Senate Bill sb0388er

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  1                                 

  2         An act relating to assisted care communities;

  3         creating ch. 429, F.S.; transferring part III

  4         of ch. 400, F.S., relating to assisted living

  5         facilities, to part I of ch. 429, F.S.;

  6         transferring part VII of ch. 400, F.S.,

  7         relating to adult family-care homes, to part II

  8         of ch. 429, F.S.; transferring part V of ch.

  9         400, F.S., relating to adult day care centers,

10         to part III of ch. 429, F.S.; amending ss.

11         101.655, 189.428, 196.1975, 202.125, 205.1965,

12         212.031, 212.08, 296.02, 381.0035, 381.745,

13         393.063, 393.506, 394.455, 394.4574, 394.463,

14         400.0063, 400.0069, 400.0073, 400.0077,

15         400.0239, 400.119, 400.141, 400.191, 400.215,

16         400.402, 400.404, 400.407, 400.4071, 400.408,

17         400.411, 400.412, 400.414, 400.415, 400.417,

18         400.4174, 400.4176, 400.4178, 400.418, 400.419,

19         400.42, 400.422, 400.424, 400.4255, 400.4256,

20         400.426, 400.427, 400.428, 400.429, 400.4293,

21         400.431, 400.441, 400.442, 400.444, 400.447,

22         400.452, 400.462, 400.464, 400.497, 400.55,

23         400.551, 400.552, 400.553, 400.554, 400.555,

24         400.556, 400.5565, 400.557, 400.5571, 400.5572,

25         400.5575, 400.558, 400.559, 400.56, 400.562,

26         400.563, 400.564, 400.601, 400.616, 400.617,

27         400.618, 400.619, 400.6194, 400.6196, 400.621,

28         400.6211, 400.622, 400.625, 400.6255, 400.628,

29         400.629, 400.93, 400.962, 400.980, 400.9905,

30         401.23, 402.164, 408.032, 408.033, 408.034,

31         408.831, 409.212, 409.905, 409.906, 409.907,


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 1         409.912, 410.031, 410.034, 415.1111, 430.601,

 2         430.703, 435.03, 435.04, 440.13, 465.0235,

 3         468.1685, 468.505, 477.025, 509.032, 509.241,

 4         627.732, 651.011, 651.022, 651.023, 651.055,

 5         651.095, 651.118, 765.1103, 765.205, 768.735,

 6         893.13, 943.0585, and 943.059, F.S., to conform

 7         references to changes made by the act;

 8         providing that physician assistants are subject

 9         to certain requirements in the same manner as

10         physicians; requesting the Division of

11         Statutory Revision to make necessary conforming

12         changes to the Florida Statutes; providing an

13         effective date.

14  

15  Be It Enacted by the Legislature of the State of Florida:

16  

17         Section 1.  Chapter 429, Florida Statutes, is created,

18  to be entitled "Assisted Care Communities."

19         Section 2.  Sections 400.401, 400.402, 400.404,

20  400.407, 400.4071, 400.4075, 400.408, 400.411, 400.412,

21  400.414, 400.415, 400.417, 400.4174, 400.4176, 400.4177,

22  400.4178, 400.418, 400.419, 400.4195, 400.42, 400.421,

23  400.422, 400.423, 400.424, 400.4255, 400.4256, 400.426,

24  400.427, 400.4275, 400.428, 400.429, 400.4293, 400.4294,

25  400.4295, 400.4296, 400.4297, 400.4298, 400.431, 400.434,

26  400.435, 400.441, 400.442, 400.444, 400.4445, 400.447,

27  400.449, 400.451, 400.452, 400.453, and 400.454, Florida

28  Statutes, are renumbered as sections 429.01, 429.02, 429.04,

29  429.07, 429.071, 429.075, 429.08, 429.11, 429.12, 429.14,

30  429.15, 429.17, 429.174, 429.176, 429.177, 429.178, 429.18,

31  429.19, 429.195, 429.20, 429.21, 429.22, 429.23, 429.24,


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 1  429.255, 429.256, 429.26, 429.27, 429.275, 429.28, 429.29,

 2  429.293, 429.294, 429.295, 429.296, 429.297, 429.298, 429.31,

 3  429.34, 429.35, 429.41, 429.42, 429.44, 429.445, 429.47,

 4  429.49, 429.51, 429.52, 429.53, and 429.54, Florida Statutes,

 5  respectively, designated as part I of chapter 429, Florida

 6  Statutes, and entitled "ASSISTED LIVING FACILITIES."

 7         Section 3.  Sections 400.616, 400.617, 400.618,

 8  400.619, 400.6194, 400.6196, 400.621, 400.6211, 400.622,

 9  400.625, 400.6255, 400.628, 400.629, Florida Statutes, are

10  renumbered as sections 429.60, 429.63, 429.65, 429.67, 429.69,

11  429.71, 429.73, 429.75, 429.77, 429.81, 429.83, 429.85, and

12  429.87, Florida Statutes, respectively, designated as part II

13  of chapter 429, Florida Statutes, and entitled "ADULT

14  FAMILY-CARE HOMES."

15         Section 4.  Sections 400.55, 400.551, 400.552, 400.553,

16  400.554, 400.555, 400.556, 400.5565, 400.557,  400.5571,

17  400.5572, 400.5575, 400.558, 400.559, 400.56, 400.562,

18  400.563, and 400.564, Florida Statutes, are renumbered as

19  sections 429.90, 429.901, 429.903, 429.905, 429.907, 429.909,

20  429.911, 429.913, 429.915, 429.917, 429.919, 429.921, 429.923,

21  429.925, 429.927, 429.929, 429.931, and 429.933, Florida

22  Statutes, designated as part III of chapter 429, Florida

23  Statutes, and entitled "ADULT DAY CARE CENTERS."

24         Section 5.  Subsection (1) of section 101.655, Florida

25  Statutes, is amended to read:

26         101.655  Supervised voting by absent electors in

27  certain facilities.--

28         (1)  The supervisor of elections of a county shall

29  provide supervised voting for absent electors residing in any

30  assisted living facility, as defined in s. 429.02 s. 400.402,

31  or nursing home facility, as defined in s. 400.021, within


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 1  that county at the request of any administrator of such a

 2  facility. Such request for supervised voting in the facility

 3  shall be made by submitting a written request to the

 4  supervisor of elections no later than 21 days prior to the

 5  election for which that request is submitted. The request

 6  shall specify the name and address of the facility and the

 7  name of the electors who wish to vote absentee in that

 8  election. If the request contains the names of fewer than five

 9  voters, the supervisor of elections is not required to provide

10  supervised voting.

11         Section 6.  Subsection (9) of section 189.428, Florida

12  Statutes, is amended to read:

13         189.428  Special districts; oversight review process.--

14         (9)  This section does not apply to a deepwater port

15  listed in s. 311.09(1) which is in compliance with a port

16  master plan adopted pursuant to s. 163.3178(2)(k), or to an

17  airport authority operating in compliance with an airport

18  master plan approved by the Federal Aviation Administration,

19  or to any special district organized to operate health systems

20  and facilities licensed under chapter 395, or chapter 400, or

21  chapter 429.

22         Section 7.  Paragraph (b) of subsection (2) of section

23  196.1975, Florida Statutes, is amended to read:

24         196.1975  Exemption for property used by nonprofit

25  homes for the aged.--Nonprofit homes for the aged are exempt

26  to the extent that they meet the following criteria:

27         (2)  A facility will not qualify as a "home for the

28  aged" unless at least 75 percent of the occupants are over the

29  age of 62 years or totally and permanently disabled.  For

30  homes for the aged which are exempt from paying income taxes

31  to the United States as specified in subsection (1), licensing


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 1  by the Agency for Health Care Administration is required for

 2  ad valorem tax exemption hereunder only if the home:

 3         (b)  Qualifies as an assisted living facility under

 4  part III of chapter 429 400.

 5         Section 8.  Paragraph (c) of subsection (4) of section

 6  202.125, Florida Statutes, is amended to read:

 7         202.125  Sales of communications services; specified

 8  exemptions.--

 9         (4)  The sale of communications services to a home for

10  the aged, religious institution or educational institution

11  that is exempt from federal income tax under s. 501(c)(3) of

12  the Internal Revenue Code, or by a religious institution that

13  is exempt from federal income tax under s. 501(c)(3) of the

14  Internal Revenue Code having an established physical place for

15  worship at which nonprofit religious services and activities

16  are regularly conducted and carried on, is exempt from the

17  taxes imposed or administered pursuant to ss. 202.12 and

18  202.19. As used in this subsection, the term:

19         (c)  "Home for the aged" includes any nonprofit

20  corporation:

21         1.  In which at least 75 percent of the occupants are

22  62 years of age or older or totally and permanently disabled;

23  which qualifies for an ad valorem property tax exemption under

24  s. 196.196, s. 196.197, or s. 196.1975; and which is exempt

25  from the sales tax imposed under chapter 212.

26         2.  Licensed as a nursing home under chapter 400 or an

27  assisted living facility under chapter 429 400 and which is

28  exempt from the sales tax imposed under chapter 212.

29         Section 9.  Section 205.1965, Florida Statutes, is

30  amended to read:

31  


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 1         205.1965  Assisted living facilities.--A county or

 2  municipality may not issue an occupational license for the

 3  operation of an assisted living facility pursuant to part III

 4  of chapter 429 400 without first ascertaining that the

 5  applicant has been licensed by the Agency for Health Care

 6  Administration to operate such facility at the specified

 7  location or locations.  The Agency for Health Care

 8  Administration shall furnish to local agencies responsible for

 9  issuing occupational licenses sufficient instructions for

10  making the above required determinations.

11         Section 10.  Paragraph (b) of subsection (1) of section

12  212.031, Florida Statutes, is amended to read:

13         212.031  Tax on rental or license fee for use of real

14  property.--

15         (1)

16         (b)  When a lease involves multiple use of real

17  property wherein a part of the real property is subject to the

18  tax herein, and a part of the property would be excluded from

19  the tax under subparagraph (a)1., subparagraph (a)2.,

20  subparagraph (a)3., or subparagraph (a)5., the department

21  shall determine, from the lease or license and such other

22  information as may be available, that portion of the total

23  rental charge which is exempt from the tax imposed by this

24  section. The portion of the premises leased or rented by a

25  for-profit entity providing a residential facility for the

26  aged will be exempt on the basis of a pro rata portion

27  calculated by combining the square footage of the areas used

28  for residential units by the aged and for the care of such

29  residents and dividing the resultant sum by the total square

30  footage of the rented premises. For purposes of this section,

31  the term "residential facility for the aged" means a facility


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 1  that is licensed or certified in whole or in part under

 2  chapter 400, chapter 429, or chapter 651; or that provides

 3  residences to the elderly and is financed by a mortgage or

 4  loan made or insured by the United States Department of

 5  Housing and Urban Development under s. 202, s. 202 with a s. 8

 6  subsidy, s. 221(d)(3) or (4), s. 232, or s. 236 of the

 7  National Housing Act; or other such similar facility that

 8  provides residences primarily for the elderly.

 9         Section 11.  Paragraph (i) of subsection (7) of section

10  212.08, Florida Statutes, is amended to read:

11         212.08  Sales, rental, use, consumption, distribution,

12  and storage tax; specified exemptions.--The sale at retail,

13  the rental, the use, the consumption, the distribution, and

14  the storage to be used or consumed in this state of the

15  following are hereby specifically exempt from the tax imposed

16  by this chapter.

17         (7)  MISCELLANEOUS EXEMPTIONS.--Exemptions provided to

18  any entity by this chapter do not inure to any transaction

19  that is otherwise taxable under this chapter when payment is

20  made by a representative or employee of the entity by any

21  means, including, but not limited to, cash, check, or credit

22  card, even when that representative or employee is

23  subsequently reimbursed by the entity. In addition, exemptions

24  provided to any entity by this subsection do not inure to any

25  transaction that is otherwise taxable under this chapter

26  unless the entity has obtained a sales tax exemption

27  certificate from the department or the entity obtains or

28  provides other documentation as required by the department.

29  Eligible purchases or leases made with such a certificate must

30  be in strict compliance with this subsection and departmental

31  rules, and any person who makes an exempt purchase with a


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 1  certificate that is not in strict compliance with this

 2  subsection and the rules is liable for and shall pay the tax.

 3  The department may adopt rules to administer this subsection.

 4         (i)  Hospital meals and rooms.--Also exempt from

 5  payment of the tax imposed by this chapter on rentals and

 6  meals are patients and inmates of any hospital or other

 7  physical plant or facility designed and operated primarily for

 8  the care of persons who are ill, aged, infirm, mentally or

 9  physically incapacitated, or otherwise dependent on special

10  care or attention. Residents of a home for the aged are exempt

11  from payment of taxes on meals provided through the facility.

12  A home for the aged is defined as a facility that is licensed

13  or certified in part or in whole under chapter 400, chapter

14  429, or chapter 651, or that is financed by a mortgage loan

15  made or insured by the United States Department of Housing and

16  Urban Development under s. 202, s. 202 with a s. 8 subsidy, s.

17  221(d)(3) or (4), s. 232, or s. 236 of the National Housing

18  Act, or other such similar facility designed and operated

19  primarily for the care of the aged.

20         Section 12.  Subsection (5) of section 296.02, Florida

21  Statutes, is amended to read:

22         296.02  Definitions.--For the purposes of this part,

23  except where the context clearly indicates otherwise:

24         (5)  "Extended congregate care" has the meaning given

25  to that term under s. 429.02 s. 400.402.

26         Section 13.  Subsections (1) and (3) of section

27  381.0035, Florida Statutes, are amended to read:

28         381.0035  Educational course on HIV and AIDS; employees

29  and clients of certain health care facilities.--

30         (1)  The Department of Health shall require all

31  employees and clients of facilities licensed under chapters


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 1  393, 394, and 397 and employees of facilities licensed under

 2  chapter 395, and parts II, III, and IV, and VI of chapter 400,

 3  and part I of chapter 429 to complete, biennially, a

 4  continuing educational course on the modes of transmission,

 5  infection control procedures, clinical management, and

 6  prevention of human immunodeficiency virus and acquired immune

 7  deficiency syndrome with an emphasis on appropriate behavior

 8  and attitude change. Such instruction shall include

 9  information on current Florida law and its impact on testing,

10  confidentiality of test results, and treatment of patients and

11  any protocols and procedures applicable to human

12  immunodeficiency counseling and testing, reporting, the

13  offering of HIV testing to pregnant women, and partner

14  notification issues pursuant to ss. 381.004 and 384.25.

15         (3)  Facilities licensed under chapters 393, 394, 395,

16  and 397, and parts II, III, and IV, and VI of chapter 400, and

17  part I of chapter 429 shall maintain a record of employees and

18  dates of attendance at human immunodeficiency virus and

19  acquired immune deficiency syndrome educational courses.

20         Section 14.  Subsection (9) of section 381.745, Florida

21  Statutes, is amended to read:

22         381.745  Definitions; ss. 381.739-381.79.--As used in

23  ss. 381.739-381.79, the term:

24         (9)  "Transitional living facility" means a

25  state-approved facility, as defined and licensed under chapter

26  400 or chapter 429, or a facility approved by the brain and

27  spinal cord injury program in accordance with this chapter.

28         Section 15.  Subsection (24) of section 393.063,

29  Florida Statutes, is amended to read:

30         393.063  Definitions.--For the purposes of this

31  chapter:


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 1         (24)  "Intermediate care facility for the

 2  developmentally disabled" or "ICF/DD" means a residential

 3  facility licensed and certified pursuant to part VIII XI of

 4  chapter 400.

 5         Section 16.  Paragraph (b) of subsection (1) of section

 6  393.506, Florida Statutes, is amended to read:

 7         393.506  Administration of medication.--

 8         (1)  Notwithstanding the provisions of part I of

 9  chapter 464, the Nurse Practice Act, unlicensed direct care

10  services staff providing services to persons with

11  developmental disabilities may administer oral, transdermal,

12  inhaled, or topical prescription medications as provided in

13  this section.

14         (b)  For intermediate care facilities for the

15  developmentally disabled licensed pursuant to part VIII XI of

16  chapter 400, unlicensed staff designated by the director may

17  provide medication assistance under the general supervision of

18  a registered nurse licensed pursuant to chapter 464.

19         Section 17.  Subsection (10) of section 394.455,

20  Florida Statutes, is amended to read:

21         394.455  Definitions.--As used in this part, unless the

22  context clearly requires otherwise, the term:

23         (10)  "Facility" means any hospital, community

24  facility, public or private facility, or receiving or

25  treatment facility providing for the evaluation, diagnosis,

26  care, treatment, training, or hospitalization of persons who

27  appear to have a mental illness or have been diagnosed as

28  having a mental illness.  "Facility" does not include any

29  program or entity licensed pursuant to chapter 400 or chapter

30  429.

31  


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 1         Section 18.  Paragraphs (b), (c), and (e) of subsection

 2  (2) of section 394.4574, Florida Statutes, are amended to

 3  read:

 4         394.4574  Department responsibilities for a mental

 5  health resident who resides in an assisted living facility

 6  that holds a limited mental health license.--

 7         (2)  The department must ensure that:

 8         (b)  A cooperative agreement, as required in s. 429.075

 9  s. 400.4075, is developed between the mental health care

10  services provider that serves a mental health resident and the

11  administrator of the assisted living facility with a limited

12  mental health license in which the mental health resident is

13  living. Any entity that provides Medicaid prepaid health plan

14  services shall ensure the appropriate coordination of health

15  care services with an assisted living facility in cases where

16  a Medicaid recipient is both a member of the entity's prepaid

17  health plan and a resident of the assisted living facility. If

18  the entity is at risk for Medicaid targeted case management

19  and behavioral health services, the entity shall inform the

20  assisted living facility of the procedures to follow should an

21  emergent condition arise.

