on their experience to offer advice to long term care professionals on how to improve care and services.” Id.

75 See Health Care Fin. Admin., Nursing Home Compare (last modified May 20, 1999) <http://www.medicare.gov/nursinhttp://www.opuscomm.com/other/cml998/981014.htmlg/home.asp> (containing inspection information on every Medicareand Medicaid-certified nursing home in the country).

76 See Don't Fall Into HCFA's Web, Compliance Monitor (Opus Communications, Healthwave, Marblehead, M.A.), Oct. 14, 1998, at <http://www.opuscomm.com/other/cml998/981014.html>. The website provides links to search each facility's most recent survey results. See id.

77 See id. The industry claims that the information will be misleading because “HCFA … allowfs] outdated negative information to remain on the site long after a nursing home corrects a deficiency.” Id.

78 See Gao Report, supra note 64, at 36.

79 See U.S. Census Bureau, Estimates of the Population of the U.S., Regions, and States by Selected Age Groups and Sex: Annual Time Series, July 1, 1990 to July 1, 1997 (visited May 17, 1999) <http://www.census.gov/population/estimates/state/97agesex.txt>. From 1990-1996, the state's elderly population increased 12.8%. See Profile, supra note 12.

80 See U.S. Census Bureau, Florida's Population Projections: 1995 to 2025 (visited Nov. 19, 1998) <http://www.census.gov/population/projections/state/9525rank/flprsrel.txt>.

81 The Census Bureau expects “Florida to rank the highest in the number of persons gained through net internal migration between 1995 and 2025, gaining 3.9 million persons from other states.” Id. Given the lure of the “Sunshine State,” the elderly will most likely comprise a majority of this migration.

82 See id. The U.S. Census Bureau projects Florida's elderly population to reach 5.44 million people, or 26.3% of the state's total population, by 2025. See id.

83 In 1997, 64,734 people received care in Florida's nursing homes. See Long Term Care in Florida, Keynotes (American Health Care Ass'n, Washington, D.C.), June 1998, at <http://www.ahca.org/research/keynotes/fl.htm>.

84 See Florida Attorney Finds Profitable Niche Suing Nursing Homes, The Brown Univ. Long-Term Care Quality Letter (Manisses Communications Group, Inc., R.I.), July 29, 1996, available in Lexis, Genmed Library, Allnws File.

85 See Agency for Health Care Admin., Agency for Health Care Administration Releases Quarterly List of Conditional-Rated Nursing Homes (Aug. 5, 1997) <http://www.fdhc.state.fl.us/pio/press/nhupdt4.html> [hereinafter Ahca 8-5-97].

86 See Florida Attorney Finds Profitable Niche Suing Nursing Homes, supra note 84. The current average per diem Medicaid rate is $94.38. See Long Term Care in Florida, supra note 83, at <http://www.ahca.org/research/keynotes/fl.htm>.

87 See Long Term Care in Florida, supra note 83, at <http://www.ahca.org/research/keynotes/fl.htm>.

88 Crotts, Troy J. & Martinez, Daniel A., The Nursing Home Residents' Rights Act—A Good Idea Gone Bad!, 26 Stetson L. Rev. 599, 599 (1996)Google Scholar (quoting Committee on Health & Rehabilitative Serv., Nursing Homes: Senate Staff Analysis and Economic Impact Statement, S. Bill no. 80-1218 (Fla. 1980)).

89 See id. at 605.

90 See id.

91 Some of the provisions in Chapter 400's Bill of Rights include the right: to adequate and appropriate health care; to privacy; to freedom from mental and physical abuse, corporal punishment, extended involuntary seclusion, and physical and chemical restraints; and to be treated courteously, fairly and with the fullest measure of dignity. See Fla. Stat. § 400.022(1)(l-n) (1998).

92 See id. § 400.022(3) (1998).

93 See Crotts & Martinez, supra note 88, at 606.

94 See Fla. Stat. § 400.023.

95 See id. §400.023(1).

96 See id.

97 See id.

98 See id. § 400.023(5). Florida courts differ in their application of the punitive damages standard under § 400.023(5). Compare Key West Convalescent Ctr., Inc. v. Doherty, 619 So. 2d 367, 369 (Fla. Dist. Ct. App. 1993) (interpreting § 400.023 to require willful,” wanton and intentional conduct) with Beverly Enterprises v. Spilman, 661 So. 2d 867, 870-71, 873-74 (Fla. Dist. Ct. App. 1995) (noting Key West's interpretation of willful and intentional, but holding the standard as “a reckless disregard of human life or of the safety of persons exposed to its dangerous effects, or reckless indifference to the rights of [residents]”).

