article

Vaping could be banned in workplaces, and nursing-home and assisted-living facility residents could be guaranteed certain rights --- including the ability to sue without limitations

The proposals are part of a series of health-care related legislation being considered by a Florida panel that has the power to place proposed constitutional amendments on the 2018 ballot.

Former state Sen. Lisa Carlton, the sponsor of the measure on vaping, said her goal is to amend the Florida Constitution to make clear that the state's existing ban on smoking in workplaces also incorporates vaping, such as the use of electronic cigarettes.

“The goal is, if you cannot smoke there, you cannot vape there,” Carlton said, noting that electronic cigarettes weren't available when the original ban was passed by Florida voters in 2002.

After e-cigarettes started to become available, she expected the Legislature to tackle the issue, but it didn't.

In retrospect, Carlton said she thinks it's better the Legislature didn't address the issue because voters could get the opportunity to put a vaping ban in the Constitution. More than 70 percent of voters approved the original workplace smoking ban in 2002.


“It's the perfect opportunity because it should be alongside smoking,” she said, adding, “I feel like this (vaping) has put a cloud over our clean air, and it's time for us to recognize it and update it.”

Carlton's proposal would amend a section of the Constitution currently titled “Workplaces without Tobacco Smoke” to read “Workplaces without Tobacco Smoke or Vapor.”

Carlton is part of the 37-member Florida Constitution Revision Commission which meets every 20 years to evaluate possible changes to the Constitution. The panel can put issues before voters without having to gather petition signatures or get proposals approved by the Legislature.

Commission members proposed 103 amendments, and the panel is expected to whittle that number in the coming months. The commission's General Provisions Committee could take up Carlton's proposal Tuesday.

In all, the commission is expected to consider seven health-care related proposals, including a controversial proposal about nursing homes and assisted living facilities.

Commissioner Brecht Heuchan has offered a proposal that would establish a “bill of rights” for residents of nursing homes and assisted living facilities. Heuchan's proposal, in part, would require nursing homes to carry liability insurance --- which is not a requirement today --- and includes a right of access to courts and legal remedies, “without limitations,” in cases involving issues such as abuse, negligence or exploitation.

Emmett Reed, executive director of the Florida Health Care Association, the state's largest nursing-home group, issued a scathing news release attacking Heuchan for the proposed amendment. Reed accused Heuchan, who is a lobbyist for the Florida Justice Association trial-lawyers group, of ignoring “his broader obligations in order to serve the narrow interest of his clients.”

Reed called the state Constitution the “core document” that sets out the structure of Florida's government and said that “some things simply do not belong in the Florida Constitution.” He also said that the proposal would “add nothing to the quality of life for our state's frailest elders, nor would it solve the real issues of keeping nursing home residents safe during disasters. It would only serve the interests of greedy trial attorneys who continually attempt to cash in by suing nursing homes.”

But Heuchan fired back at the nursing home organization. In a letter he sent to The News Service of Florida, Heuchan said the Constitution is “a place where rights of the individual are protected, especially when it comes to the rights of the vulnerable.”

“I cannot count the number of times I have been told one issue or another does not belong in the Constitution,” he wrote in the letter, adding that when the argument comes from special-interest groups, it's “code” for something else.

“What they really mean,” the letter said, is “they think they have other forums wired in their favor, (or) … they know if voters have a chance to consider the proposal, it would pass.”

Heuchan disputed the allegation that his amendment would help his clients or is a potential conflict of interest. Before filing the amendment he reviewed the rules, which make clear that he cannot file an amendment that would result in a special gain for him or a principal of his.

“What they are saying is speculative at best,” he said adding that if a lawyer successfully sues a nursing home on behalf of a resident, the attorney is paid from the damages the resident is awarded. “It's not a gain to me personally, and it's not a special gain to anyone I work for,” he said.

“This is just part of their campaign to discredit me personally because they don't have a good answer to the proposal,” he said.

Meanwhile, Heuchan isn't the only member of the Constitution Revision Commission wanting to create a patient's bill of rights.

Commissioner Frank Kruppenbacher has proposed an amendment that, if approved by voters, would require the Legislature to guarantee patients “transparency in health care.” That transparency would apply to such things as medical costs and information needed to help patients make informed decisions about treatment.

Health-care transparency has been a priority for Gov. Rick Scott, who appointed Kruppenbacher to the commission.

Kruppenbacher also has offered another health-care proposal that aligns with Scott's priorities.

That proposal would eliminate “certificate of need” laws, which the state can use to restrict the addition of new hospitals and nursing homes. Certificates of need are licenses that Florida requires before new health care facilities can be built.

Proponents of so-called CONs argue that they help keep health-care costs lower by preventing facilities from being overbuilt. Critics, such as Scott and House Speaker Richard Corcoran, maintain that CONs are artificial barriers to the marketplace that prevent competition and provide monopolies for companies that already have the licenses.

Scott and the House have tried unsuccessfully to eliminate certificate of need laws but have faced opposition from hospitals and nursing homes that don't want to see the restrictions lifted.

Information provided by The News Service of Florida.