22         (c)  The community living support plan, as defined in

23  s. 429.02 s. 400.402, has been prepared by a mental health

24  resident and a mental health case manager of that resident in

25  consultation with the administrator of the facility or the

26  administrator's designee. The plan must be provided to the

27  administrator of the assisted living facility with a limited

28  mental health license in which the mental health resident

29  lives. The support plan and the agreement may be in one

30  document.

31  


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 1         (e)  The mental health services provider assigns a case

 2  manager to each mental health resident who lives in an

 3  assisted living facility with a limited mental health license.

 4  The case manager is responsible for coordinating the

 5  development of and implementation of the community living

 6  support plan defined in s. 429.02 s. 400.402. The plan must be

 7  updated at least annually.

 8         Section 19.  Paragraph (b) of subsection (2) of section

 9  394.463, Florida Statutes, is amended to read:

10         394.463  Involuntary examination.--

11         (2)  INVOLUNTARY EXAMINATION.--

12         (b)  A person shall not be removed from any program or

13  residential placement licensed under chapter 400 or chapter

14  429 and transported to a receiving facility for involuntary

15  examination unless an ex parte order, a professional

16  certificate, or a law enforcement officer's report is first

17  prepared.  If the condition of the person is such that

18  preparation of a law enforcement officer's report is not

19  practicable before removal, the report shall be completed as

20  soon as possible after removal, but in any case before the

21  person is transported to a receiving facility.  A receiving

22  facility admitting a person for involuntary examination who is

23  not accompanied by the required ex parte order, professional

24  certificate, or law enforcement officer's report shall notify

25  the Agency for Health Care Administration of such admission by

26  certified mail no later than the next working day.  The

27  provisions of this paragraph do not apply when transportation

28  is provided by the patient's family or guardian.

29         Section 20.  Paragraph (b) of subsection (3) of section

30  400.0063, Florida Statutes, is amended to read:

31  


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 1         400.0063  Establishment of Office of State Long-Term

 2  Care Ombudsman; designation of ombudsman and legal advocate.--

 3         (3)

 4         (b)  The duties of the legal advocate shall include,

 5  but not be limited to:

 6         1.  Assisting the ombudsman in carrying out the duties

 7  of the office with respect to the abuse, neglect, or violation

 8  of rights of residents of long-term care facilities.

 9         2.  Assisting the state and local ombudsman councils in

10  carrying out their responsibilities under this part.

11         3.  Initiating and prosecuting legal and equitable

12  actions to enforce the rights of long-term care facility

13  residents as defined in this chapter or chapter 429.

14         4.  Serving as legal counsel to the state and local

15  ombudsman councils, or individual members thereof, against

16  whom any suit or other legal action is initiated in connection

17  with the performance of the official duties of the councils or

18  an individual member.

19         Section 21.  Subsection (3) of section 400.0069,

20  Florida Statutes, is amended to read:

21         400.0069  Local long-term care ombudsman councils;

22  duties; membership.--

23         (3)  In order to carry out the duties specified in

24  subsection (2), the local ombudsman council is authorized,

25  pursuant to ss. 400.19(1) and 429.34 400.434, to enter any

26  long-term care facility without notice or first obtaining a

27  warrant, subject to the provisions of s. 400.0073(5).

28         Section 22.  Paragraphs (c) and (f) of subsection (5)

29  and subsection (6) of section 400.0073, Florida Statutes, are

30  amended to read:

31  


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 1         400.0073  State and local ombudsman council

 2  investigations.--

 3         (5)  Any onsite administrative inspection conducted by

 4  an ombudsman council shall be subject to the following:

 5         (c)  Inspections shall be conducted in a manner which

 6  will impose no unreasonable burden on nursing homes or

 7  long-term care facilities, consistent with the underlying

 8  purposes of this part and chapter 429. Unnecessary duplication

 9  of efforts among council members or the councils shall be

10  reduced to the extent possible.

11         (f)  All inspections shall be limited to compliance

12  with part parts II, III, and VII of this chapter, chapter 429,

13  and 42 U.S.C. ss. 1396(a) et seq., and any rules or

14  regulations promulgated pursuant to such laws.

15         (6)  An inspection may not be accomplished by forcible

16  entry. Refusal of a long-term care facility to allow entry of

17  any ombudsman council member constitutes a violation of part

18  II, part III, or part VII of this chapter or chapter 429.

19         Section 23.  Subsection (4) of section 400.0077,

20  Florida Statutes, is amended to read:

21         400.0077  Confidentiality.--

22         (4)  Members of any state or local ombudsman council

23  shall not be required to testify in any court with respect to

24  matters held to be confidential under s. 429.14 s. 400.414

25  except as may be necessary to enforce the provisions of this

26  act.

27         Section 24.  Subsection (1) of section 400.0239,

28  Florida Statutes, is amended to read:

29         400.0239  Quality of Long-Term Care Facility

30  Improvement Trust Fund.--

31  


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 1         (1)  There is created within the Agency for Health Care

 2  Administration a Quality of Long-Term Care Facility

 3  Improvement Trust Fund to support activities and programs

 4  directly related to improvement of the care of nursing home

 5  and assisted living facility residents. The trust fund shall

 6  be funded through proceeds generated pursuant to ss. 400.0238

 7  and 429.298 400.4298, through funds specifically appropriated

 8  by the Legislature, through gifts, endowments, and other

 9  charitable contributions allowed under federal and state law,

10  and through federal nursing home civil monetary penalties

11  collected by the Centers for Medicare and Medicaid Services

12  and returned to the state. These funds must be utilized in

13  accordance with federal requirements.

14         Section 25.  Subsections (1) and (4) of section

15  400.119, Florida Statutes, are amended to read:

16         400.119  Confidentiality of records and meetings of

17  risk management and quality assurance committees.--

18         (1)  Records of meetings of the risk management and

19  quality assurance committee of a long-term care facility

20  licensed under this part or part I III of this chapter 429, as

21  well as incident reports filed with the facility's risk

22  manager and administrator, notifications of the occurrence of

23  an adverse incident, and adverse incident reports from the

24  facility are confidential and exempt from s. 119.07(1) and s.

25  24(a), Art. I of the State Constitution. However, if the

26  Agency for Health Care Administration has a reasonable belief

27  that conduct by a staff member or employee of a facility is

28  criminal activity or grounds for disciplinary action by a

29  regulatory board, the agency may disclose such records to the

30  appropriate law enforcement agency or regulatory board.

31  


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 1         (4)  The meetings of an internal risk management and

 2  quality assurance committee of a long-term care facility

 3  licensed under this part or part I III of this chapter 429 are

 4  exempt from s. 286.011 and s. 24(b), Art. I of the State

 5  Constitution and are not open to the public.

 6         Section 26.  Subsections (4) and (7) of section

 7  400.141, Florida Statutes, are amended to read:

 8         400.141  Administration and management of nursing home

 9  facilities.--Every licensed facility shall comply with all

10  applicable standards and rules of the agency and shall:

11         (4)  Provide for resident use of a community pharmacy

12  as specified in s. 400.022(1)(q). Any other law to the

13  contrary notwithstanding, a registered pharmacist licensed in

14  Florida, that is under contract with a facility licensed under

15  this chapter or chapter 429, shall repackage a nursing

16  facility resident's bulk prescription medication which has

17  been packaged by another pharmacist licensed in any state in

18  the United States into a unit dose system compatible with the

19  system used by the nursing facility, if the pharmacist is

20  requested to offer such service. In order to be eligible for

21  the repackaging, a resident or the resident's spouse must

22  receive prescription medication benefits provided through a

23  former employer as part of his or her retirement benefits, a

24  qualified pension plan as specified in s. 4972 of the Internal

25  Revenue Code, a federal retirement program as specified under

26  5 C.F.R. s. 831, or a long-term care policy as defined in s.

27  627.9404(1). A pharmacist who correctly repackages and

28  relabels the medication and the nursing facility which

29  correctly administers such repackaged medication under the

30  provisions of this subsection shall not be held liable in any

31  civil or administrative action arising from the repackaging.


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 1  In order to be eligible for the repackaging, a nursing

 2  facility resident for whom the medication is to be repackaged

 3  shall sign an informed consent form provided by the facility

 4  which includes an explanation of the repackaging process and

 5  which notifies the resident of the immunities from liability

 6  provided herein. A pharmacist who repackages and relabels

 7  prescription medications, as authorized under this subsection,

 8  may charge a reasonable fee for costs resulting from the

 9  implementation of this provision.

10         (7)  If the facility has a standard license or is a

11  Gold Seal facility, exceeds the minimum required hours of

12  licensed nursing and certified nursing assistant direct care

13  per resident per day, and is part of a continuing care

14  facility licensed under chapter 651 or a retirement community

15  that offers other services pursuant to part III of this

16  chapter or part I or part III of chapter 429, part IV, or part

17  V on a single campus, be allowed to share programming and

18  staff. At the time of inspection and in the semiannual report

19  required pursuant to subsection (15), a continuing care

20  facility or retirement community that uses this option must

21  demonstrate through staffing records that minimum staffing

22  requirements for the facility were met. Licensed nurses and

23  certified nursing assistants who work in the nursing home

24  facility may be used to provide services elsewhere on campus

25  if the facility exceeds the minimum number of direct care

26  hours required per resident per day and the total number of

27  residents receiving direct care services from a licensed nurse

28  or a certified nursing assistant does not cause the facility

29  to violate the staffing ratios required under s. 400.23(3)(a).

30  Compliance with the minimum staffing ratios shall be based on

31  total number of residents receiving direct care services,


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 1  regardless of where they reside on campus. If the facility

 2  receives a conditional license, it may not share staff until

 3  the conditional license status ends. This subsection does not

 4  restrict the agency's authority under federal or state law to

 5  require additional staff if a facility is cited for

 6  deficiencies in care which are caused by an insufficient

 7  number of certified nursing assistants or licensed nurses. The

 8  agency may adopt rules for the documentation necessary to

 9  determine compliance with this provision.

10  

11  Facilities that have been awarded a Gold Seal under the

12  program established in s. 400.235 may develop a plan to

13  provide certified nursing assistant training as prescribed by

14  federal regulations and state rules and may apply to the

15  agency for approval of their program.

16         Section 27.  Paragraph (a) of subsection (2) of section

17  400.191, Florida Statutes, is amended to read:

18         400.191  Availability, distribution, and posting of

19  reports and records.--

20         (2)  The agency shall provide additional information in

21  consumer-friendly printed and electronic formats to assist

22  consumers and their families in comparing and evaluating

23  nursing home facilities.

24         (a)  The agency shall provide an Internet site which

25  shall include at least the following information either

26  directly or indirectly through a link to another established

27  site or sites of the agency's choosing:

28         1.  A list by name and address of all nursing home

29  facilities in this state.

30         2.  Whether such nursing home facilities are

31  proprietary or nonproprietary.


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 1         3.  The current owner of the facility's license and the

 2  year that that entity became the owner of the license.

 3         4.  The name of the owner or owners of each facility

 4  and whether the facility is affiliated with a company or other

 5  organization owning or managing more than one nursing facility

 6  in this state.

 7         5.  The total number of beds in each facility.

 8         6.  The number of private and semiprivate rooms in each

 9  facility.

10         7.  The religious affiliation, if any, of each

11  facility.

12         8.  The languages spoken by the administrator and staff

13  of each facility.

14         9.  Whether or not each facility accepts Medicare or

15  Medicaid recipients or insurance, health maintenance

16  organization, Veterans Administration, CHAMPUS program, or

17  workers' compensation coverage.

18         10.  Recreational and other programs available at each

19  facility.

20         11.  Special care units or programs offered at each

21  facility.

22         12.  Whether the facility is a part of a retirement

23  community that offers other services pursuant to part III of

24  this chapter or part I or part III of chapter 429, part IV, or

25  part V.

26         13.  Survey and deficiency information contained on the

27  Online Survey Certification and Reporting (OSCAR) system of

28  the federal Health Care Financing Administration, including

29  annual survey, revisit, and complaint survey information, for

30  each facility for the past 45 months.  For noncertified

31  nursing homes, state survey and deficiency information,


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 1  including annual survey, revisit, and complaint survey

 2  information for the past 45 months shall be provided.

 3         14.  A summary of the Online Survey Certification and

 4  Reporting (OSCAR) data for each facility over the past 45

 5  months. Such summary may include a score, rating, or

 6  comparison ranking with respect to other facilities based on

 7  the number of citations received by the facility of annual,

 8  revisit, and complaint surveys; the severity and scope of the

 9  citations; and the number of annual recertification surveys

10  the facility has had during the past 45 months. The score,

11  rating, or comparison ranking may be presented in either

12  numeric or symbolic form for the intended consumer audience.

13         Section 28.  Paragraph (b) of subsection (2) of section

14  400.215, Florida Statutes, is amended to read:

15         400.215  Personnel screening requirement.--

16         (2)  Employers and employees shall comply with the

17  requirements of s. 435.05.

18         (b)  Employees qualified under the provisions of

19  paragraph (a) who have not maintained continuous residency

20  within the state for the 5 years immediately preceding the

21  date of request for background screening must complete level 2

22  screening, as provided in chapter 435. Such employees may work

23  in a conditional status up to 180 days pending the receipt of

24  written findings evidencing the completion of level 2

25  screening. Level 2 screening shall not be required of

26  employees or prospective employees who attest in writing under

27  penalty of perjury that they meet the residency requirement.

28  Completion of level 2 screening shall require the employee or

29  prospective employee to furnish to the nursing facility a full

30  set of fingerprints to enable a criminal background

31  investigation to be conducted. The nursing facility shall


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 1  submit the completed fingerprint card to the agency. The

 2  agency shall establish a record of the request in the database

 3  provided for in paragraph (c) and forward the request to the

 4  Department of Law Enforcement, which is authorized to submit

 5  the fingerprints to the Federal Bureau of Investigation for a

 6  national criminal history records check. The results of the

 7  national criminal history records check shall be returned to

 8  the agency, which shall maintain the results in the database

 9  provided for in paragraph (c). The agency shall notify the

10  administrator of the requesting nursing facility or the

11  administrator of any other facility licensed under chapter

12  393, chapter 394, chapter 395, chapter 397, chapter 429, or

13  this chapter, as requested by such facility, as to whether or

14  not the employee has qualified under level 1 or level 2

15  screening. An employee or prospective employee who has

16  qualified under level 2 screening and has maintained such

17  continuous residency within the state shall not be required to

18  complete a subsequent level 2 screening as a condition of

19  employment at another facility.

20         Section 29.  Section 400.402, Florida Statutes, is

21  renumbered as section 429.02, Florida Statutes, and amended to

22  read:

23         429.02 400.402  Definitions.--When used in this part,

24  the term:

25         (1)  "Activities of daily living" means functions and

26  tasks for self-care, including ambulation, bathing, dressing,

27  eating, grooming, and toileting, and other similar tasks.

28         (2)  "Administrator" means an individual at least 21

29  years of age who is responsible for the operation and

30  maintenance of an assisted living facility.

31  


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 1         (3)  "Agency" means the Agency for Health Care

 2  Administration.

 3         (4)  "Aging in place" or "age in place" means the

 4  process of providing increased or adjusted services to a

 5  person to compensate for the physical or mental decline that

 6  may occur with the aging process, in order to maximize the

 7  person's dignity and independence and permit them to remain in

 8  a familiar, noninstitutional, residential environment for as

 9  long as possible. Such services may be provided by facility

10  staff, volunteers, family, or friends, or through contractual

11  arrangements with a third party.

12         (5)  "Applicant" means an individual owner,

13  corporation, partnership, firm, association, or governmental

14  entity that applies for a license.

15         (6)  "Assisted living facility" means any building or

16  buildings, section or distinct part of a building, private

17  home, boarding home, home for the aged, or other residential

18  facility, whether operated for profit or not, which undertakes

19  through its ownership or management to provide housing, meals,

20  and one or more personal services for a period exceeding 24

21  hours to one or more adults who are not relatives of the owner

22  or administrator.

23         (7)  "Chemical restraint" means a pharmacologic drug

24  that physically limits, restricts, or deprives an individual

25  of movement or mobility, and is used for discipline or

26  convenience and not required for the treatment of medical

27  symptoms.

28         (8)  "Community living support plan" means a written

29  document prepared by a mental health resident and the

30  resident's mental health case manager in consultation with the

31  administrator of an assisted living facility with a limited


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 1  mental health license or the administrator's designee. A copy

 2  must be provided to the administrator. The plan must include

 3  information about the supports, services, and special needs of

 4  the resident which enable the resident to live in the assisted

 5  living facility and a method by which facility staff can

 6  recognize and respond to the signs and symptoms particular to

 7  that resident which indicate the need for professional

 8  services.

 9         (9)  "Cooperative agreement" means a written statement

10  of understanding between a mental health care provider and the

11  administrator of the assisted living facility with a limited

12  mental health license in which a mental health resident is

13  living. The agreement must specify directions for accessing

14  emergency and after-hours care for the mental health resident.