99 Fla. Stat. Ann. § 400.023(1).

100 See id.

101 See Agency for Health Care Admin., The Division of Health Quality Assurance (visited May 26, 1999) <http://www.fdhc.state.fl.us/hqa.html>.

102 Id.

103 See Pocket Reference Guide, supra note 45, at 1. 104 Telephone Interview with Robert Rosenthal, President, Florida Health Care Ass'n (Apr. 7, 1998) [hereinafter Rosenthal Telephone Interview],

105 See Agency for Health Care Admin., Florida Nursing Home Guide Update (Dec. 1998) (visited May 26,1999) <http://www.fdhc.state.fl.us/nurhome/nhupdate/nhupl298.html> [hereinafter Guide].

106 See id.

107 See id.

108 See id.

109 See Telephone Interview with Faye A. Haverlock, Owner, Okeechobee Health & Rehabilitation Center, in Okeechobee, Fla. (Nov. 1, 1997) [hereinafter Haverlock Telephone Interview].

110 See Guide, supra note 105, at 1.

111 See id. There are four essential components that a Plan of Correction must address: (1) how the facility corrected the citation(s) regarding the particularly affected resident; (2) how the facility corrected the citation(s) for the whole group of similarly affected residents; (3) who is responsible for addressing the citation(s); and (4) who is responsible for monitoring and validating the process. See Rosenthal Telephone Interview, supra note 104.

112 See Chachere, Vickie, Fines Don't Bile Businesses Hard, Tampa Trib., Nov. 15, 1998Google Scholar, at 7, available in 1998 WL 13783795 [hereinafter Fines Don't Bite].

113 See Rosenthal Telephone Interview, supra note 104.

114 See Guide, supra note 105, at 1; cf. Rosenthal Telephone Interview, supra note 104 (noting that while other states allow surveyors to desk-review or telephone-verify minor violations of residents' rights or care addressed in the Plan, Florida requires a follow-up visit no matter how small the violation of residents' rights or care).

115 See Rosenthal Telephone Interview, supra note 104; Agency for Health Care Admin., Agency for Health Care Administration Releases Quarterly List of Conditional Rated Nursing Homes (May 23, 1997) <http://www.fdhc.state.fl.us/pio/press/nhgupdt.html> [hereinafter AHCA 5-23-97].

116 AHCA 5-23-97, supra note 115.

117 See Fla. Stat. § 400.23(8) (1998). A superior rating signifies that the facility exceeds minimum standards, a standard rating indicates that the facility meets minimum standards and a conditional rating means that the facility failed to meet, or correct on follow-up, minimum standards. See Guide, supra note 105, at 1.

118 See Guide, supra note 105, at 1.

119 See Fla. Stat. §.400.121(1H3).

120 See id. §400.121(4).

121 See id. §400.126.

122 U*Seeid. §400.125(l)(b).

123 See Guide, supra note 105, at 1.

124 See Fla. Stat. § 400.23(8)(b).

125 See Guide, supra note 105, at 1.

126 See id.

127 See id.; Haverlock Telephone Interview, supra note 109.

128 See Haverlock Telephone Interview, supra note 109.

129 See With New Attitude, supra note 35, at Fl; 42 U.S.C. § 1396r(h)(2)(F) (1998).

130 See With New Attitude, supra note 35, at Fl .

131 See Telephone Interview with Robert Rosenthal, President, Florida Health Care Ass'n (May 28, 1998) [hereinafter Rosenthal Telephone Interview II].

132 See With New Attitude, supra note 35, at Fl.

133 See Guide, supra note 105, at 1.

134 See Fla. Stat. Ann. § 400.191(4)(a).

135 See Guide, supra note 105, at 1. The Tampa-based ^Coalition to Protect America's Elders charged that the state's Guide to Nursing Homes misled consumers by inadequately reporting on the problems found by inspectors. See John Wark, Coalition Blasts Nursing Home Industry, Tampa Trib., Feb. 21, 1998, at 1, available in 1998 WL 2765637.

