Florida lawmakers draft bill requiring more oversight for Do Not Resuscitate orders

Bill would address ‘gap’ in state statute, lawmakers say

TALLAHASSEE, Fla. – Stakeholders in Florida's guardianship program will meet with lawmakers in Tallahassee Tuesday to discuss how to increase oversight on state guardians, especially when it comes to how they handle their clients' medical directives and money.

The meeting comes on the heels of a criminal investigation still underway into how former Orlando-based guardian Rebecca Fierle handled her clients' medical and financial affairs, and if she broke any laws by ordering Do Not Resuscitate orders on clients, without their permission, or without the court's consent.

[Timeline: Investigation of Florida guardian Rebecca Fierle]

News 6 has learned Florida state Sen. Kathleen Passidomo and state Rep. Colleen Burton are working on drafting a bill that would address issues Do Not Resuscitate orders can create.

Both admit there is a problem in the current statutes and a big gap when it came to Do Not Resuscitate orders.

"We looked at Florida law and realized that there was a problem," Passidomo said during a phone interview last week. "For those individuals who did not actually sign their own advance care directive, there was a gap in the statute. It only requires two physicians to confirm that would be appropriate - and the guardian could then go ahead and issue the order - and did not need to get court approval."

A group of state lawmakers, judges, lawyers, family members and otherstakeholders in the state's guardianship program will meet in Tallahassee

Passidomo said she and Burton are in the process of drafting the language of the bill, which they hope to introduce in January for consideration.

Passidomo said she was surprised to learn that Florida law does not require guardians to get court permission to grant a Do Not Resuscitate order.

"Of course I was disturbed by it," Passidomo said. "Because not discounting the discussion of whether or not a court order is necessary, the bottom line is every guardian has a fiduciary duty to their wards. They take an oath they have standards of practice."

Last week, Fierle's attorney, Harry Hackney, filed two appeals to the 5th district court, stating the law is actually on Fierle's side.

[MORE COVERAGE: What do state guardians do for their clients?]

He writes by statute, the guardian, not the court, is the one with the right to make that decision, although judicial review of the guardian's decision can be sought. The motion goes on to state that once the guardian has delegated authority, no further permission is mandated by statutes or required by state law.

A state investigative report filed in July revealed Fierle admitted it was common for her to file DNR orders regularly on her clients, and that for her it was an issue of quality of life over quantity.

"That's going to change," said state Sen. Linda Stewart. Stewart's district covers Orlando, where Fierle ran her Geriatric Management office.

Stewart said she plans to back the bill Passidomo and Burton file, as a way to protect seniors in her district.

“We've got a lot that we need to look at to make this program work,” Stewart said.

Stewart said she was floored when she learned not only how many guardianship cases Fierle took on statewide, but also that she placed blanket Do Not Resuscitate orders on her clients. She is also surprised there were no protocols in place to prevent Fierle from double billing both her clients and Advent Health for her services for almost $4 million over a 10-year span.

"There will be action taken because we can't allow this to continue," Stewart said. "I think this person took advantage of our seniors, and they really need to be protected. And if we are going to rely on guardianship to be the protector, then we need to make sure we are protecting. And make sure there is accountability in place for our guardians."

Passidomo agrees and says more needs to be done to protect Florida’s most vulnerable seniors from what she calls “bad actors”.

“Most of the guardians we deal with are honorable, honest people who care very deeply for the people that are in their care,” Passidomo said. “This was a situation where we had a guardian who had so many cases it was unmanageable.”

U.S. lawmakers pursuing federal reforms

U.S. Rep. Darren Soto agrees laws need to change on the state and federal level.

"The Fierle case has been a motivating factor of us filing the Guardianship Accountability Act," Soto said during an interview with News 6. "The bill is there to help model legislation across the nation. To boost up funding for prosecuting crimes related to guardianships. So, the rubber really meets the road with state law though - and in the case of these DNR's, that would require state reforms and we'd be there to support them."

Soto said, he too, was shocked at the news of the criminal investigation into a state guardian in his home state.

"The guardian is supposed to do what's in the best interest of the client, so it's dumbfounding to me that you wouldn't seek the client's input," Soto said. "We see that with these abuses, the law does need to change. Judges need to make the decision where clients haven't expressly made the decision themselves."

Judges limited to protect state wards under current system

However, local judges said they are limited in what they can do until the law is changed.

Chief Judge Donald Myers, in Orlando, says the Fierle case is one of the reasons why they are making changes to the 9th circuit court by January 2020. But the other problem is the sheer number of cases with more than 3,500 guardianship cases pending currently in Orange County alone. Myers says in the past five years, they have seen a 33% surge in guardianship filings locally and it is only going to get worse as the state's elderly population continues to rise.

[STORY: Embattled Orlando guardian didn't report $4 million billed to AdventHealth, report finds]

"We are moving a judge out of our very busy civil division and creating the new guardianship mental health division," Myers said.

Myers said he hopes having two judges, an extra case manager and a new software system in place next year will help protect vulnerable Floridians from potential fraud and unscrupulous guardians in the future.

But Myers said the courts are limited in what they can do.

"Certainly, we're trying to be aware of those types of issues," Myers said. "But where information isn't reported, then it raises a challenge for the judge."

Currently, there are no statewide systems in place that can monitor just how many cases a guardian takes on. Court records show Fierle had more than 400 guardianship cases in Orange County alone.

Myers said way to get real results is to change the law.

"As judges, we just don't have the constitutional freedom to be policymakers," Myers said.

Myers said Florida judicial leaders are looking to model something Pennsylvania courts are doing - which has just implemented a new case management computer system for guardianship cases there. He says it’s not just scanning documents into a computer, it's a software program that is supposed to detect and flag a case if fraud is detected.

Myers said the program will cost money and it will be up to lawmakers to decide if they are willing to spend it.

About the Authors:

Donovan is WKMG-TV's executive producer of digital enterprise