15  A single cooperative agreement may service all mental health

16  residents who are clients of the same mental health care

17  provider.

18         (10)  "Department" means the Department of Elderly

19  Affairs.

20         (11)  "Emergency" means a situation, physical

21  condition, or method of operation which presents imminent

22  danger of death or serious physical or mental harm to facility

23  residents.

24         (12)  "Extended congregate care" means acts beyond

25  those authorized in subsection (17) that may be performed

26  pursuant to part I of chapter 464 by persons licensed

27  thereunder while carrying out their professional duties, and

28  other supportive services which may be specified by rule.  The

29  purpose of such services is to enable residents to age in

30  place in a residential environment despite mental or physical

31  


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 1  limitations that might otherwise disqualify them from

 2  residency in a facility licensed under this part.

 3         (13)  "Guardian" means a person to whom the law has

 4  entrusted the custody and control of the person or property,

 5  or both, of a person who has been legally adjudged

 6  incapacitated.

 7         (14)  "Limited nursing services" means acts that may be

 8  performed pursuant to part I of chapter 464 by persons

 9  licensed thereunder while carrying out their professional

10  duties but limited to those acts which the department

11  specifies by rule.  Acts which may be specified by rule as

12  allowable limited nursing services shall be for persons who

13  meet the admission criteria established by the department for

14  assisted living facilities and shall not be complex enough to

15  require 24-hour nursing supervision and may include such

16  services as the application and care of routine dressings, and

17  care of casts, braces, and splints.

18         (15)  "Managed risk" means the process by which the

19  facility staff discuss the service plan and the needs of the

20  resident with the resident and, if applicable, the resident's

21  representative or designee or the resident's surrogate,

22  guardian, or attorney in fact, in such a way that the

23  consequences of a decision, including any inherent risk, are

24  explained to all parties and reviewed periodically in

25  conjunction with the service plan, taking into account changes

26  in the resident's status and the ability of the facility to

27  respond accordingly.

28         (16)  "Mental health resident" means an individual who

29  receives social security disability income due to a mental

30  disorder as determined by the Social Security Administration

31  or receives supplemental security income due to a mental


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 1  disorder as determined by the Social Security Administration

 2  and receives optional state supplementation.

 3         (17)  "Personal services" means direct physical

 4  assistance with or supervision of the activities of daily

 5  living and the self-administration of medication and other

 6  similar services which the department may define by

 7  rule.  "Personal services" shall not be construed to mean the

 8  provision of medical, nursing, dental, or mental health

 9  services.

10         (18)  "Physical restraint" means a device which

11  physically limits, restricts, or deprives an individual of

12  movement or mobility, including, but not limited to, a

13  half-bed rail, a full-bed rail, a geriatric chair, and a posey

14  restraint. The term "physical restraint" shall also include

15  any device which was not specifically manufactured as a

16  restraint but which has been altered, arranged, or otherwise

17  used for this purpose. The term shall not include bandage

18  material used for the purpose of binding a wound or injury.

19         (19)  "Relative" means an individual who is the father,

20  mother, stepfather, stepmother, son, daughter, brother,

21  sister, grandmother, grandfather, great-grandmother,

22  great-grandfather, grandson, granddaughter, uncle, aunt, first

23  cousin, nephew, niece, husband, wife, father-in-law,

24  mother-in-law, son-in-law, daughter-in-law, brother-in-law,

25  sister-in-law, stepson, stepdaughter, stepbrother, stepsister,

26  half brother, or half sister of an owner or administrator.

27         (20)  "Resident" means a person 18 years of age or

28  older, residing in and receiving care from a facility.

29         (21)  "Resident's representative or designee" means a

30  person other than the owner, or an agent or employee of the

31  facility, designated in writing by the resident, if legally


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 1  competent, to receive notice of changes in the contract

 2  executed pursuant to s. 429.24 s. 400.424; to receive notice

 3  of and to participate in meetings between the resident and the

 4  facility owner, administrator, or staff concerning the rights

 5  of the resident; to assist the resident in contacting the

 6  ombudsman council if the resident has a complaint against the

 7  facility; or to bring legal action on behalf of the resident

 8  pursuant to s. 429.29 s. 400.429.

 9         (22)  "Service plan" means a written plan, developed

10  and agreed upon by the resident and, if applicable, the

11  resident's representative or designee or the resident's

12  surrogate, guardian, or attorney in fact, if any, and the

13  administrator or designee representing the facility, which

14  addresses the unique physical and psychosocial needs,

15  abilities, and personal preferences of each resident receiving

16  extended congregate care services. The plan shall include a

17  brief written description, in easily understood language, of

18  what services shall be provided, who shall provide the

19  services, when the services shall be rendered, and the

20  purposes and benefits of the services.

21         (23)  "Shared responsibility" means exploring the

22  options available to a resident within a facility and the

23  risks involved with each option when making decisions

24  pertaining to the resident's abilities, preferences, and

25  service needs, thereby enabling the resident and, if

26  applicable, the resident's representative or designee, or the

27  resident's surrogate, guardian, or attorney in fact, and the

28  facility to develop a service plan which best meets the

29  resident's needs and seeks to improve the resident's quality

30  of life.

31  


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 1         (24)  "Supervision" means reminding residents to engage

 2  in activities of daily living and the self-administration of

 3  medication, and, when necessary, observing or providing verbal

 4  cuing to residents while they perform these activities.

 5         (25)  "Supplemental security income," Title XVI of the

 6  Social Security Act, means a program through which the Federal

 7  Government guarantees a minimum monthly income to every person

 8  who is age 65 or older, or disabled, or blind and meets the

 9  income and asset requirements.

10         (26)  "Supportive services" means services designed to

11  encourage and assist aged persons or adults with disabilities

12  to remain in the least restrictive living environment and to

13  maintain their independence as long as possible.

14         (27)  "Twenty-four-hour nursing supervision" means

15  services that are ordered by a physician for a resident whose

16  condition requires the supervision of a physician and

17  continued monitoring of vital signs and physical status.  Such

18  services shall be: medically complex enough to require

19  constant supervision, assessment, planning, or intervention by

20  a nurse; required to be performed by or under the direct

21  supervision of licensed nursing personnel or other

22  professional personnel for safe and effective performance;

23  required on a daily basis; and consistent with the nature and

24  severity of the resident's condition or the disease state or

25  stage.

26         Section 30.  Section 400.404, Florida Statutes, is

27  renumbered as section 429.04, Florida Statutes, and amended to

28  read:

29         429.04 400.404  Facilities to be licensed;

30  exemptions.--

31  


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 1         (1)  For the administration of this part, facilities to

 2  be licensed by the agency shall include all assisted living

 3  facilities as defined in this part.

 4         (2)  The following are exempt from licensure under this

 5  part:

 6         (a)  Any facility, institution, or other place operated

 7  by the Federal Government or any agency of the Federal

 8  Government.

 9         (b)  Any facility or part of a facility licensed under

10  chapter 393 or chapter 394.

11         (c)  Any facility licensed as an adult family-care home

12  under part II of chapter 429 VII.

13         (d)  Any person who provides housing, meals, and one or

14  more personal services on a 24-hour basis in the person's own

15  home to not more than two adults who do not receive optional

16  state supplementation. The person who provides the housing,

17  meals, and personal services must own or rent the home and

18  reside therein.

19         (e)  Any home or facility approved by the United States

20  Department of Veterans Affairs as a residential care home

21  wherein care is provided exclusively to three or fewer

22  veterans.

23         (f)  Any facility that has been incorporated in this

24  state for 50 years or more on or before July 1, 1983, and the

25  board of directors of which is nominated or elected by the

26  residents, until the facility is sold or its ownership is

27  transferred; or any facility, with improvements or additions

28  thereto, which has existed and operated continuously in this

29  state for 60 years or more on or before July 1, 1989, is

30  directly or indirectly owned and operated by a nationally

31  recognized fraternal organization, is not open to the public,


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 1  and accepts only its own members and their spouses as

 2  residents.

 3         (g)  Any facility certified under chapter 651, or a

 4  retirement community, may provide services authorized under

 5  this part or part III IV of this chapter 400 to its residents

 6  who live in single-family homes, duplexes, quadruplexes, or

 7  apartments located on the campus without obtaining a license

 8  to operate an assisted living facility if residential units

 9  within such buildings are used by residents who do not require

10  staff supervision for that portion of the day when personal

11  services are not being delivered and the owner obtains a home

12  health license to provide such services.  However, any

13  building or distinct part of a building on the campus that is

14  designated for persons who receive personal services and

15  require supervision beyond that which is available while such

16  services are being rendered must be licensed in accordance

17  with this part. If a facility provides personal services to

18  residents who do not otherwise require supervision and the

19  owner is not licensed as a home health agency, the buildings

20  or distinct parts of buildings where such services are

21  rendered must be licensed under this part. A resident of a

22  facility that obtains a home health license may contract with

23  a home health agency of his or her choice, provided that the

24  home health agency provides liability insurance and workers'

25  compensation coverage for its employees. Facilities covered by

26  this exemption may establish policies that give residents the

27  option of contracting for services and care beyond that which

28  is provided by the facility to enable them to age in

29  place.  For purposes of this section, a retirement community

30  consists of a facility licensed under this part or under part

31  


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 1  II of chapter 400, and apartments designed for independent

 2  living located on the same campus.

 3         (h)  Any residential unit for independent living which

 4  is located within a facility certified under chapter 651, or

 5  any residential unit which is colocated with a nursing home

 6  licensed under part II of chapter 400 or colocated with a

 7  facility licensed under this part in which services are

 8  provided through an outpatient clinic or a nursing home on an

 9  outpatient basis.

10         Section 31.  Section 400.407, Florida Statutes, is

11  renumbered as section 429.07, Florida Statutes, and amended to

12  read:

13         429.07 400.407  License required; fee, display.--

14         (1)  A license issued by the agency is required for an

15  assisted living facility operating in this state.

16         (2)  Separate licenses shall be required for facilities

17  maintained in separate premises, even though operated under

18  the same management.  A separate license shall not be required

19  for separate buildings on the same grounds.

20         (3)  Any license granted by the agency must state the

21  maximum resident capacity of the facility, the type of care

22  for which the license is granted, the date the license is

23  issued, the expiration date of the license, and any other

24  information deemed necessary by the agency. Licenses shall be

25  issued for one or more of the following categories of care:

26  standard, extended congregate care, limited nursing services,

27  or limited mental health.

28         (a)  A standard license shall be issued to facilities

29  providing one or more of the personal services identified in

30  s. 429.02 s. 400.402. Such facilities may also employ or

31  contract with a person licensed under part I of chapter 464 to


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 1  administer medications and perform other tasks as specified in

 2  s. 429.255 s. 400.4255.

 3         (b)  An extended congregate care license shall be

 4  issued to facilities providing, directly or through contract,

 5  services beyond those authorized in paragraph (a), including

 6  acts performed pursuant to part I of chapter 464 by persons

 7  licensed thereunder, and supportive services defined by rule

 8  to persons who otherwise would be disqualified from continued

 9  residence in a facility licensed under this part.

10         1.  In order for extended congregate care services to

11  be provided in a facility licensed under this part, the agency

12  must first determine that all requirements established in law

13  and rule are met and must specifically designate, on the

14  facility's license, that such services may be provided and

15  whether the designation applies to all or part of a facility.

16  Such designation may be made at the time of initial licensure

17  or relicensure, or upon request in writing by a licensee under

18  this part. Notification of approval or denial of such request

19  shall be made within 90 days after receipt of such request and

20  all necessary documentation. Existing facilities qualifying to

21  provide extended congregate care services must have maintained

22  a standard license and may not have been subject to

23  administrative sanctions during the previous 2 years, or since

24  initial licensure if the facility has been licensed for less

25  than 2 years, for any of the following reasons:

26         a.  A class I or class II violation;

27         b.  Three or more repeat or recurring class III

28  violations of identical or similar resident care standards as

29  specified in rule from which a pattern of noncompliance is

30  found by the agency;

31  


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 1         c.  Three or more class III violations that were not

 2  corrected in accordance with the corrective action plan

 3  approved by the agency;

 4         d.  Violation of resident care standards resulting in a

 5  requirement to employ the services of a consultant pharmacist

 6  or consultant dietitian;

 7         e.  Denial, suspension, or revocation of a license for

 8  another facility under this part in which the applicant for an

 9  extended congregate care license has at least 25 percent

10  ownership interest; or

11         f.  Imposition of a moratorium on admissions or

12  initiation of injunctive proceedings.

13         2.  Facilities that are licensed to provide extended

14  congregate care services shall maintain a written progress

15  report on each person who receives such services, which report

16  describes the type, amount, duration, scope, and outcome of

17  services that are rendered and the general status of the

18  resident's health.  A registered nurse, or appropriate

19  designee, representing the agency shall visit such facilities

20  at least quarterly to monitor residents who are receiving

21  extended congregate care services and to determine if the

22  facility is in compliance with this part and with rules that

23  relate to extended congregate care. One of these visits may be

24  in conjunction with the regular survey.  The monitoring visits

25  may be provided through contractual arrangements with

26  appropriate community agencies.  A registered nurse shall

27  serve as part of the team that inspects such facility. The

28  agency may waive one of the required yearly monitoring visits

29  for a facility that has been licensed for at least 24 months

30  to provide extended congregate care services, if, during the

31  inspection, the registered nurse determines that extended


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 1  congregate care services are being provided appropriately, and

 2  if the facility has no class I or class II violations and no

 3  uncorrected class III violations. Before such decision is

 4  made, the agency shall consult with the long-term care

 5  ombudsman council for the area in which the facility is

 6  located to determine if any complaints have been made and

 7  substantiated about the quality of services or care.  The

 8  agency may not waive one of the required yearly monitoring

 9  visits if complaints have been made and substantiated.

10         3.  Facilities that are licensed to provide extended

11  congregate care services shall:

12         a.  Demonstrate the capability to meet unanticipated

13  resident service needs.

14         b.  Offer a physical environment that promotes a

15  homelike setting, provides for resident privacy, promotes

16  resident independence, and allows sufficient congregate space

17  as defined by rule.

18         c.  Have sufficient staff available, taking into

19  account the physical plant and firesafety features of the

20  building, to assist with the evacuation of residents in an

21  emergency, as necessary.

22         d.  Adopt and follow policies and procedures that

23  maximize resident independence, dignity, choice, and

24  decisionmaking to permit residents to age in place to the

25  extent possible, so that moves due to changes in functional

26  status are minimized or avoided.

27         e.  Allow residents or, if applicable, a resident's

28  representative, designee, surrogate, guardian, or attorney in

29  fact to make a variety of personal choices, participate in

30  developing service plans, and share responsibility in

31  decisionmaking.


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 1         f.  Implement the concept of managed risk.

 2         g.  Provide, either directly or through contract, the

 3  services of a person licensed pursuant to part I of chapter

 4  464.

 5         h.  In addition to the training mandated in s. 429.52

 6  s. 400.452, provide specialized training as defined by rule

 7  for facility staff.

 8         4.  Facilities licensed to provide extended congregate

 9  care services are exempt from the criteria for continued

10  residency as set forth in rules adopted under s. 429.41 s.

11  400.441.  Facilities so licensed shall adopt their own

12  requirements within guidelines for continued residency set

13  forth by the department in rule. However, such facilities may

14  not serve residents who require 24-hour nursing supervision.

15  Facilities licensed to provide extended congregate care

16  services shall provide each resident with a written copy of

17  facility policies governing admission and retention.

18         5.  The primary purpose of extended congregate care

19  services is to allow residents, as they become more impaired,

20  the option of remaining in a familiar setting from which they

21  would otherwise be disqualified for continued residency.  A

22  facility licensed to provide extended congregate care services

23  may also admit an individual who exceeds the admission

24  criteria for a facility with a standard license, if the

25  individual is determined appropriate for admission to the

26  extended congregate care facility.

27         6.  Before admission of an individual to a facility

28  licensed to provide extended congregate care services, the

29  individual must undergo a medical examination as provided in

30  s. 400.26(4) s. 400.426(4) and the facility must develop a

31  preliminary service plan for the individual.


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 1         7.  When a facility can no longer provide or arrange

 2  for services in accordance with the resident's service plan

 3  and needs and the facility's policy, the facility shall make

 4  arrangements for relocating the person in accordance with s.

 5  429.28(1)(k) s. 400.428(1)(k).

 6         8.  Failure to provide extended congregate care

 7  services may result in denial of extended congregate care

 8  license renewal.

 9         9.  No later than January 1 of each year, the

10  department, in consultation with the agency, shall prepare and

11  submit to the Governor, the President of the Senate, the

12  Speaker of the House of Representatives, and the chairs of

13  appropriate legislative committees, a report on the status of,

14  and recommendations related to, extended congregate care

15  services. The status report must include, but need not be

16  limited to, the following information:

17         a.  A description of the facilities licensed to provide

18  such services, including total number of beds licensed under

19  this part.

20         b.  The number and characteristics of residents

21  receiving such services.

22         c.  The types of services rendered that could not be

23  provided through a standard license.

24         d.  An analysis of deficiencies cited during licensure

25  inspections.

26         e.  The number of residents who required extended

27  congregate care services at admission and the source of

28  admission.

29         f.  Recommendations for statutory or regulatory

30  changes.