136 See Agency for Health Care Admin., Agency for Health Care Administration Releases Quarterly List of Conditional Rated Nursing Homes (Feb. 20, 1997) <http://www.fdhc.state.fl.us/pio/press/nhupdt.html> [hereinafter AHCA 2-20-97]. A total of 231 facilities have appeared on the conditional list at least once. See Agency for Health Care Admin., AHCA Sets New Priorities for Nursing Home Complaint Inspections (Oct. 16, 1998) <http://www.fdhc.state.fl.us/pio/press/NHUpdt2nd98.htm>.

137 See Agency for Health Care Admin., Nursing Home Guide Updates (visited May 26, 1999) <http://www.fdhc.state.fl.us/nurhome/index.html> [hereinafter Nursing Home Guide Updates].

138 See With New Attitude, supra note 35, at Fl.

139 See id. The Florida Agency for Health Care Administration (AHCA) has recommended approximately $5 million in federal fines since 1995. See Fines Don't Bite, supra note 112, at 7.

140 With New Attitude, supra note 35, at Fl.

141 See id.

142 See id.

143 See Agency for Health Care Admin., AHCA Fines Chartwell Half-Million Dollars (Aug. 3, 1998) <http://www.fdhc.state.fl.us/pio/press/ChartwellFines.htm>. Florida cited “facilities more often in areas including Food Preparation, Comprehensive Care Plan Development, Resident Dignity, Proper Treatment, Comprehensive Assessments, Nutritional Status and Incontinence Treatment.” Id.

144 See AHCA Sets New Priorities for Nursing Home Complaint Inspections, supra note 136.

145 See AHCA Fines Chartwell Half-Million Dollars, supra note 143. Administrative actions include licensure revocation, emergency orders and forced changes of ownership. See id.

146 See id.

147 See Nursing Home Guide Updates, supra note 137, (Dec. 1998) at <http://www.fdhc.state.fl.us/nurhome/nhupdate/origl298.htm>.

148 See id.

149 See Agency for Health Care Admin., Agency Launches Nursing Home Action Plan, Steps-Up Monitoring and Sanctioning Activities (Jan. 21, 1998) <http://www.fdhc.state.fl.us/pio/press/nhupdt5.html>. “Of the facilities which have received a conditional rating, most have moved into compliance at a much faster rate than before the Update was distributed publicly.” Id.

150 See id.

151 See id.

152 See id.

153 See Agency for Health Care Admin., Agency Targets Patterns of Noncompliance in Nursing Homes (Sept. 3, 1998) <http://www.fdhc.state.fl.us/pio/press/TargetNH.htm>.

154 See id.

155 See Agency for Health Care Admin., get up or get out: A Status Report on Florida'S Initiative to Improve Troubled Nursing Homes (1999) [hereinafter get up or get out].

156 See id. at 2.

157 See id. at 1.

158 See Agency for Health Care Admin., Agency Reports Progress on Nursing Home Quality Initiative (Mar. 8, 1999) <http://www.fdhc.state.fl.us/pio/press/nqinitiative.htm>. AHCA imposed 34 administrative actions through the program from September 1998 to December 1998. See get up or get out, supra note 155, at 25.

159 See Agency Reports Progress on Nursing Home Quality Initiative, supra note 158. Two other facilities face sanctions, fines and other penalties for failing to meet compliance standards while the remaining 16 facilities are in compliance. See id.

160 See Agency for Health Care Admin., Agency Takes Severe Action Against Poor-Performing Nursing Homes (Oct. 26, 1998) <http://www.fdhc.state.fl.us/pio/press/GUGOResults.htm>.

161 See Carol Marbin Miller, Agency Chief Pushes for Better Nursing Homes, St. Petersburg Times, Mar. 1, 1998, at IB, available in 1998 WL 4248929 [hereinafter Agency Chief Pushes].

162 See id. “[Regulators have] gotten to a point where they've lost the best interests of the patient and family.” Id. (quoting Tamera Hicks, the daughter of a nursing home resident relocated to another nursing home despite her efforts to fight the move). Genesis Health Ventures of Pennsylvania closed its facility in Lantana, forcing the residents to relocate. See Peter Donald, Nursing Home Chain to Close Lantana Site, Move its 61 Residents, Palm Beach Post, Mar. 12, 1999, at IB, available in WL PB-Post Database. The facility claimed the state's “arbitrary and capricious survey process” was the reason for the closing. See id. “Many [residents did not] want to leave.” Id. The nursing home's parent company filed suit against AHCA, “claiming that the [facility] was “wrongfully and falsely held out by AHCA as being a substandard facility and was wrongfully included in AHCA's target list of the worst nursing homes in Florida.'” Glenn Singer, Nursing Home Cited by State for Poor Patient Care to Close; Criticism of Atlantis Offered as Reason for the Move, Sun-Sentinel, Mar. 12, 1999, at 3B, available in 1999 WL 2476016.