31  


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 1         g.  The availability of extended congregate care to

 2  state clients residing in facilities licensed under this part

 3  and in need of additional services, and recommendations for

 4  appropriations to subsidize extended congregate care services

 5  for such persons.

 6         h.  Such other information as the department considers

 7  appropriate.

 8         (c)  A limited nursing services license shall be issued

 9  to a facility that provides services beyond those authorized

10  in paragraph (a) and as specified in this paragraph.

11         1.  In order for limited nursing services to be

12  provided in a facility licensed under this part, the agency

13  must first determine that all requirements established in law

14  and rule are met and must specifically designate, on the

15  facility's license, that such services may be provided. Such

16  designation may be made at the time of initial licensure or

17  relicensure, or upon request in writing by a licensee under

18  this part. Notification of approval or denial of such request

19  shall be made within 90 days after receipt of such request and

20  all necessary documentation. Existing facilities qualifying to

21  provide limited nursing services shall have maintained a

22  standard license and may not have been subject to

23  administrative sanctions that affect the health, safety, and

24  welfare of residents for the previous 2 years or since initial

25  licensure if the facility has been licensed for less than 2

26  years.

27         2.  Facilities that are licensed to provide limited

28  nursing services shall maintain a written progress report on

29  each person who receives such nursing services, which report

30  describes the type, amount, duration, scope, and outcome of

31  services that are rendered and the general status of the


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 1  resident's health.  A registered nurse representing the agency

 2  shall visit such facilities at least twice a year to monitor

 3  residents who are receiving limited nursing services and to

 4  determine if the facility is in compliance with applicable

 5  provisions of this part and with related rules. The monitoring

 6  visits may be provided through contractual arrangements with

 7  appropriate community agencies.  A registered nurse shall also

 8  serve as part of the team that inspects such facility.

 9         3.  A person who receives limited nursing services

10  under this part must meet the admission criteria established

11  by the agency for assisted living facilities.  When a resident

12  no longer meets the admission criteria for a facility licensed

13  under this part, arrangements for relocating the person shall

14  be made in accordance with s. 429.28(1)(k) s. 400.428(1)(k),

15  unless the facility is licensed to provide extended congregate

16  care services.

17         (4)(a)  The biennial license fee required of a facility

18  is $300 per license, with an additional fee of $50 per

19  resident based on the total licensed resident capacity of the

20  facility, except that no additional fee will be assessed for

21  beds designated for recipients of optional state

22  supplementation payments provided for in s. 409.212. The total

23  fee may not exceed $10,000, no part of which shall be returned

24  to the facility.  The agency shall adjust the per bed license

25  fee and the total licensure fee annually by not more than the

26  change in the consumer price index based on the 12 months

27  immediately preceding the increase.

28         (b)  In addition to the total fee assessed under

29  paragraph (a), the agency shall require facilities that are

30  licensed to provide extended congregate care services under

31  this part to pay an additional fee per licensed facility.  The


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 1  amount of the biennial fee shall be $400 per license, with an

 2  additional fee of $10 per resident based on the total licensed

 3  resident capacity of the facility. No part of this fee shall

 4  be returned to the facility. The agency may adjust the per bed

 5  license fee and the annual license fee once each year by not

 6  more than the average rate of inflation for the 12 months

 7  immediately preceding the increase.

 8         (c)  In addition to the total fee assessed under

 9  paragraph (a), the agency shall require facilities that are

10  licensed to provide limited nursing services under this part

11  to pay an additional fee per licensed facility.  The amount of

12  the biennial fee shall be $250 per license, with an additional

13  fee of $10 per resident based on the total licensed resident

14  capacity of the facility.  No part of this fee shall be

15  returned to the facility.  The agency may adjust the per bed

16  license fee and the biennial license fee once each year by not

17  more than the average rate of inflation for the 12 months

18  immediately preceding the increase.

19         (5)  Counties or municipalities applying for licenses

20  under this part are exempt from the payment of license fees.

21         (6)  The license shall be displayed in a conspicuous

22  place inside the facility.

23         (7)  A license shall be valid only in the possession of

24  the individual, firm, partnership, association, or corporation

25  to which it is issued and shall not be subject to sale,

26  assignment, or other transfer, voluntary or involuntary; nor

27  shall a license be valid for any premises other than that for

28  which originally issued.

29         (8)  A fee may be charged to a facility requesting a

30  duplicate license.  The fee shall not exceed the actual cost

31  of duplication and postage.


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 1         Section 32.  Section 400.4071, Florida Statutes, is

 2  renumbered as section 429.071, Florida Statutes, and amended

 3  to read:

 4         429.071 400.4071  Intergenerational respite care

 5  assisted living facility pilot program.--

 6         (1)  It is the intent of the Legislature to establish a

 7  pilot program to:

 8         (a)  Facilitate the receipt of in-home, family-based

 9  care by minors and adults with disabilities and elderly

10  persons with special needs through respite care for up to 14

11  days.

12         (b)  Prevent caregiver "burnout," in which the

13  caregiver's health declines and he or she is unable to

14  continue to provide care so that the only option for the

15  person with disabilities or special needs is to receive

16  institutional care.

17         (c)  Foster the development of intergenerational

18  respite care assisted living facilities to temporarily care

19  for minors and adults with disabilities and elderly persons

20  with special needs in the same facility and to give caregivers

21  the time they need for rejuvenation and healing.

22         (2)  The Agency for Health Care Administration shall

23  establish a 5-year pilot program, which shall license an

24  intergenerational respite care assisted living facility that

25  will provide temporary personal, respite, and custodial care

26  to minors and adults with disabilities and elderly persons

27  with special needs who do not require 24-hour nursing

28  services. The intergenerational respite care assisted living

29  facility must:

30         (a)  Meet all applicable requirements and standards

31  contained in this part III of this chapter, except that, for


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 1  purposes of this section, the term "resident" means a person

 2  of any age temporarily residing in and receiving care from the

 3  facility.

 4         (b)  Provide respite care services for minors and

 5  adults with disabilities and elderly persons with special

 6  needs for a period of at least 24 hours but not for more than

 7  14 consecutive days.

 8         (c)  Provide a facility or facilities in which minors

 9  and adults reside in distinct and separate living units.

10         (d)  Provide a facility that has a maximum of 48 beds,

11  is located in Miami-Dade County, and is operated by a

12  not-for-profit entity.

13         (3)  The agency may establish policies necessary to

14  achieve the objectives specific to the pilot program and may

15  adopt rules necessary to implement the program.

16         (4)  After 4 years, the agency shall present its report

17  on the effectiveness of the pilot program to the President of

18  the Senate and the Speaker of the House of Representatives and

19  its recommendation as to whether the Legislature should make

20  the program permanent.

21         Section 33.  Section 400.408, Florida Statutes, is

22  renumbered as section 429.08, Florida Statutes, and amended to

23  read:

24         429.08 400.408  Unlicensed facilities; referral of

25  person for residency to unlicensed facility; penalties;

26  verification of licensure status.--

27         (1)(a)  It is unlawful to own, operate, or maintain an

28  assisted living facility without obtaining a license under

29  this part.

30         (b)  Except as provided under paragraph (d), any person

31  who owns, operates, or maintains an unlicensed assisted living


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 1  facility commits a felony of the third degree, punishable as

 2  provided in s. 775.082, s. 775.083, or s. 775.084. Each day of

 3  continued operation is a separate offense.

 4         (c)  Any person found guilty of violating paragraph (a)

 5  a second or subsequent time commits a felony of the second

 6  degree, punishable as provided under s. 775.082, s. 775.083,

 7  or s. 775.084. Each day of continued operation is a separate

 8  offense.

 9         (d)  Any person who owns, operates, or maintains an

10  unlicensed assisted living facility due to a change in this

11  part or a modification in department rule within 6 months

12  after the effective date of such change and who, within 10

13  working days after receiving notification from the agency,

14  fails to cease operation or apply for a license under this

15  part commits a felony of the third degree, punishable as

16  provided in s. 775.082, s. 775.083, or s. 775.084. Each day of

17  continued operation is a separate offense.

18         (e)  Any facility that fails to cease operation after

19  agency notification may be fined for each day of noncompliance

20  pursuant to s. 429.19 s. 400.419.

21         (f)  When a licensee has an interest in more than one

22  assisted living facility, and fails to license any one of

23  these facilities, the agency may revoke the license, impose a

24  moratorium, or impose a fine pursuant to s. 429.19 s. 400.419,

25  on any or all of the licensed facilities until such time as

26  the unlicensed facility is licensed or ceases operation.

27         (g)  If the agency determines that an owner is

28  operating or maintaining an assisted living facility without

29  obtaining a license and determines that a condition exists in

30  the facility that poses a threat to the health, safety, or

31  welfare of a resident of the facility, the owner is subject to


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 1  the same actions and fines imposed against a licensed facility

 2  as specified in ss. 429.14 and 429.19 ss. 400.414 and 400.419.

 3         (h)  Any person aware of the operation of an unlicensed

 4  assisted living facility must report that facility to the

 5  agency. The agency shall provide to the department's elder

 6  information and referral providers a list, by county, of

 7  licensed assisted living facilities, to assist persons who are

 8  considering an assisted living facility placement in locating

 9  a licensed facility.

10         (i)  Each field office of the Agency for Health Care

11  Administration shall establish a local coordinating workgroup

12  which includes representatives of local law enforcement

13  agencies, state attorneys, the Medicaid Fraud Control Unit of

14  the Department of Legal Affairs, local fire authorities, the

15  Department of Children and Family Services, the district

16  long-term care ombudsman council, and the district human

17  rights advocacy committee to assist in identifying the

18  operation of unlicensed facilities and to develop and

19  implement a plan to ensure effective enforcement of state laws

20  relating to such facilities. The workgroup shall report its

21  findings, actions, and recommendations semiannually to the

22  Director of Health Facility Regulation of the agency.

23         (2)  It is unlawful to knowingly refer a person for

24  residency to an unlicensed assisted living facility; to an

25  assisted living facility the license of which is under denial

26  or has been suspended or revoked; or to an assisted living

27  facility that has a moratorium on admissions.  Any person who

28  violates this subsection commits a noncriminal violation,

29  punishable by a fine not exceeding $500 as provided in s.

30  775.083.

31  


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 1         (a)  Any health care practitioner, as defined in s.

 2  456.001, who is aware of the operation of an unlicensed

 3  facility shall report that facility to the agency. Failure to

 4  report a facility that the practitioner knows or has

 5  reasonable cause to suspect is unlicensed shall be reported to

 6  the practitioner's licensing board.

 7         (b)  Any hospital or community mental health center

 8  licensed under chapter 395 or chapter 394 which knowingly

 9  discharges a patient or client to an unlicensed facility is

10  subject to sanction by the agency.

11         (c)  Any employee of the agency or department, or the

12  Department of Children and Family Services, who knowingly

13  refers a person for residency to an unlicensed facility; to a

14  facility the license of which is under denial or has been

15  suspended or revoked; or to a facility that has a moratorium

16  on admissions is subject to disciplinary action by the agency

17  or department, or the Department of Children and Family

18  Services.

19         (d)  The employer of any person who is under contract

20  with the agency or department, or the Department of Children

21  and Family Services, and who knowingly refers a person for

22  residency to an unlicensed facility; to a facility the license

23  of which is under denial or has been suspended or revoked; or

24  to a facility that has a moratorium on admissions shall be

25  fined and required to prepare a corrective action plan

26  designed to prevent such referrals.

27         (e)  The agency shall provide the department and the

28  Department of Children and Family Services with a list of

29  licensed facilities within each county and shall update the

30  list at least quarterly.

31  


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 1         (f)  At least annually, the agency shall notify, in

 2  appropriate trade publications, physicians licensed under

 3  chapter 458 or chapter 459, hospitals licensed under chapter

 4  395, nursing home facilities licensed under part II of this

 5  chapter 400, and employees of the agency or the department, or

 6  the Department of Children and Family Services, who are

 7  responsible for referring persons for residency, that it is

 8  unlawful to knowingly refer a person for residency to an

 9  unlicensed assisted living facility and shall notify them of

10  the penalty for violating such prohibition. The department and

11  the Department of Children and Family Services shall, in turn,

12  notify service providers under contract to the respective

13  departments who have responsibility for resident referrals to

14  facilities. Further, the notice must direct each noticed

15  facility and individual to contact the appropriate agency

16  office in order to verify the licensure status of any facility

17  prior to referring any person for residency. Each notice must

18  include the name, telephone number, and mailing address of the

19  appropriate office to contact.

20         Section 34.  Section 400.411, Florida Statutes, is

21  renumbered as section 429.11, Florida Statutes, and amended to

22  read:

23         429.11 400.411  Initial application for license;

24  provisional license.--

25         (1)  Application for a license shall be made to the

26  agency on forms furnished by it and shall be accompanied by

27  the appropriate license fee.

28         (2)  The applicant may be an individual owner, a

29  corporation, a partnership, a firm, an association, or a

30  governmental entity.

31  


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 1         (3)  The application must be signed by the applicant

 2  under oath and must contain the following:

 3         (a)  The name, address, date of birth, and social

 4  security number of the applicant and the name by which the

 5  facility is to be known. If the applicant is a firm,

 6  partnership, or association, the application shall contain the

 7  name, address, date of birth, and social security number of

 8  every member thereof. If the applicant is a corporation, the

 9  application shall contain the corporation's name and address;

10  the name, address, date of birth, and social security number

11  of each of its directors and officers; and the name and

12  address of each person having at least a 5-percent ownership

13  interest in the corporation.

14         (b)  The name and address of any professional service,

15  firm, association, partnership, or corporation that is to

16  provide goods, leases, or services to the facility if a

17  5-percent or greater ownership interest in the service, firm,

18  association, partnership, or corporation is owned by a person

19  whose name must be listed on the application under paragraph

20  (a).

21         (c)  The name and address of any long-term care

22  facility with which the applicant, administrator, or financial

23  officer has been affiliated through ownership or employment

24  within 5 years of the date of this license application; and a

25  signed affidavit disclosing any financial or ownership

26  interest that the applicant, or any person listed in paragraph

27  (a), holds or has held within the last 5 years in any facility

28  licensed under this part, or in any other entity licensed by

29  this state or another state to provide health or residential

30  care, which facility or entity closed or ceased to operate as

31  a result of financial problems, or has had a receiver


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 1  appointed or a license denied, suspended or revoked, or was

 2  subject to a moratorium on admissions, or has had an

 3  injunctive proceeding initiated against it.

 4         (d)  A description and explanation of any exclusions,

 5  permanent suspensions, or terminations of the applicant from

 6  the Medicare or Medicaid programs. Proof of compliance with

 7  disclosure of ownership and control interest requirements of

 8  the Medicaid or Medicare programs shall be accepted in lieu of

 9  this submission.

10         (e)  The names and addresses of persons of whom the

11  agency may inquire as to the character, reputation, and

12  financial responsibility of the owner and, if different from

13  the applicant, the administrator and financial officer.

14         (f)  Identification of all other homes or facilities,

15  including the addresses and the license or licenses under

16  which they operate, if applicable, which are currently

17  operated by the applicant or administrator and which provide

18  housing, meals, and personal services to residents.

19         (g)  The location of the facility for which a license

20  is sought and documentation, signed by the appropriate local

21  government official, which states that the applicant has met

22  local zoning requirements.

23         (h)  The name, address, date of birth, social security

24  number, education, and experience of the administrator, if

25  different from the applicant.

26         (4)  The applicant shall furnish satisfactory proof of

27  financial ability to operate and conduct the facility in

28  accordance with the requirements of this part. A certificate

29  of authority, pursuant to chapter 651, may be provided as

30  proof of financial ability.

31  


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 1         (5)  If the applicant is a continuing care facility

 2  certified under chapter 651, a copy of the facility's

 3  certificate of authority must be provided.

 4         (6)  The applicant shall provide proof of liability

 5  insurance as defined in s. 624.605.

 6         (7)  If the applicant is a community residential home,

 7  the applicant must provide proof that it has met the

 8  requirements specified in chapter 419.

 9         (8)  The applicant must provide the agency with proof

10  of legal right to occupy the property.

11         (9)  The applicant must furnish proof that the facility

12  has received a satisfactory firesafety inspection.  The local

13  authority having jurisdiction or the State Fire Marshal must

14  conduct the inspection within 30 days after written request by

15  the applicant.

16         (10)  The applicant must furnish documentation of a

17  satisfactory sanitation inspection of the facility by the

18  county health department.

19         (11)  The applicant must furnish proof of compliance

20  with level 2 background screening as required under s. 429.174

21  s. 400.4174.

22         (12)  A provisional license may be issued to an

23  applicant making initial application for licensure or making

24  application for a change of ownership.  A provisional license

25  shall be limited in duration to a specific period of time not

26  to exceed 6 months, as determined by the agency.

27         (13)  A county or municipality may not issue an

28  occupational license that is being obtained for the purpose of

29  operating a facility regulated under this part without first

30  ascertaining that the applicant has been licensed to operate

31  such facility at the specified location or locations by the


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 1  agency.  The agency shall furnish to local agencies

 2  responsible for issuing occupational licenses sufficient

 3  instruction for making such determinations.

 4         Section 35.  Section 400.412, Florida Statutes, is

 5  renumbered as section 429.12, Florida Statutes, and amended to

 6  read:

 7         429.12 400.412  Sale or transfer of ownership of a

 8  facility.--It is the intent of the Legislature to protect the

 9  rights of the residents of an assisted living facility when

10  the facility is sold or the ownership thereof is transferred.

11  Therefore, whenever a facility is sold or the ownership

12  thereof is transferred, including leasing:

13         (1)  The transferee shall make application to the

14  agency for a new license at least 60 days before the date of

15  transfer of ownership.  The application must comply with the

16  provisions of s. 429.11 s. 400.411.

17         (2)(a)  The transferor shall notify the agency in

18  writing at least 60 days before the date of transfer of

19  ownership.

20         (b)  The new owner shall notify the residents, in

21  writing, of the transfer of ownership within 7 days of his or

22  her receipt of the license.

23         (3)  The transferor shall be responsible and liable

24  for:

25         (a)  The lawful operation of the facility and the

26  welfare of the residents domiciled in the facility until the

27  date the transferee is licensed by the agency.

28         (b)  Any and all penalties imposed against the facility

29  for violations occurring before the date of transfer of

30  ownership unless the penalty imposed is a moratorium on

31  admissions or denial of licensure.  The moratorium on


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 1  admissions or denial of licensure remains in effect after the

 2  transfer of ownership, unless the agency has approved the

 3  transferee's corrective action plan or the conditions which

 4  created the moratorium or denial have been corrected, and may

 5  be grounds for denial of license to the transferee in

 6  accordance with chapter 120.

 7         (c)  Any outstanding liability to the state, unless the

 8  transferee has agreed, as a condition of sale or transfer, to

 9  accept the outstanding liabilities and to guarantee payment

10  therefor; except that, if the transferee fails to meet these

11  obligations, the transferor shall remain liable for the

12  outstanding liability.

13         (4)  The transferor of a facility the license of which

14  is denied pending an administrative hearing shall, as a part

15  of the written transfer-of-ownership contract, advise the

16  transferee that a plan of correction must be submitted by the

17  transferee and approved by the agency at least 7 days before

18  the transfer of ownership and that failure to correct the

19  condition which resulted in the moratorium on admissions or

20  denial of licensure is grounds for denial of the transferee's

21  license.

22         (5)  The transferee must provide the agency with proof

23  of legal right to occupy the property before a license may be

24  issued.  Proof may include, but is not limited to, copies of

25  warranty deeds, or copies of lease or rental agreements,

26  contracts for deeds, quitclaim deeds, or other such

27  documentation.

28         Section 36.  Section 400.414, Florida Statutes, is

29  renumbered as section 429.14, Florida Statutes, and amended to

30  read:

31  


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 1         429.14 400.414  Denial, revocation, or suspension of

 2  license; imposition of administrative fine; grounds.--

 3         (1)  The agency may deny, revoke, or suspend any

 4  license issued under this part, or impose an administrative

 5  fine in the manner provided in chapter 120, for any of the

 6  following actions by an assisted living facility, for the

 7  actions of any person subject to level 2 background screening

 8  under s. 429.174 s. 400.4174, or for the actions of any

 9  facility employee:

10         (a)  An intentional or negligent act seriously

11  affecting the health, safety, or welfare of a resident of the

12  facility.

13         (b)  The determination by the agency that the owner

14  lacks the financial ability to provide continuing adequate

15  care to residents.

16         (c)  Misappropriation or conversion of the property of

17  a resident of the facility.

18         (d)  Failure to follow the criteria and procedures

19  provided under part I of chapter 394 relating to the

20  transportation, voluntary admission, and involuntary

21  examination of a facility resident.

22         (e)  A citation of any of the following deficiencies as

23  defined in s. 429.19 s. 400.419:

24         1.  One or more cited class I deficiencies.

25         2.  Three or more cited class II deficiencies.

26         3.  Five or more cited class III deficiencies that have

27  been cited on a single survey and have not been corrected

28  within the times specified.

29         (f)  A determination that a person subject to level 2

30  background screening under s. 429.174(1) s. 400.4174(1) does

31  not meet the screening standards of s. 435.04 or that the


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 1  facility is retaining an employee subject to level 1

 2  background screening standards under s. 429.174(2) s.

 3  400.4174(2) who does not meet the screening standards of s.

 4  435.03 and for whom exemptions from disqualification have not

 5  been provided by the agency.

 6         (g)  A determination that an employee, volunteer,

 7  administrator, or owner, or person who otherwise has access to

 8  the residents of a facility does not meet the criteria

 9  specified in s. 435.03(2), and the owner or administrator has

10  not taken action to remove the person. Exemptions from

11  disqualification may be granted as set forth in s. 435.07. No

12  administrative action may be taken against the facility if the

13  person is granted an exemption.

14         (h)  Violation of a moratorium.

15         (i)  Failure of the license applicant, the licensee

16  during relicensure, or a licensee that holds a provisional

17  license to meet the minimum license requirements of this part,

18  or related rules, at the time of license application or

19  renewal.

20         (j)  A fraudulent statement or omission of any material

21  fact on an application for a license or any other document

22  required by the agency, including the submission of a license

23  application that conceals the fact that any board member,

24  officer, or person owning 5 percent or more of the facility

25  may not meet the background screening requirements of s.

26  429.174 s. 400.4174, or that the applicant has been excluded,

27  permanently suspended, or terminated from the Medicaid or

28  Medicare programs.

29         (k)  An intentional or negligent life-threatening act

30  in violation of the uniform firesafety standards for assisted

31  living facilities or other firesafety standards that threatens


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 1  the health, safety, or welfare of a resident of a facility, as

 2  communicated to the agency by the local authority having

 3  jurisdiction or the State Fire Marshal.

 4         (l)  Exclusion, permanent suspension, or termination

 5  from the Medicare or Medicaid programs.

 6         (m)  Knowingly operating any unlicensed facility or

 7  providing without a license any service that must be licensed

 8  under this chapter or chapter 400.

 9         (n)  Any act constituting a ground upon which

10  application for a license may be denied.

11  

12  Administrative proceedings challenging agency action under

13  this subsection shall be reviewed on the basis of the facts

14  and conditions that resulted in the agency action.

15         (2)  Upon notification by the local authority having

16  jurisdiction or by the State Fire Marshal, the agency may deny

17  or revoke the license of an assisted living facility that

18  fails to correct cited fire code violations that affect or

19  threaten the health, safety, or welfare of a resident of a

20  facility.

21         (3)  The agency may deny a license to any applicant or

22  to any officer or board member of an applicant who is a firm,

23  corporation, partnership, or association or who owns 5 percent

24  or more of the facility, if the applicant, officer, or board

25  member has or had a 25-percent or greater financial or

26  ownership interest in any other facility licensed under this

27  part, or in any entity licensed by this state or another state

28  to provide health or residential care, which facility or

29  entity during the 5 years prior to the application for a

30  license closed due to financial inability to operate; had a

31  receiver appointed or a license denied, suspended, or revoked;


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 1  was subject to a moratorium on admissions; had an injunctive

 2  proceeding initiated against it; or has an outstanding fine

 3  assessed under this chapter or chapter 400.

 4         (4)  The agency shall deny or revoke the license of an

 5  assisted living facility that has two or more class I

 6  violations that are similar or identical to violations

 7  identified by the agency during a survey, inspection,

 8  monitoring visit, or complaint investigation occurring within

 9  the previous 2 years.

10         (5)  An action taken by the agency to suspend, deny, or

11  revoke a facility's license under this part, in which the

12  agency claims that the facility owner or an employee of the

13  facility has threatened the health, safety, or welfare of a

14  resident of the facility be heard by the Division of

15  Administrative Hearings of the Department of Management

16  Services within 120 days after receipt of the facility's

17  request for a hearing, unless that time limitation is waived

18  by both parties. The administrative law judge must render a

19  decision within 30 days after receipt of a proposed

20  recommended order.

21         (6)  The agency shall provide to the Division of Hotels

22  and Restaurants of the Department of Business and Professional

23  Regulation, on a monthly basis, a list of those assisted

24  living facilities that have had their licenses denied,

25  suspended, or revoked or that are involved in an appellate

26  proceeding pursuant to s. 120.60 related to the denial,

27  suspension, or revocation of a license.

28         (7)  Agency notification of a license suspension or

29  revocation, or denial of a license renewal, shall be posted

30  and visible to the public at the facility.

31  


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 1         (8)  The agency may issue a temporary license pending

 2  final disposition of a proceeding involving the suspension or

 3  revocation of an assisted living facility license.

 4         Section 37.  Section 400.415, Florida Statutes, is

 5  renumbered as section 429.15, Florida Statutes, and amended to

 6  read:

 7         429.15 400.415  Moratorium on admissions; notice.--The

 8  agency may impose an immediate moratorium on admissions to any

 9  assisted living facility if the agency determines that any

10  condition in the facility presents a threat to the health,

11  safety, or welfare of the residents in the facility.

12         (1)  A facility the license of which is denied,

13  revoked, or suspended pursuant to s. 429.14 s. 400.414 may be

14  subject to immediate imposition of a moratorium on admissions

15  to run concurrently with licensure denial, revocation, or

16  suspension.

17         (2)  When a moratorium is placed on a facility, notice

18  of the moratorium shall be posted and visible to the public at

19  the facility until the moratorium is lifted.

20         (3)  The department may by rule establish conditions

21  that constitute grounds for imposing a moratorium on a

22  facility and procedures for imposing and lifting a moratorium,

23  as necessary to administer this section.

24         Section 38.  Section 400.417, Florida Statutes, is

25  renumbered as section 429.17, Florida Statutes, and amended to

26  read:

27         429.17 400.417  Expiration of license; renewal;

28  conditional license.--

29         (1)  Biennial licenses, unless sooner suspended or

30  revoked, shall expire 2 years from the date of issuance.

31  Limited nursing, extended congregate care, and limited mental


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 1  health licenses shall expire at the same time as the

 2  facility's standard license, regardless of when issued. The

 3  agency shall notify the facility at least 120 days prior to

 4  expiration that a renewal license is necessary to continue

 5  operation. The notification must be provided electronically or

 6  by mail delivery. Ninety days prior to the expiration date, an

 7  application for renewal shall be submitted to the agency. Fees

 8  must be prorated. The failure to file a timely renewal

 9  application shall result in a late fee charged to the facility

10  in an amount equal to 50 percent of the current fee.

11         (2)  A license shall be renewed within 90 days upon the

12  timely filing of an application on forms furnished by the

13  agency and the provision of satisfactory proof of ability to

14  operate and conduct the facility in accordance with the

15  requirements of this part and adopted rules, including proof

16  that the facility has received a satisfactory firesafety

17  inspection, conducted by the local authority having

18  jurisdiction or the State Fire Marshal, within the preceding

19  12 months and an affidavit of compliance with the background

20  screening requirements of s. 429.174 s. 400.4174.

21         (3)  An applicant for renewal of a license who has

22  complied with the provisions of s. 429.11 s. 400.411 with

23  respect to proof of financial ability to operate shall not be

24  required to provide further proof unless the facility or any

25  other facility owned or operated in whole or in part by the

26  same person has demonstrated financial instability as provided

27  under s. 429.47(2) s. 400.447(2) or unless the agency suspects

28  that the facility is not financially stable as a result of the

29  annual survey or complaints from the public or a report from

30  the State Long-Term Care Ombudsman Council.  Each facility

31  must report to the agency any adverse court action concerning


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 1  the facility's financial viability, within 7 days after its

 2  occurrence.  The agency shall have access to books, records,

 3  and any other financial documents maintained by the facility

 4  to the extent necessary to determine the facility's financial

 5  stability.  A license for the operation of a facility shall

 6  not be renewed if the licensee has any outstanding fines

 7  assessed pursuant to this part which are in final order

 8  status.

 9         (4)  A licensee against whom a revocation or suspension

10  proceeding is pending at the time of license renewal may be

11  issued a conditional license effective until final disposition

12  by the agency.  If judicial relief is sought from the final

13  disposition, the court having jurisdiction may issue a

14  conditional license for the duration of the judicial

15  proceeding.

16         (5)  A conditional license may be issued to an

17  applicant for license renewal if the applicant fails to meet

18  all standards and requirements for licensure.  A conditional

19  license issued under this subsection shall be limited in

20  duration to a specific period of time not to exceed 6 months,

21  as determined by the agency, and shall be accompanied by an

22  agency-approved plan of correction.

23         (6)  When an extended care or limited nursing license

24  is requested during a facility's biennial license period, the

25  fee shall be prorated in order to permit the additional

26  license to expire at the end of the biennial license period.

27  The fee shall be calculated as of the date the additional

28  license application is received by the agency.

29         (7)  The department may by rule establish renewal

30  procedures, identify forms, and specify documentation

31  necessary to administer this section.


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 1         Section 39.  Section 400.4174, Florida Statutes, is

 2  renumbered as section 429.174, Florida Statutes, and amended

 3  to read:

 4         429.174 400.4174  Background screening; exemptions.--

 5         (1)(a)  Level 2 background screening must be conducted

 6  on each of the following persons, who shall be considered

 7  employees for the purposes of conducting screening under

 8  chapter 435:

 9         1.  The facility owner if an individual, the

10  administrator, and the financial officer.

11         2.  An officer or board member if the facility owner is

12  a firm, corporation, partnership, or association, or any

13  person owning 5 percent or more of the facility if the agency

14  has probable cause to believe that such person has been

15  convicted of any offense prohibited by s. 435.04. For each

16  officer, board member, or person owning 5 percent or more who

17  has been convicted of any such offense, the facility shall

18  submit to the agency a description and explanation of the

19  conviction at the time of license application. This

20  subparagraph does not apply to a board member of a

21  not-for-profit corporation or organization if the board member

22  serves solely in a voluntary capacity, does not regularly take

23  part in the day-to-day operational decisions of the

24  corporation or organization, receives no remuneration for his

25  or her services, and has no financial interest and has no

26  family members with a financial interest in the corporation or

27  organization, provided that the board member and facility

28  submit a statement affirming that the board member's

29  relationship to the facility satisfies the requirements of

30  this subparagraph.

31  


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 1         (b)  Proof of compliance with level 2 screening

 2  standards which has been submitted within the previous 5 years

 3  to meet any facility or professional licensure requirements of

 4  the agency or the Department of Health satisfies the

 5  requirements of this subsection, provided that such proof is

 6  accompanied, under penalty of perjury, by an affidavit of

 7  compliance with the provisions of chapter 435. Proof of

 8  compliance with the background screening requirements of the

 9  Financial Services Commission and the Office of Insurance

10  Regulation for applicants for a certificate of authority to

11  operate a continuing care retirement community under chapter

12  651, submitted within the last 5 years, satisfies the

13  Department of Law Enforcement and Federal Bureau of

14  Investigation portions of a level 2 background check.

15         (c)  The agency may grant a provisional license to a

16  facility applying for an initial license when each individual

17  required by this subsection to undergo screening has completed

18  the Department of Law Enforcement background checks, but has

19  not yet received results from the Federal Bureau of

20  Investigation, or when a request for an exemption from

21  disqualification has been submitted to the agency pursuant to

22  s. 435.07, but a response has not been issued.

23         (2)  The owner or administrator of an assisted living

24  facility must conduct level 1 background screening, as set

25  forth in chapter 435, on all employees hired on or after

26  October 1, 1998, who perform personal services as defined in

27  s. 429.02(17) s. 400.402(17). The agency may exempt an

28  individual from employment disqualification as set forth in

29  chapter 435. Such persons shall be considered as having met

30  this requirement if:

31  


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 1         (a)  Proof of compliance with level 1 screening

 2  requirements obtained to meet any professional license

 3  requirements in this state is provided and accompanied, under

 4  penalty of perjury, by a copy of the person's current

 5  professional license and an affidavit of current compliance

 6  with the background screening requirements.

 7         (b)  The person required to be screened has been

 8  continuously employed in the same type of occupation for which

 9  the person is seeking employment without a breach in service

10  which exceeds 180 days, and proof of compliance with the level

11  1 screening requirement which is no more than 2 years old is

12  provided. Proof of compliance shall be provided directly from

13  one employer or contractor to another, and not from the person

14  screened. Upon request, a copy of screening results shall be

15  provided by the employer retaining documentation of the

16  screening to the person screened.

17         (c)  The person required to be screened is employed by

18  a corporation or business entity or related corporation or

19  business entity that owns, operates, or manages more than one

20  facility or agency licensed under this chapter, and for whom a

21  level 1 screening was conducted by the corporation or business

22  entity as a condition of initial or continued employment.

23         Section 40.  Section 400.4176, Florida Statutes, is

24  renumbered as section 429.176, Florida Statutes, and amended

25  to read:

26         429.176 400.4176  Notice of change of

27  administrator.--If, during the period for which a license is

28  issued, the owner changes administrators, the owner must

29  notify the agency of the change within 10 days and provide

30  documentation within 90 days that the new administrator has

31  completed the applicable core educational requirements under


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 1  s. 429.52 s. 400.452. Background screening shall be completed

 2  on any new administrator as specified in s. 429.174 s.

 3  400.4174.