163 See Agency Chief Pushes, supra note 161, at IB.

164 Transfer trauma is “the adverse effect on physical and mental health suffered by an elderly or chronically ill individual who is moved from one setting or institution to another.” Kira Anne Larson, Note, Nursing Homes: Standards of Care, Sources of Potential Liability, Defenses to Suit, and Reform, 37 Drake L. Rev. 699, 701 n.13 (1987-88) (quoting Anson B. Levitan, Nursing Home Dilemma? Transfer Trauma and the Noninstitutional Options: A Review of Literature, 13 Clearinghouse Rev. 653 (1979-80)). Transfer trauma sometimes results in serious physical and psychological damage, or even death. See Janet M. Robert, Comment, Involuntary Relocation of Nursing Home Residents and Transfer Trauma, 24 St. Louis U. L.J. 758, 768 (1981).

165 See Agency Chief Pushes, supra note 161, at IB.

166 See generally id. (discussing the difficulties in closing a facility); Agency for Health Care Admin., AHCA Continues Monitoring of Dania Nursing Home (Aug. 6, 1998) <http://www.fdhc.state.fl.us/pio/press/Dania.htm> (noting that AHCA did not close a facility with serious problems because further evaluation was necessary).

167 See AHCA Fines Chartwell Half-Million Dollars, supra note 143. The forced evacuation of residents was a corporate decision, “an act of rank corporate irresponsibility” according to the director of AHCA, indicating AHCA's intent to make an example out of this case. See id.

168 See id.

169 See Agency for Health Care Admin., Federal Judge Upholds Record Fine Against Tampa Nursing Home (Sept. 25, 1998) <http://www.fdhc.state.fl.us/pio/press/Wellington.htm>. The facility's citations included “the asphyxiation death of one resident who died after getting her head caught in a bed rail, insufficient staffing, failure to properly assess the needs of residents, and inappropriate use of restraints.” Nursing Home to Pay Largest Penalty Ever, Compliance Monitor (Opus Communications, Healthwave, Marblehead, M.A.) (Sept. 30, 1998) <http://www.opuscomm.com/other/cm1998/980930.html>.

170 See AHCA Sets New Priorities for Nursing Home Complaint Inspections, supra note 136. It is also in advance of HCFA's new regulations. See Vickie Chachere, State Ordered to Get Tougher, Act Quicker on Nursing Home Problems, Tampa Trib., Mar. 17, 1999, at 2, available in Lexis, Market Library, Promt File.

171 See AHCA Sets New Priorities for Nursing Home Complaint Inspections, supra note 136.

172 See id.

173 See id.

174 See id. Depending on its interpretation, AHCA may have to revise its policies in light of recent HCFA regulations, mandating investigation within two days of immediate jeopardy allegations. See Chachere, supra note 170, at 2.

175 See Nursing Home Reform Act, 42 U.S.C. §§ 1395I-3(a)-(h), 1396r(a)-(h) (1997); Residents' Rights Act, Fla. Stat. Ann. § 400.023(1) (West 1993).

176 See Vladeck, supra note 29.

177 See With New Attitude, supra note 35, at F1.

178 See generally Pat Dunnigan, Nursing Homes Facing More Lawsuits Over Care, Miami Daily Bus. Rev., Apr. 8, 1994, at 10, available in 1994 WL 2957347 (noting the lack of deterrence by regulations and their enforcement); Thompson, supra note 31, at 35 (revealing the small percentage of imposed fines that are actually collected from the nursing home industry).

179 Schlesinger, Rachel A., Grannybashing, in Abuse Of The Elderly 4 (Benjamin Schlesinger et al. eds., 1988)CrossRefGoogle Scholar.

180 See Florida Attorney Finds Profitable Niche Suing Nursing Homes, supra note 84; Stephen Nohlgren, Nursing Home Lobby to Cut Back Lawsuits, St. Petersburg Times, Feb. 4, 1992, at Al, available in 1992 WL 11009623.