 4         Section 41.  Section 400.4178, Florida Statutes, is

 5  renumbered as section 429.178, Florida Statutes, and amended

 6  to read:

 7         429.178 400.4178  Special care for persons with

 8  Alzheimer's disease or other related disorders.--

 9         (1)  A facility which advertises that it provides

10  special care for persons with Alzheimer's disease or other

11  related disorders must meet the following standards of

12  operation:

13         (a)1.  If the facility has 17 or more residents, have

14  an awake staff member on duty at all hours of the day and

15  night; or

16         2.  If the facility has fewer than 17 residents, have

17  an awake staff member on duty at all hours of the day and

18  night or have mechanisms in place to monitor and ensure the

19  safety of the facility's residents.

20         (b)  Offer activities specifically designed for persons

21  who are cognitively impaired.

22         (c)  Have a physical environment that provides for the

23  safety and welfare of the facility's residents.

24         (d)  Employ staff who have completed the training and

25  continuing education required in subsection (2).

26         (2)(a)  An individual who is employed by a facility

27  that provides special care for residents with Alzheimer's

28  disease or other related disorders, and who has regular

29  contact with such residents, must complete up to 4 hours of

30  initial dementia-specific training developed or approved by

31  the department. The training shall be completed within 3


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 1  months after beginning employment and shall satisfy the core

 2  training requirements of s. 429.52(2)(g) s. 400.452(2)(g).

 3         (b)  A direct caregiver who is employed by a facility

 4  that provides special care for residents with Alzheimer's

 5  disease or other related disorders, and who provides direct

 6  care to such residents, must complete the required initial

 7  training and 4 additional hours of training developed or

 8  approved by the department.  The training shall be completed

 9  within 9 months after beginning employment and shall satisfy

10  the core training requirements of s. 429.52(2)(g) s.

11  400.452(2)(g).

12         (c)  An individual who is employed by a facility that

13  provides special care for residents with Alzheimer's disease

14  or other related disorders, but who only has incidental

15  contact with such residents, must be given, at a minimum,

16  general information on interacting with individuals with

17  Alzheimer's disease or other related disorders, within 3

18  months after beginning employment.

19         (3)  In addition to the training required under

20  subsection (2), a direct caregiver must participate in a

21  minimum of 4 contact hours of continuing education each

22  calendar year.  The continuing education must include one or

23  more topics included in the dementia-specific training

24  developed or approved by the department, in which the

25  caregiver has not received previous training.

26         (4)  Upon completing any training listed in subsection

27  (2), the employee or direct caregiver shall be issued a

28  certificate that includes the name of the training provider,

29  the topic covered, and the date and signature of the training

30  provider.  The certificate is evidence of completion of

31  training in the identified topic, and the employee or direct


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 1  caregiver is not required to repeat training in that topic if

 2  the employee or direct caregiver changes employment to a

 3  different facility.  The employee or direct caregiver must

 4  comply with other applicable continuing education

 5  requirements.

 6         (5)  The department, or its designee, shall approve the

 7  initial and continuing education courses and providers.

 8         (6)  The department shall keep a current list of

 9  providers who are approved to provide initial and continuing

10  education for staff of facilities that provide special care

11  for persons with Alzheimer's disease or other related

12  disorders.

13         (7)  Any facility more than 90 percent of whose

14  residents receive monthly optional supplementation payments is

15  not required to pay for the training and education programs

16  required under this section.  A facility that has one or more

17  such residents shall pay a reduced fee that is proportional to

18  the percentage of such residents in the facility.  A facility

19  that does not have any residents who receive monthly optional

20  supplementation payments must pay a reasonable fee, as

21  established by the department, for such training and education

22  programs.

23         (8)  The department shall adopt rules to establish

24  standards for trainers and training and to implement this

25  section.

26         Section 42.  Section 400.418, Florida Statutes, is

27  renumbered as section 429.18, Florida Statutes, and amended to

28  read:

29         429.18 400.418  Disposition of fees and administrative

30  fines.--

31  


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 1         (1)  Income from license fees, inspection fees, late

 2  fees, and administrative fines generated pursuant to ss.

 3  429.07, 429.08, 429.17, 429.19, and 429.31 ss. 400.407,

 4  400.408, 400.417, 400.419, and 400.431 shall be deposited in

 5  the Health Care Trust Fund administered by the agency.  Such

 6  funds shall be directed to and used by the agency for the

 7  following purposes:

 8         (a)  Up to 50 percent of the trust funds accrued each

 9  fiscal year under this part may be used to offset the expenses

10  of receivership, pursuant to s. 429.22 s. 400.422, if the

11  court determines that the income and assets of the facility

12  are insufficient to provide for adequate management and

13  operation.

14         (b)  An amount of $5,000 of the trust funds accrued

15  each year under this part shall be allocated to pay for

16  inspection-related physical and mental health examinations

17  requested by the agency pursuant to s. 429.26 s. 400.426 for

18  residents who are either recipients of supplemental security

19  income or have monthly incomes not in excess of the maximum

20  combined federal and state cash subsidies available to

21  supplemental security income recipients, as provided for in s.

22  409.212.  Such funds shall only be used where the resident is

23  ineligible for Medicaid.

24         (c)  Any trust funds accrued each year under this part

25  and not used for the purposes specified in paragraphs (a) and

26  (b) shall be used to offset the costs of the licensure

27  program, including the costs of conducting background

28  investigations, verifying information submitted, defraying the

29  costs of processing the names of applicants, and conducting

30  inspections and monitoring visits pursuant to this part.

31  


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 1         (2)  Income from fees generated pursuant to s.

 2  429.41(5) s. 400.441(5) shall be deposited in the Health Care

 3  Trust Fund and used to offset the costs of printing and

 4  postage.

 5         Section 43.  Section 400.419, Florida Statutes, is

 6  renumbered as section 429.19, Florida Statutes, and amended to

 7  read:

 8         429.19 400.419  Violations; imposition of

 9  administrative fines; grounds.--

10         (1)  The agency shall impose an administrative fine in

11  the manner provided in chapter 120 for any of the actions or

12  violations as set forth within this section by an assisted

13  living facility, for the actions of any person subject to

14  level 2 background screening under s. 429.174 s. 400.4174, for

15  the actions of any facility employee, or for an intentional or

16  negligent act seriously affecting the health, safety, or

17  welfare of a resident of the facility.

18         (2)  Each violation of this part and adopted rules

19  shall be classified according to the nature of the violation

20  and the gravity of its probable effect on facility residents.

21  The agency shall indicate the classification on the written

22  notice of the violation as follows:

23         (a)  Class "I" violations are those conditions or

24  occurrences related to the operation and maintenance of a

25  facility or to the personal care of residents which the agency

26  determines present an imminent danger to the residents or

27  guests of the facility or a substantial probability that death

28  or serious physical or emotional harm would result therefrom.

29  The condition or practice constituting a class I violation

30  shall be abated or eliminated within 24 hours, unless a fixed

31  period, as determined by the agency, is required for


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 1  correction. The agency shall impose an administrative fine for

 2  a cited class I violation in an amount not less than $5,000

 3  and not exceeding $10,000 for each violation. A fine may be

 4  levied notwithstanding the correction of the violation.

 5         (b)  Class "II" violations are those conditions or

 6  occurrences related to the operation and maintenance of a

 7  facility or to the personal care of residents which the agency

 8  determines directly threaten the physical or emotional health,

 9  safety, or security of the facility residents, other than

10  class I violations. The agency shall impose an administrative

11  fine for a cited class II violation in an amount not less than

12  $1,000 and not exceeding $5,000 for each violation. A fine

13  shall be levied notwithstanding the correction of the

14  violation.

15         (c)  Class "III" violations are those conditions or

16  occurrences related to the operation and maintenance of a

17  facility or to the personal care of residents which the agency

18  determines indirectly or potentially threaten the physical or

19  emotional health, safety, or security of facility residents,

20  other than class I or class II violations. The agency shall

21  impose an administrative fine for a cited class III violation

22  in an amount not less than $500 and not exceeding $1,000 for

23  each violation. A citation for a class III violation must

24  specify the time within which the violation is required to be

25  corrected. If a class III violation is corrected within the

26  time specified, no fine may be imposed, unless it is a

27  repeated offense.

28         (d)  Class "IV" violations are those conditions or

29  occurrences related to the operation and maintenance of a

30  building or to required reports, forms, or documents that do

31  not have the potential of negatively affecting residents.


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 1  These violations are of a type that the agency determines do

 2  not threaten the health, safety, or security of residents of

 3  the facility. The agency shall impose an administrative fine

 4  for a cited class IV violation in an amount not less than $100

 5  and not exceeding $200 for each violation. A citation for a

 6  class IV violation must specify the time within which the

 7  violation is required to be corrected. If a class IV violation

 8  is corrected within the time specified, no fine shall be

 9  imposed. Any class IV violation that is corrected during the

10  time an agency survey is being conducted will be identified as

11  an agency finding and not as a violation.

12         (3)  In determining if a penalty is to be imposed and

13  in fixing the amount of the fine, the agency shall consider

14  the following factors:

15         (a)  The gravity of the violation, including the

16  probability that death or serious physical or emotional harm

17  to a resident will result or has resulted, the severity of the

18  action or potential harm, and the extent to which the

19  provisions of the applicable laws or rules were violated.

20         (b)  Actions taken by the owner or administrator to

21  correct violations.

22         (c)  Any previous violations.

23         (d)  The financial benefit to the facility of

24  committing or continuing the violation.

25         (e)  The licensed capacity of the facility.

26         (4)  Each day of continuing violation after the date

27  fixed for termination of the violation, as ordered by the

28  agency, constitutes an additional, separate, and distinct

29  violation.

30         (5)  Any action taken to correct a violation shall be

31  documented in writing by the owner or administrator of the


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 1  facility and verified through followup visits by agency

 2  personnel. The agency may impose a fine and, in the case of an

 3  owner-operated facility, revoke or deny a facility's license

 4  when a facility administrator fraudulently misrepresents

 5  action taken to correct a violation.

 6         (6)  For fines that are upheld following administrative

 7  or judicial review, the violator shall pay the fine, plus

 8  interest at the rate as specified in s. 55.03, for each day

 9  beyond the date set by the agency for payment of the fine.

10         (7)  Any unlicensed facility that continues to operate

11  after agency notification is subject to a $1,000 fine per day.

12         (8)  Any licensed facility whose owner or administrator

13  concurrently operates an unlicensed facility shall be subject

14  to an administrative fine of $5,000 per day.

15         (9)  Any facility whose owner fails to apply for a

16  change-of-ownership license in accordance with s. 429.12 s.

17  400.412 and operates the facility under the new ownership is

18  subject to a fine of $5,000.

19         (10)  In addition to any administrative fines imposed,

20  the agency may assess a survey fee, equal to the lesser of one

21  half of the facility's biennial license and bed fee or $500,

22  to cover the cost of conducting initial complaint

23  investigations that result in the finding of a violation that

24  was the subject of the complaint or monitoring visits

25  conducted under s. 429.28(3)(c) s. 400.428(3)(c) to verify the

26  correction of the violations.

27         (11)  The agency, as an alternative to or in

28  conjunction with an administrative action against a facility

29  for violations of this part and adopted rules, shall make a

30  reasonable attempt to discuss each violation and recommended

31  corrective action with the owner or administrator of the


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 1  facility, prior to written notification. The agency, instead

 2  of fixing a period within which the facility shall enter into

 3  compliance with standards, may request a plan of corrective

 4  action from the facility which demonstrates a good faith

 5  effort to remedy each violation by a specific date, subject to

 6  the approval of the agency.

 7         (12)  Administrative fines paid by any facility under

 8  this section shall be deposited into the Health Care Trust

 9  Fund and expended as provided in s. 429.18 s. 400.418.

10         (13)  The agency shall develop and disseminate an

11  annual list of all facilities sanctioned or fined $5,000 or

12  more for violations of state standards, the number and class

13  of violations involved, the penalties imposed, and the current

14  status of cases. The list shall be disseminated, at no charge,

15  to the Department of Elderly Affairs, the Department of

16  Health, the Department of Children and Family Services, the

17  area agencies on aging, the Florida Statewide Advocacy

18  Council, and the state and local ombudsman councils. The

19  Department of Children and Family Services shall disseminate

20  the list to service providers under contract to the department

21  who are responsible for referring persons to a facility for

22  residency. The agency may charge a fee commensurate with the

23  cost of printing and postage to other interested parties

24  requesting a copy of this list.

25         Section 44.  Section 400.42, Florida Statutes, is

26  renumbered as section 429.20, Florida Statutes, and amended to

27  read:

28         429.20 400.42  Certain solicitation prohibited;

29  third-party supplementation.--

30         (1)  A person may not, in connection with the

31  solicitation of contributions by or on behalf of an assisted


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 1  living facility or facilities, misrepresent or mislead any

 2  person, by any manner, means, practice, or device whatsoever,

 3  to believe that the receipts of such solicitation will be used

 4  for charitable purposes, if that is not the fact.

 5         (2)  Solicitation of contributions of any kind in a

 6  threatening, coercive, or unduly forceful manner by or on

 7  behalf of an assisted living facility or facilities by any

 8  agent, employee, owner, or representative of any assisted

 9  living facility or facilities is grounds for denial,

10  suspension, or revocation of the license of the assisted

11  living facility or facilities by or on behalf of which such

12  contributions were solicited.

13         (3)  The admission or maintenance of assisted living

14  facility residents whose care is supported, in whole or in

15  part, by state funds may not be conditioned upon the receipt

16  of any manner of contribution or donation from any person. The

17  solicitation or receipt of contributions in violation of this

18  subsection is grounds for denial, suspension, or revocation of

19  license, as provided in s. 429.14 s. 400.414, for any assisted

20  living facility by or on behalf of which such contributions

21  were solicited.

22         (4)  An assisted living facility may accept additional

23  supplementation from third parties on behalf of residents

24  receiving optional state supplementation in accordance with s.

25  409.212.

26         Section 45.  Section 400.422, Florida Statutes, is

27  renumbered as section 429.22, Florida Statutes, and amended to

28  read:

29         429.22 400.422  Receivership proceedings.--

30         (1)  As an alternative to or in conjunction with an

31  injunctive proceeding, the agency may petition a court of


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 1  competent jurisdiction for the appointment of a receiver, if

 2  suitable alternate placements are not available, when any of

 3  the following conditions exist:

 4         (a)  The facility is operating without a license and

 5  refuses to make application for a license as required by ss.

 6  429.07 and 429.08 ss. 400.407 and 400.408.

 7         (b)  The facility is closing or has informed the agency

 8  that it intends to close and adequate arrangements have not

 9  been made for relocation of the residents within 7 days,

10  exclusive of weekends and holidays, of the closing of the

11  facility.

12         (c)  The agency determines there exist in the facility

13  conditions which present an imminent danger to the health,

14  safety, or welfare of the residents of the facility or a

15  substantial probability that death or serious physical harm

16  would result therefrom.

17         (d)  The facility cannot meet its financial obligation

18  for providing food, shelter, care, and utilities.

19         (2)  Petitions for receivership shall take precedence

20  over other court business unless the court determines that

21  some other pending proceeding, having similar statutory

22  precedence, shall have priority.  A hearing shall be conducted

23  within 5 days of the filing of the petition, at which time all

24  interested parties shall have the opportunity to present

25  evidence pertaining to the petition.  The agency shall notify,

26  by certified mail, the owner or administrator of the facility

27  named in the petition and the facility resident or, if

28  applicable, the resident's representative or designee, or the

29  resident's surrogate, guardian, or attorney in fact, of its

30  filing, the substance of the violation, and the date and place

31  set for the hearing.  The court shall grant the petition only


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 1  upon finding that the health, safety, or welfare of facility

 2  residents would be threatened if a condition existing at the

 3  time the petition was filed is permitted to continue.  A

 4  receiver shall not be appointed ex parte unless the court

 5  determines that one or more of the conditions in subsection

 6  (1) exist; that the facility owner or administrator cannot be

 7  found; that all reasonable means of locating the owner or

 8  administrator and notifying him or her of the petition and

 9  hearing have been exhausted; or that the owner or

10  administrator after notification of the hearing chooses not to

11  attend.  After such findings, the court may appoint any

12  qualified person as a receiver, except it may not appoint any

13  owner or affiliate of the facility which is in receivership.

14  The receiver may be selected from a list of persons qualified

15  to act as receivers developed by the agency and presented to

16  the court with each petition for receivership.  Under no

17  circumstances may the agency or designated agency employee be

18  appointed as a receiver for more than 60 days; however, the

19  receiver may petition the court, one time only, for a 30-day

20  extension.  The court shall grant the extension upon a showing

21  of good cause.

22         (3)  The receiver must make provisions for the

23  continued health, safety, and welfare of all residents of the

24  facility and:

25         (a)  Shall exercise those powers and perform those

26  duties set out by the court.

27         (b)  Shall operate the facility in such a manner as to

28  assure safety and adequate health care for the residents.

29         (c)  Shall take such action as is reasonably necessary

30  to protect or conserve the assets or property of the facility

31  for which the receiver is appointed, or the proceeds from any


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 1  transfer thereof, and may use them only in the performance of

 2  the powers and duties set forth in this section and by order

 3  of the court.

 4         (d)  May use the building, fixtures, furnishings, and

 5  any accompanying consumable goods in the provision of care and

 6  services to residents and to any other persons receiving

 7  services from the facility at the time the petition for

 8  receivership was filed.  The receiver shall collect payments

 9  for all goods and services provided to residents or others

10  during the period of the receivership at the same rate of

11  payment charged by the owners at the time the petition for

12  receivership was filed, or at a fair and reasonable rate

13  otherwise approved by the court.

14         (e)  May correct or eliminate any deficiency in the

15  structure or furnishings of the facility which endangers the

16  safety or health of residents while they remain in the

17  facility, if the total cost of correction does not exceed

18  $10,000.  The court may order expenditures for this purpose in

19  excess of $10,000 on application from the receiver after

20  notice to the owner and a hearing.

21         (f)  May let contracts and hire agents and employees to

22  carry out the powers and duties of the receiver.

23         (g)  Shall honor all leases, mortgages, and secured

24  transactions governing the building in which the facility is

25  located and all goods and fixtures in the building of which

26  the receiver has taken possession, but only to the extent of

27  payments which, in the case of a rental agreement, are for the

28  use of the property during the period of the receivership, or

29  which, in the case of a purchase agreement, become due during

30  the period of the receivership.

31  


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 1         (h)  Shall have full power to direct and manage and to

 2  discharge employees of the facility, subject to any contract

 3  rights they may have.  The receiver shall pay employees at the

 4  rate of compensation, including benefits, approved by the

 5  court.  A receivership does not relieve the owner of any

 6  obligation to employees made prior to the appointment of a

 7  receiver and not carried out by the receiver.

 8         (i)  Shall be entitled to and take possession of all

 9  property or assets of residents which are in the possession of

10  a facility or its owner. The receiver shall preserve all

11  property, assets, and records of residents of which the

12  receiver takes possession and shall provide for the prompt

13  transfer of the property, assets, and records to the new

14  placement of any transferred resident.  An inventory list

15  certified by the owner and receiver shall be made immediately

16  at the time the receiver takes possession of the facility.

17         (4)(a)  A person who is served with notice of an order

18  of the court appointing a receiver and of the receiver's name

19  and address shall be liable to pay the receiver for any goods

20  or services provided by the receiver after the date of the

21  order if the person would have been liable for the goods or

22  services as supplied by the owner.  The receiver shall give a

23  receipt for each payment and shall keep a copy of each receipt

24  on file.  The receiver shall deposit accounts received in a

25  separate account and shall use this account for all

26  disbursements.

27         (b)  The receiver may bring an action to enforce the

28  liability created by paragraph (a).

29         (c)  A payment to the receiver of any sum owing to the

30  facility or its owner shall discharge any obligation to the

31  facility to the extent of the payment.


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 1         (5)(a)  A receiver may petition the court that he or

 2  she not be required to honor any lease, mortgage, secured

 3  transaction, or other wholly or partially executory contract

 4  entered into by the owner of the facility if the rent, price,

 5  or rate of interest required to be paid under the agreement

 6  was substantially in excess of a reasonable rent, price, or

 7  rate of interest at the time the contract was entered into, or

 8  if any material provision of the agreement was unreasonable,

 9  when compared to contracts negotiated under similar

10  conditions.  Any relief in this form provided by the court

11  shall be limited to the life of the receivership, unless

12  otherwise determined by the court.

13         (b)  If the receiver is in possession of real estate or

14  goods subject to a lease, mortgage, or security interest which

15  the receiver has obtained a court order to avoid under

16  paragraph (a), and if the real estate or goods are necessary

17  for the continued operation of the facility under this

18  section, the receiver may apply to the court to set a

19  reasonable rental, price, or rate of interest to be paid by

20  the receiver during the duration of the receivership. The

21  court shall hold a hearing on the application within 15 days.

22  The receiver shall send notice of the application to any known

23  persons who own the property involved at least 10 days prior

24  to the hearing. Payment by the receiver of the amount

25  determined by the court to be reasonable is a defense to any

26  action against the receiver for payment or for possession of

27  the goods or real estate subject to the lease, security

28  interest, or mortgage involved by any person who received such

29  notice, but the payment does not relieve the owner of the

30  facility of any liability for the difference between the

31  


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 1  amount paid by the receiver and the amount due under the

 2  original lease, security interest, or mortgage involved.

 3         (6)  The court shall set the compensation of the

 4  receiver, which will be considered a necessary expense of a

 5  receivership.

 6         (7)  A receiver may be held liable in a personal

 7  capacity only for the receiver's own gross negligence,

 8  intentional acts, or breach of fiduciary duty.

 9         (8)  The court may require a receiver to post a bond.

10         (9)  The court may direct the agency to allocate funds

11  from the Health Care Trust Fund to the receiver, subject to

12  the provisions of s. 429.18(1) s. 400.418(1).

13         (10)  The court may terminate a receivership when:

14         (a)  The court determines that the receivership is no

15  longer necessary because the conditions which gave rise to the

16  receivership no longer exist or the agency grants the facility

17  a new license; or

18         (b)  All of the residents in the facility have been

19  transferred or discharged.

20         (11)  Within 30 days after termination, the receiver

21  shall give the court a complete accounting of all property of

22  which the receiver has taken possession, of all funds

23  collected, and of the expenses of the receivership.

24         (12)  Nothing in this section shall be deemed to

25  relieve any owner, administrator, or employee of a facility

26  placed in receivership of any civil or criminal liability

27  incurred, or any duty imposed by law, by reason of acts or

28  omissions of the owner, administrator, or employee prior to

29  the appointment of a receiver; nor shall anything contained in

30  this section be construed to suspend during the receivership

31  any obligation of the owner, administrator, or employee for


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 1  payment of taxes or other operating and maintenance expenses

 2  of the facility or of the owner, administrator, employee, or

 3  any other person for the payment of mortgages or liens.  The

 4  owner shall retain the right to sell or mortgage any facility

 5  under receivership, subject to approval of the court which

 6  ordered the receivership.

 7         Section 46.  Section 400.424, Florida Statutes, is

 8  renumbered as section 429.24, Florida Statutes, and amended to

 9  read:

10         429.24 400.424  Contracts.--

11         (1)  The presence of each resident in a facility shall

12  be covered by a contract, executed at the time of admission or

13  prior thereto, between the licensee and the resident or his or

14  her designee or legal representative. Each party to the

15  contract shall be provided with a duplicate original thereof,

16  and the licensee shall keep on file in the facility all such

17  contracts.  The licensee may not destroy or otherwise dispose

18  of any such contract until 5 years after its expiration.

19         (2)  Each contract must contain express provisions

20  specifically setting forth the services and accommodations to

21  be provided by the facility; the rates or charges; provision

22  for at least 30 days' written notice of a rate increase; the

23  rights, duties, and obligations of the residents, other than

24  those specified in s. 429.28 s. 400.428; and other matters

25  that the parties deem appropriate. Whenever money is deposited

26  or advanced by a resident in a contract as security for

27  performance of the contract agreement or as advance rent for

28  other than the next immediate rental period:

29         (a)  Such funds shall be deposited in a banking

30  institution in this state that is located, if possible, in the

31  same community in which the facility is located; shall be kept


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 1  separate from the funds and property of the facility; may not

 2  be represented as part of the assets of the facility on

 3  financial statements; and shall be used, or otherwise

 4  expended, only for the account of the resident.

 5         (b)  The licensee shall, within 30 days of receipt of

 6  advance rent or a security deposit, notify the resident or

 7  residents in writing of the manner in which the licensee is

 8  holding the advance rent or security deposit and state the

 9  name and address of the depository where the moneys are being

10  held. The licensee shall notify residents of the facility's

11  policy on advance deposits.

12         (3)(a)  The contract shall include a refund policy to

13  be implemented at the time of a resident's transfer,

14  discharge, or death.  The refund policy shall provide that the

15  resident or responsible party is entitled to a prorated refund

16  based on the daily rate for any unused portion of payment

17  beyond the termination date after all charges, including the

18  cost of damages to the residential unit resulting from

19  circumstances other than normal use, have been paid to the

20  licensee.  For the purpose of this paragraph, the termination

21  date shall be the date the unit is vacated by the resident and

22  cleared of all personal belongings.  If the amount of

23  belongings does not preclude renting the unit, the facility

24  may clear the unit and charge the resident or his or her

25  estate for moving and storing the items at a rate equal to the

26  actual cost to the facility, not to exceed 20 percent of the

27  regular rate for the unit, provided that 14 days' advance

28  written notification is given.  If the resident's possessions

29  are not claimed within 45 days after notification, the

30  facility may dispose of them.  The contract shall also specify

31  any other conditions under which claims will be made against


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 1  the refund due the resident.  Except in the case of death or a

 2  discharge due to medical reasons, the refunds shall be

 3  computed in accordance with the notice of relocation

 4  requirements specified in the contract.  However, a resident

 5  may not be required to provide the licensee with more than 30

 6  days' notice of termination.  If after a contract is

 7  terminated, the facility intends to make a claim against a

 8  refund due the resident, the facility shall notify the

 9  resident or responsible party in writing of the claim and

10  shall provide said party with a reasonable time period of no

11  less than 14 calendar days to respond.  The facility shall

12  provide a refund to the resident or responsible party within

13  45 days after the transfer, discharge, or death of the

14  resident. The agency shall impose a fine upon a facility that

15  fails to comply with the refund provisions of the paragraph,

16  which fine shall be equal to three times the amount due to the

17  resident. One-half of the fine shall be remitted to the

18  resident or his or her estate, and the other half to the

19  Health Care Trust Fund to be used for the purpose specified in

20  s. 429.18 s. 400.418.

21         (b)  If a licensee agrees to reserve a bed for a

22  resident who is admitted to a medical facility, including, but

23  not limited to, a nursing home, health care facility, or

24  psychiatric facility, the resident or his or her responsible

25  party shall notify the licensee of any change in status that

26  would prevent the resident from returning to the facility.

27  Until such notice is received, the agreed-upon daily rate may

28  be charged by the licensee.

29         (c)  The purpose of any advance payment and a refund

30  policy for such payment, including any advance payment for

31  


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 1  housing, meals, or personal services, shall be covered in the

 2  contract.

 3         (4)  The contract shall state whether or not the

 4  facility is affiliated with any religious organization and, if

 5  so, which organization and its general responsibility to the

 6  facility.

 7         (5)  Neither the contract nor any provision thereof

 8  relieves any licensee of any requirement or obligation imposed

 9  upon it by this part or rules adopted under this part.

10         (6)  In lieu of the provisions of this section,

11  facilities certified under chapter 651 shall comply with the

12  requirements of s. 651.055.

13         (7)  Notwithstanding the provisions of this section,

14  facilities which consist of 60 or more apartments may require

15  refund policies and termination notices in accordance with the

16  provisions of part II of chapter 83, provided that the lease

17  is terminated automatically without financial penalty in the

18  event of a resident's death or relocation due to psychiatric

19  hospitalization or to medical reasons which necessitate

20  services or care beyond which the facility is licensed to

21  provide.  The date of termination in such instances shall be

22  the date the unit is fully vacated.  A lease may be

23  substituted for the contract if it meets the disclosure

24  requirements of this section.  For the purpose of this

25  section, the term "apartment" means a room or set of rooms

26  with a kitchen or kitchenette and lavatory located within one

27  or more buildings containing other similar or like residential

28  units.

29         (8)  The department may by rule clarify terms,

30  establish procedures, clarify refund policies and contract

31  


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 1  provisions, and specify documentation as necessary to

 2  administer this section.

 3         Section 47.  Section 400.4255, Florida Statutes, is

 4  renumbered as section 429.255, Florida Statutes, and are

 5  amended to read:

 6         429.255 400.4255  Use of personnel; emergency care.--

 7         (1)(a)  Persons under contract to the facility,

 8  facility staff, or volunteers, who are licensed according to

 9  part I of chapter 464, or those persons exempt under s.

10  464.022(1), and others as defined by rule, may administer

11  medications to residents, take residents' vital signs, manage

12  individual weekly pill organizers for residents who

13  self-administer medication, give prepackaged enemas ordered by

14  a physician, observe residents, document observations on the

15  appropriate resident's record, report observations to the

16  resident's physician, and contract or allow residents or a

17  resident's representative, designee, surrogate, guardian, or

18  attorney in fact to contract with a third party, provided

19  residents meet the criteria for appropriate placement as

20  defined in s. 429.26 s. 400.426.  Nursing assistants certified

21  pursuant to part II of chapter 464 may take residents' vital

22  signs as directed by a licensed nurse or physician.

23         (b)  All staff in facilities licensed under this part

24  shall exercise their professional responsibility to observe

25  residents, to document observations on the appropriate

26  resident's record, and to report the observations to the

27  resident's physician.  However, the owner or administrator of

28  the facility shall be responsible for determining that the

29  resident receiving services is appropriate for residence in

30  the facility.

31  


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 1         (c)  In an emergency situation, licensed personnel may

 2  carry out their professional duties pursuant to part I of

 3  chapter 464 until emergency medical personnel assume

 4  responsibility for care.

 5         (2)  In facilities licensed to provide extended

 6  congregate care, persons under contract to the facility,

 7  facility staff, or volunteers, who are licensed according to

 8  part I of chapter 464, or those persons exempt under s.

 9  464.022(1), or those persons certified as nursing assistants

10  pursuant to part II of chapter 464, may also perform all

11  duties within the scope of their license or certification, as

12  approved by the facility administrator and pursuant to this

13  part.

14         (3)  Facility staff may withhold or withdraw

15  cardiopulmonary resuscitation if presented with an order not

16  to resuscitate executed pursuant to s. 401.45. The department

17  shall adopt rules providing for the implementation of such

18  orders. Facility staff and facilities shall not be subject to

19  criminal prosecution or civil liability, nor be considered to

20  have engaged in negligent or unprofessional conduct, for

21  withholding or withdrawing cardiopulmonary resuscitation

22  pursuant to such an order and rules adopted by the department.

23  The absence of an order to resuscitate executed pursuant to s.

24  401.45 does not preclude a physician from withholding or

25  withdrawing cardiopulmonary resuscitation as otherwise

26  permitted by law.

27         Section 48.  Section 400.4256, Florida Statutes, is

28  renumbered as section 429.256, Florida Statutes, and is

29  amended to read:

30         429.256 400.4256  Assistance with self-administration

31  of medication.--


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 1         (1)  For the purposes of this section, the term:

 2         (a)  "Informed consent" means advising the resident, or

 3  the resident's surrogate, guardian, or attorney in fact, that

 4  an assisted living facility is not required to have a licensed

 5  nurse on staff, that the resident may be receiving assistance

 6  with self-administration of medication from an unlicensed

 7  person, and that such assistance, if provided by an unlicensed

 8  person, will or will not be overseen by a licensed nurse.

 9         (b)  "Unlicensed person" means an individual not

10  currently licensed to practice nursing or medicine who is

11  employed by or under contract to an assisted living facility

12  and who has received training with respect to assisting with

13  the self-administration of medication in an assisted living

14  facility as provided under s. 429.52 s. 400.452 prior to

15  providing such assistance as described in this section.

16         (2)  Residents who are capable of self-administering

17  their own medications without assistance shall be encouraged

18  and allowed to do so. However, an unlicensed person may,

19  consistent with a dispensed prescription's label or the

20  package directions of an over-the-counter medication, assist a

21  resident whose condition is medically stable with the

22  self-administration of routine, regularly scheduled

23  medications that are intended to be self-administered.

24  Assistance with self-medication by an unlicensed person may

25  occur only upon a documented request by, and the written

26  informed consent of, a resident or the resident's surrogate,

27  guardian, or attorney in fact. For the purposes of this

28  section, self-administered medications include both legend and

29  over-the-counter oral dosage forms, topical dosage forms and

30  topical ophthalmic, otic, and nasal dosage forms including

31  solutions, suspensions, sprays, and inhalers.


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 1         (3)  Assistance with self-administration of medication

 2  includes:

 3         (a)  Taking the medication, in its previously

 4  dispensed, properly labeled container, from where it is

 5  stored, and bringing it to the resident.

 6         (b)  In the presence of the resident, reading the

 7  label, opening the container, removing a prescribed amount of

 8  medication from the container, and closing the container.

 9         (c)  Placing an oral dosage in the resident's hand or

10  placing the dosage in another container and helping the

11  resident by lifting the container to his or her mouth.

12         (d)  Applying topical medications.

13         (e)  Returning the medication container to proper

14  storage.

15         (f)  Keeping a record of when a resident receives

16  assistance with self-administration under this section.

17         (4)  Assistance with self-administration does not

18  include:

19         (a)  Mixing, compounding, converting, or calculating

20  medication doses, except for measuring a prescribed amount of

21  liquid medication or breaking a scored tablet or crushing a

22  tablet as prescribed.

23         (b)  The preparation of syringes for injection or the

24  administration of medications by any injectable route.

25         (c)  Administration of medications through intermittent

26  positive pressure breathing machines or a nebulizer.

27         (d)  Administration of medications by way of a tube

28  inserted in a cavity of the body.

29         (e)  Administration of parenteral preparations.

30         (f)  Irrigations or debriding agents used in the

31  treatment of a skin condition.


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 1         (g)  Rectal, urethral, or vaginal preparations.

 2         (h)  Medications ordered by the physician or health

 3  care professional with prescriptive authority to be given "as

 4  needed," unless the order is written with specific parameters

 5  that preclude independent judgment on the part of the

 6  unlicensed person, and at the request of a competent resident.

 7         (i)  Medications for which the time of administration,

 8  the amount, the strength of dosage, the method of

 9  administration, or the reason for administration requires

10  judgment or discretion on the part of the unlicensed person.