181 See Dunnigan, supra note 178, at 10.

182 See Peter Mitchell, Lawyer Hits Pay Dirt in Attacks on Negligence in Nursing Homes, Wall St. J., June 26, 1996, at A8, available in 1996 WL 3108213 [hereinafter Lawyer Hits Pay Dirt].

183 See generally Elliot Blair Smith, Unheeded Cries for Help: Problems at Florida Home Reveal Gaping Holes in Legal Safety Net, Usa Today, Oct. 12, 1998, at IB (noting that attorneys need only win $1 in damages to be entitled to recover their expenses).

184 See Fla. Stat. Ann. § 400.023(1).

185 See Dunnigan, supra note 178, at 10.

186 See id.

187 See id.

188 See id.

189 See id.

190 Id.

191 See Lawyer Hits Pay Dirt, supra note 182, at A8.

192 See Dunnigan, supra note 178, at 10.

193 See id; Haverlock Telephone Interview, supra note 109. One nursing home quickly agreed to a $3.5 million settlement after the jury awarded $6.5 million in compensatory damages minutes before the jury was to consider punitive damages. See Geoff Dougherty, Jury Orders $6.5-Million for Neglect of Patient, St. Petersburg Times, Apr. 1, 1999, at IB, available in Lexis, News Library, Stpete File.

194 See Dunnigan, supra note 178, at 10.

195 Skipper, supra note 2.

196 See Dunnigan, supra note 178, at 10.

197 Id. at 10.

198 See Nohlgren, supra note 180, at Al.

199 See Jury Awards Rise for Improper Care of Elderly (visited Nov. 15, 1997) <http://wwhttp://www.supernet.net/~smolf/firm/3.htmw.supernet.net/~smolf/firm/3.htm>.

200 See Larry Dougherty, $15-Million is Awarded in Nursing Home Case, St. Petersburg Times, Mar. 23, 1999, at 1A, available in Lexis, News Library, Stpete File. Surprisingly enough, the jury decided against awarding punitive damages. See id. Other states have witnessed unprecedented nursing home verdicts as well. See Fields v. Senior Citizens Center, Inc. of Coushatta, 528 So. 2d 573, 582-83 (La. Ct. App. 1988) (awarding $292,000 for death of wandering resident); Mark Wrolstad, Jury Decides Nursing Home Was Neglectful; Woman's Heirs Receive $92 Million Judgment, Dallas Morning News, Nov. 8, 1997, at 33A, available in Lexis, News Library, Dalnws File; Mike Lafferty, Nursing Home Found Negligent, Columbus Dispatch, Dec. 3, 1997, at 3C, available in Lexis, News Library, Coldis File (reporting an Ohio jury award of over $1 million for nursing home negligence). Texas experienced a $10.7 million verdict returned in September 1997, but more incredibly it saw a $92 million verdict ($90 million punitive) returned November 9, 1997. See Linda P. Campbell, $92 Million Awarded in Nursing Home Case, Fort Worth Star-Telegram, Nov. 9, 1997, available in 1997 WL 11918103. Beverly Enterprises, the nation's largest nursing home chain, was the defendant in the largest verdict in the industry on March 4, 1998 in a California lawsuit. See Michael Moss, Nursing Homes Get Punished by Irate Jurors, Wall St. J., Mar. 6, 1998, at Bl. The company was assessed a total of $95.1 million, including $94.7 million in punitive damages. See id. But see California Judge Reduces $95 Million Jury Award Against Beverly Enterprises, 7 Health L. Rep. (BNA) 994, 994 (1998) (noting a California superior court judge, citing misinterpretation of jury instructions, reduced the verdict to $3.1 million).

201 See Diane C. Lade, Opinions Mixed on Nursing Home Suit, Sun-Sentinel, Feb. 15, 1998, at IB, available in Lexis, News Library, Sunsen File [Opinions Mixed]; Diane C. Lade, Family Awarded $1.8 Million; Nursing Home Found Negligent in Drowning Death of Patient, Sun-Sentinel, Feb. 11, 1998, at 1A, available in Lexis, News Library, Sunsen File [Family Awarded]. A verdict of $2.7 million ($2 million of which was punitive damages) ranks second highest. See Lowe v. Beverly, Fjvr Ref. No. 97:2-59 (May 21, 1996).

202 See id.

203 See generallyFamily Awarded, supra note 201, at 1A (noting that the jury's reason for the large verdict was to warn the nursing home industry that it will be held accountable in court if it fails to take care of vulnerable people).

204 See Sheldon L. Goldberg, Where Have Nursing Homes Been? Where are They Going?, Generations, Winter 1995-1996, at 78, 80.

205 Diagnosis-related groups are part of Medicare's prospective payment system in which a particular diagnosis receives a specific reimbursement regardless of the cost of treating the patient. See Furrow Et Al., supra note 1, at 845-46.

206 See Dunnigan, supra note 178, at 10.

207 See id. 208 Lawyer Hits Pay Dirt, supra note 182, at A8.

209 See Nohlgren, supra note 180, at Al.

210 See Guide, supra note 105, at 1.

211 See Dunnigan, supra note 178, at 10.

212 See id.; Nohlgren, supra note 180, at Al.

213 See Nohlgren, supra note 180, at Al.

214 See id.

215 See Guide, supra note 105, at 1.

216 See Mike Stobbe, Lawyer Targets Nursing Homes; Billboard Solicits Clients, Fla. TlMes-Union, July 30, 1997, at Al, available in Lexis, News Library, Flatun File (noting that some attorneys locate nursing homes to sue by sifting through AHCA inspection reports).

217 See Dunnigan, supra note 178, at 10. 218 Lawyer Hits Pay Dirt, supra note 182, at A8.

219 See Dunnigan, supra note 178, at 10.

220 Opinions Mixed, supra note 201, at IB.

221 See id.

222 See Lawyer Hits Pay Dirt, supra note 182, at A8.

223 See Lucy Morgan, Patient Rights Forces Unite, St. Petersburg Times, Jan. 28, 1993, at IB, available in Lexis, News Library, Stpete File.

224 See Peterson, supra note 2, at 6; Nohlgren, supra note 180, at Al.

225 The government makes the novel argument that providers violate the False Claims Act (FCA) by submitting claims to Medicare and Medicaid for services provided to residents when, in reality, the residents do not receive adequate care. See Robert J. Milligan & Steven Wiggs, Nursing Homes Face More Quality-of-Care Suits, NAT'L L.J., July 6, 1998, at B12. An Assistant U.S. Attorney stated that “The implications .. . are dramatic from a quality-of-care perspective in that the provision of inadequate care now translates into a false claim to the government for payment.” Christopher A. Myers & Nicole L. Kobrine, Feds Focus on Quality Care Cases, NAT'L L.J., Sept. 8, 1998, at B9. The first nursing home FCA cases based on inadequate care in the country were litigated in Pennsylvania. See Nursing Homes False Claims Settlement, 7 Health L. Rep. 162, 162 (1998) (citing United States v. GMS Management-Tucker Inc., No. 96-1271 (E.D.Pa. Feb. 2, 1996); United States v. Chester Care Ctr., No. 98-CV-139, (E.D. Pa. Feb. 5, 1998)); Govt. Settles Civil Rights Action Against Philadelphia Nursing Home, Health L. Litig. Rep., Sept. 1998, at 16 (citing United States v. City of Philadelphia, No. 98-CV-4253 (E.D. Pa. Aug. 13, 1998)). Prosecutors alleged the nursing homes violated the FCA by billing Medicare and Medicaid for inadequate care. See Nursing Homes False Claims Settlement, supra; Govt. Settles Civil Rights Action Against Philadelphia Nursing Home, supra. The government can recover treble damages and a civil penalty between $5,000 and $10,000 for each false or fraudulent claim, see 31 U.S.C. § 3729(a), in addition to terminating the provider's Medicare and Medicaid contracts. See 42 U.S.C. § 1320A-7(A). Because of the multitude of claims submitted to HCFA for each resident, all of the cases settled with fines of hundreds of thousands of dollars and federal monitoring programs. See Govt. Settles Civil Rights Action Against Philadelphia Nursing Home, supra (noting the settlement requires the city to upgrade the conditions of the Philadelphia Nursing Home, limit the use of physical restraints, provide adequate psychiatric, medical and nursing care, pay $50,000 in fines and create a $15,000 fund to improve the quality of life for the residents); Nursing Home Companies Pay $600,000 to Settle Inadequate Care Charges, Health Care Fraud Litig. Rep., Mar. 1996, at 11 (explaining the settlement calls for: $600,000 fine; a corporate compliance program to address weight loss and nutritional needs of residents; provision of wound care in accordance with the guidelines of the Agency for Health Care Policy and Research; extensive staff training in nutrition policies and procedures, wound care and corporate compliance programs; monthly reports of nutritionally at-risk residents to the U.S. Attorney's Office; and review and analysis of wound care by the University of Pennsylvania's Institute on Aging, with reports to the U.S. Attorney's Office of all findings); PA Nursing Homes Enter $500,000 Settlement Over Inadequate Care Claims, Health Care Fraud Litig. Rep., Feb. 1998, at 4 (noting a settlement that requires: a fine of $500,000; all residents must receive state-of-the-art diabetes treatment and proper nutritional supervision; wound care must follow AHCPR guidelines; a federal monitor will observe the facilities for 2 years; a temporary manager appointed at one of the three facilities; and a corporate compliance program).

226 See Rosenthal Telephone Interview, supra note 104.

227 Nohlgren, supra note 180, at Al. Jim Wilkes, a prominent Florida plaintiffs' attorney expects to win approximately $100 million in nursing home verdicts and settlements this year alone. See Smith, supra note 183, at IB.

228 Morgan, supra note 223, at IB.

229 See Florida Attorney Finds Profitable Niche Suing Nursing Homes, supra note 84.

230 See Nohlgren, supra note 180, at Al.

231 Morgan, supra note 223, at IB.

232 Nohlgren, supra note 180, at Al. For this reason, Doug Smith, director of AHCA, supports legislation that limits a family's ability to sue a nursing home. See Vickie Chacherie, Regulation Often Fails Residents, Tampa Trib., Nov. 15, 1998, at 3, available in 1998 WL 13783790.

233 See Nohlgren, supra note 180, at Al; Lawyer Hits Pay Dirt, supra note 182, at A8.

234 See Furrow ET AL., supra note 1, at 340.

235 “People turn to lawyers when the state fails to act against bad nursing homes.” Peterson supra note 2, at 6; see generally Moss, supra note 200, at Bl (noting the lack of real government enforcement and rise in jury verdicts).

236 See Peterson, supra note 2, at 6.

237 See Jeffrey Brainard, Nursing Home Chain Suing Dade City Has Mixed Record, St. Petersburg Times, July 27, 1997, at 1, available in 1997 WL 6210368 (noting a facility with a superior-rated facility facing two lawsuits over improper care); see generally AHCA 8-5-97, supra note 85 (stating that 95% of Florida's nursing homes meet or exceed state standards).

238 See Brainard, supra note 237, at 1.

239 See AHCA 8-5-97, supra note 85.

240 Brainard, supra note 237, at 1.

241 See Fla. Stat. Ann. § 400.18.

242 See id. §§400.121,. 18.

243 See Florida: Nursing Homes to See Surprise Inspections, Health Line, Jan. 22, 1998.

244 See Haverlock Telephone Interview, supra note 109. Defeated reform efforts include: limiting punitive damages to treble the actual damages; limiting the action to family members who are legal guardians; requiring attorneys to take their fees as part of the award; reducing the statute of limitations to two years, see Peterson, supra note 2, at 6; and shifting nursing home suits into the medical malpractice law provisions—requiring expert screening before qualifying to file, judicially imposed arbitration options and limiting actual damages to $350,000, see Nohlgren, supra note 180, at Al.

245 Examples of such interest groups include: the American Association of Retired Persons, see Morgan, supra note 223, at IB; the Coalition to Protect Florida's Elderly, see Peterson, supra note 2, at 6; the Grey Panthers, see id.; and the Academy of Florida Trial Lawyers, see Lucy Morgan, Seniors Use Ads to Fight Lawmakers, St. Petersburg Times, Apr. 24, 1997, at IE, available in Lexis, News Library, Stpete File.

246 Morgan, supra note 245, at IE; see also Carol Marbin Miller, Group Hits Hard with TV Ad on Elderly Abuse, St. Petersburg Times, July 3, 1997, at 3B, available in Lexis, News Library, Stpete File (describing the sensationalism of elderly abuse ads).

247 See Morgan, supra note 245, at IE.

248 See Rosenthal Telephone Interview, supra note 104.

249 See With New Attitude, supra note 35, at Fl (calling the current survey process too subjective; results vary with which surveyor does the survey).