11         (5)  Assistance with the self-administration of

12  medication by an unlicensed person as described in this

13  section shall not be considered administration as defined in

14  s. 465.003.

15         (6)  The department may by rule establish facility

16  procedures and interpret terms as necessary to implement this

17  section.

18         Section 49.  Section 400.426, Florida Statutes, is

19  renumbered as section 429.26, Florida Statutes, and amended to

20  read:

21         429.26 400.426  Appropriateness of placements;

22  examinations of residents.--

23         (1)  The owner or administrator of a facility is

24  responsible for determining the appropriateness of admission

25  of an individual to the facility and for determining the

26  continued appropriateness of residence of an individual in the

27  facility.  A determination shall be based upon an assessment

28  of the strengths, needs, and preferences of the resident, the

29  care and services offered or arranged for by the facility in

30  accordance with facility policy, and any limitations in law or

31  rule related to admission criteria or continued residency for


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 1  the type of license held by the facility under this part.  A

 2  resident may not be moved from one facility to another without

 3  consultation with and agreement from the resident or, if

 4  applicable, the resident's representative or designee or the

 5  resident's family, guardian, surrogate, or attorney in fact.

 6  In the case of a resident who has been placed by the

 7  department or the Department of Children and Family Services,

 8  the administrator must notify the appropriate contact person

 9  in the applicable department.

10         (2)  A physician, physician assistant, or nurse

11  practitioner who is employed by an assisted living facility to

12  provide an initial examination for admission purposes may not

13  have financial interest in the facility.

14         (3)  Persons licensed under part I of chapter 464 who

15  are employed by or under contract with a facility shall, on a

16  routine basis or at least monthly, perform a nursing

17  assessment of the residents for whom they are providing

18  nursing services ordered by a physician, except administration

19  of medication, and shall document such assessment, including

20  any substantial changes in a resident's status which may

21  necessitate relocation to a nursing home, hospital, or

22  specialized health care facility.  Such records shall be

23  maintained in the facility for inspection by the agency and

24  shall be forwarded to the resident's case manager, if

25  applicable.

26         (4)  If possible, each resident shall have been

27  examined by a licensed physician, a licensed physician

28  assistant, or a licensed nurse practitioner within 60 days

29  before admission to the facility.  The signed and completed

30  medical examination report shall be submitted to the owner or

31  administrator of the facility who shall use the information


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 1  contained therein to assist in the determination of the

 2  appropriateness of the resident's admission and continued stay

 3  in the facility.  The medical examination report shall become

 4  a permanent part of the record of the resident at the facility

 5  and shall be made available to the agency during inspection or

 6  upon request.  An assessment that has been completed through

 7  the Comprehensive Assessment and Review for Long-Term Care

 8  Services (CARES) Program fulfills the requirements for a

 9  medical examination under this subsection and s.

10  429.07(3)(b)6. s. 400.407(3)(b)6.

11         (5)  Except as provided in s. 429.07 s. 400.407, if a

12  medical examination has not been completed within 60 days

13  before the admission of the resident to the facility, a

14  licensed physician, licensed physician assistant, or licensed

15  nurse practitioner shall examine the resident and complete a

16  medical examination form provided by the agency within 30 days

17  following the admission to the facility to enable the facility

18  owner or administrator to determine the appropriateness of the

19  admission. The medical examination form shall become a

20  permanent part of the record of the resident at the facility

21  and shall be made available to the agency during inspection by

22  the agency or upon request.

23         (6)  Any resident accepted in a facility and placed by

24  the department or the Department of Children and Family

25  Services shall have been examined by medical personnel within

26  30 days before placement in the facility. The examination

27  shall include an assessment of the appropriateness of

28  placement in a facility.  The findings of this examination

29  shall be recorded on the examination form provided by the

30  agency. The completed form shall accompany the resident and

31  shall be submitted to the facility owner or administrator.


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 1  Additionally, in the case of a mental health resident, the

 2  Department of Children and Family Services must provide

 3  documentation that the individual has been assessed by a

 4  psychiatrist, clinical psychologist, clinical social worker,

 5  or psychiatric nurse, or an individual who is supervised by

 6  one of these professionals, and determined to be appropriate

 7  to reside in an assisted living facility. The documentation

 8  must be in the facility within 30 days after the mental health

 9  resident has been admitted to the facility. An evaluation

10  completed upon discharge from a state mental hospital meets

11  the requirements of this subsection related to appropriateness

12  for placement as a mental health resident providing it was

13  completed within 90 days prior to admission to the facility.

14  The applicable department shall provide to the facility

15  administrator any information about the resident that would

16  help the administrator meet his or her responsibilities under

17  subsection (1).  Further, department personnel shall explain

18  to the facility operator any special needs of the resident and

19  advise the operator whom to call should problems arise. The

20  applicable department shall advise and assist the facility

21  administrator where the special needs of residents who are

22  recipients of optional state supplementation require such

23  assistance.

24         (7)  The facility must notify a licensed physician when

25  a resident exhibits signs of dementia or cognitive impairment

26  or has a change of condition in order to rule out the presence

27  of an underlying physiological condition that may be

28  contributing to such dementia or impairment. The notification

29  must occur within 30 days after the acknowledgment of such

30  signs by facility staff. If an underlying condition is

31  determined to exist, the facility shall arrange, with the


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 1  appropriate health care provider, the necessary care and

 2  services to treat the condition.

 3         (8)  The Department of Children and Family Services may

 4  require an examination for supplemental security income and

 5  optional state supplementation recipients residing in

 6  facilities at any time and shall provide the examination

 7  whenever a resident's condition requires it.  Any facility

 8  administrator; personnel of the agency, the department, or the

 9  Department of Children and Family Services; or long-term care

10  ombudsman council member who believes a resident needs to be

11  evaluated shall notify the resident's case manager, who shall

12  take appropriate action.  A report of the examination findings

13  shall be provided to the resident's case manager and the

14  facility administrator to help the administrator meet his or

15  her responsibilities under subsection (1).

16         (9)  If, at any time after admission to a facility, a

17  resident appears to need care beyond that which the facility

18  is licensed to provide, the agency shall require the resident

19  to be physically examined by a licensed physician, physician

20  assistant, or licensed nurse practitioner. This examination

21  shall, to the extent possible, be performed by the resident's

22  preferred physician or nurse practitioner and shall be paid

23  for by the resident with personal funds, except as provided in

24  s. 429.18(1)(b) s. 400.418(1)(b). Following this examination,

25  the examining physician, physician assistant, or licensed

26  nurse practitioner shall complete and sign a medical form

27  provided by the agency. The completed medical form shall be

28  submitted to the agency within 30 days after the date the

29  facility owner or administrator is notified by the agency that

30  the physical examination is required. After consultation with

31  the physician, physician assistant, or licensed nurse


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 1  practitioner who performed the examination, a medical review

 2  team designated by the agency shall then determine whether the

 3  resident is appropriately residing in the facility.  The

 4  medical review team shall base its decision on a comprehensive

 5  review of the resident's physical and functional status,

 6  including the resident's preferences, and not on an isolated

 7  health-related problem.  In the case of a mental health

 8  resident, if the resident appears to have needs in addition to

 9  those identified in the community living support plan, the

10  agency may require an evaluation by a mental health

11  professional, as determined by the Department of Children and

12  Family Services.  A facility may not be required to retain a

13  resident who requires more services or care than the facility

14  is able to provide in accordance with its policies and

15  criteria for admission and continued residency. Members of the

16  medical review team making the final determination may not

17  include the agency personnel who initially questioned the

18  appropriateness of a resident's placement. Such determination

19  is final and binding upon the facility and the resident. Any

20  resident who is determined by the medical review team to be

21  inappropriately residing in a facility shall be given 30 days'

22  written notice to relocate by the owner or administrator,

23  unless the resident's continued residence in the facility

24  presents an imminent danger to the health, safety, or welfare

25  of the resident or a substantial probability exists that death

26  or serious physical harm would result to the resident if

27  allowed to remain in the facility.

28         (10)  A terminally ill resident who no longer meets the

29  criteria for continued residency may remain in the facility if

30  the arrangement is mutually agreeable to the resident and the

31  facility; additional care is rendered through a licensed


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 1  hospice, and the resident is under the care of a physician who

 2  agrees that the physical needs of the resident are being met.

 3         (11)  Facilities licensed to provide extended

 4  congregate care services shall promote aging in place by

 5  determining appropriateness of continued residency based on a

 6  comprehensive review of the resident's physical and functional

 7  status; the ability of the facility, family members, friends,

 8  or any other pertinent individuals or agencies to provide the

 9  care and services required; and documentation that a written

10  service plan consistent with facility policy has been

11  developed and implemented to ensure that the resident's needs

12  and preferences are addressed.

13         (12)  No resident who requires 24-hour nursing

14  supervision, except for a resident who is an enrolled hospice

15  patient pursuant to part IV VI of this chapter 400, shall be

16  retained in a facility licensed under this part.

17         Section 50.  Section 400.427, Florida Statutes, is

18  renumbered as section 429.27, Florida Statutes, is amended to

19  read:

20         429.27 400.427  Property and personal affairs of

21  residents.--

22         (1)(a)  A resident shall be given the option of using

23  his or her own belongings, as space permits; choosing his or

24  her roommate; and, whenever possible, unless the resident is

25  adjudicated incompetent or incapacitated under state law,

26  managing his or her own affairs.

27         (b)  The admission of a resident to a facility and his

28  or her presence therein shall not confer on the facility or

29  its owner, administrator, employees, or representatives any

30  authority to manage, use, or dispose of any property of the

31  resident; nor shall such admission or presence confer on any


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 1  of such persons any authority or responsibility for the

 2  personal affairs of the resident, except that which may be

 3  necessary for the safe management of the facility or for the

 4  safety of the resident.

 5         (2)  A facility, or an owner, administrator, employee,

 6  or representative thereof, may not act as the guardian,

 7  trustee, or conservator for any resident of the assisted

 8  living facility or any of such resident's property. An owner,

 9  administrator, or staff member, or representative thereof, may

10  not act as a competent resident's payee for social security,

11  veteran's, or railroad benefits without the consent of the

12  resident.  Any facility whose owner, administrator, or staff,

13  or representative thereof, serves as representative payee for

14  any resident of the facility shall file a surety bond with the

15  agency in an amount equal to twice the average monthly

16  aggregate income or personal funds due to residents, or

17  expendable for their account, which are received by a

18  facility.  Any facility whose owner, administrator, or staff,

19  or a representative thereof, is granted power of attorney for

20  any resident of the facility shall file a surety bond with the

21  agency for each resident for whom such power of attorney is

22  granted.  The surety bond shall be in an amount equal to twice

23  the average monthly income of the resident, plus the value of

24  any resident's property under the control of the attorney in

25  fact.  The bond shall be executed by the facility as principal

26  and a licensed surety company.  The bond shall be conditioned

27  upon the faithful compliance of the facility with this section

28  and shall run to the agency for the benefit of any resident

29  who suffers a financial loss as a result of the misuse or

30  misappropriation by a facility of funds held pursuant to this

31  subsection.  Any surety company that cancels or does not renew


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 1  the bond of any licensee shall notify the agency in writing

 2  not less than 30 days in advance of such action, giving the

 3  reason for the cancellation or nonrenewal.  Any facility

 4  owner, administrator, or staff, or representative thereof, who

 5  is granted power of attorney for any resident of the facility

 6  shall, on a monthly basis, be required to provide the resident

 7  a written statement of any transaction made on behalf of the

 8  resident pursuant to this subsection, and a copy of such

 9  statement given to the resident shall be retained in each

10  resident's file and available for agency inspection.

11         (3)  A facility, upon mutual consent with the resident,

12  shall provide for the safekeeping in the facility of personal

13  effects not in excess of $500 and funds of the resident not in

14  excess of $200 cash, and shall keep complete and accurate

15  records of all such funds and personal effects received. If a

16  resident is absent from a facility for 24 hours or more, the

17  facility may provide for the safekeeping of the resident's

18  personal effects in excess of $500.

19         (4)  Any funds or other property belonging to or due to

20  a resident, or expendable for his or her account, which is

21  received by a facility shall be trust funds which shall be

22  kept separate from the funds and property of the facility and

23  other residents or shall be specifically credited to such

24  resident.  Such trust funds shall be used or otherwise

25  expended only for the account of the resident. At least once

26  every 3 months, unless upon order of a court of competent

27  jurisdiction, the facility shall furnish the resident and his

28  or her guardian, trustee, or conservator, if any, a complete

29  and verified statement of all funds and other property to

30  which this subsection applies, detailing the amount and items

31  received, together with their sources and disposition.  In any


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 1  event, the facility shall furnish such statement annually and

 2  upon the discharge or transfer of a resident.  Any

 3  governmental agency or private charitable agency contributing

 4  funds or other property to the account of a resident shall

 5  also be entitled to receive such statement annually and upon

 6  the discharge or transfer of the resident.

 7         (5)  Any personal funds available to facility residents

 8  may be used by residents as they choose to obtain clothing,

 9  personal items, leisure activities, and other supplies and

10  services for their personal use.  A facility may not demand,

11  require, or contract for payment of all or any part of the

12  personal funds in satisfaction of the facility rate for

13  supplies and services beyond that amount agreed to in writing

14  and may not levy an additional charge to the individual or the

15  account for any supplies or services that the facility has

16  agreed by contract to provide as part of the standard monthly

17  rate.  Any service or supplies provided by the facility which

18  are charged separately to the individual or the account may be

19  provided only with the specific written consent of the

20  individual, who shall be furnished in advance of the provision

21  of the services or supplies with an itemized written statement

22  to be attached to the contract setting forth the charges for

23  the services or supplies.

24         (6)(a)  In addition to any damages or civil penalties

25  to which a person is subject, any person who:

26         1.  Intentionally withholds a resident's personal

27  funds, personal property, or personal needs allowance, or who

28  demands, beneficially receives, or contracts for payment of

29  all or any part of a resident's personal property or personal

30  needs allowance in satisfaction of the facility rate for

31  supplies and services; or


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 1         2.  Borrows from or pledges any personal funds of a

 2  resident, other than the amount agreed to by written contract

 3  under s. 429.24 s. 400.424,

 4  

 5  commits a misdemeanor of the first degree, punishable as

 6  provided in s. 775.082 or s. 775.083.

 7         (b)  Any facility owner, administrator, or staff, or

 8  representative thereof, who is granted power of attorney for

 9  any resident of the facility and who misuses or

10  misappropriates funds obtained through this power commits a

11  felony of the third degree, punishable as provided in s.

12  775.082, s. 775.083, or s. 775.084.

13         (7)  In the event of the death of a resident, a

14  licensee shall return all refunds, funds, and property held in

15  trust to the resident's personal representative, if one has

16  been appointed at the time the facility disburses such funds,

17  and, if not, to the resident's spouse or adult next of kin

18  named in a beneficiary designation form provided by the

19  facility to the resident. If the resident has no spouse or

20  adult next of kin or such person cannot be located, funds due

21  the resident shall be placed in an interest-bearing account,

22  and all property held in trust by the facility shall be

23  safeguarded until such time as the funds and property are

24  disbursed pursuant to the Florida Probate Code.  Such funds

25  shall be kept separate from the funds and property of the

26  facility and other residents of the facility. If the funds of

27  the deceased resident are not disbursed pursuant to the

28  Florida Probate Code within 2 years after the resident's

29  death, the funds shall be deposited in the Health Care Trust

30  Fund administered by the agency.

31  


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 1         (8)  The department may by rule clarify terms and

 2  specify procedures and documentation necessary to administer

 3  the provisions of this section relating to the proper

 4  management of residents' funds and personal property and the

 5  execution of surety bonds.

 6         Section 51.  Section 400.428, Florida Statutes, is

 7  renumbered as section 429.28, Florida Statutes, and amended to

 8  read:

 9         429.28 400.428  Resident bill of rights.--

10         (1)  No resident of a facility shall be deprived of any

11  civil or legal rights, benefits, or privileges guaranteed by

12  law, the Constitution of the State of Florida, or the

13  Constitution of the United States as a resident of a facility.

14  Every resident of a facility shall have the right to:

15         (a)  Live in a safe and decent living environment, free

16  from abuse and neglect.

17         (b)  Be treated with consideration and respect and with

18  due recognition of personal dignity, individuality, and the

19  need for privacy.

20         (c)  Retain and use his or her own clothes and other

21  personal property in his or her immediate living quarters, so

22  as to maintain individuality and personal dignity, except when

23  the facility can demonstrate that such would be unsafe,

24  impractical, or an infringement upon the rights of other

25  residents.

26         (d)  Unrestricted private communication, including

27  receiving and sending unopened correspondence, access to a

28  telephone, and visiting with any person of his or her choice,

29  at any time between the hours of 9 a.m. and 9 p.m. at a

30  minimum.  Upon request, the facility shall make provisions to

31  


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 1  extend visiting hours for caregivers and out-of-town guests,

 2  and in other similar situations.

 3         (e)  Freedom to participate in and benefit from

 4  community services and activities and to achieve the highest

 5  possible level of independence, autonomy, and interaction

 6  within the community.

 7         (f)  Manage his or her financial affairs unless the

 8  resident or, if applicable, the resident's representative,

 9  designee, surrogate, guardian, or attorney in fact authorizes

10  the administrator of the facility to provide safekeeping for

11  funds as provided in s. 429.27 s. 400.427.

12         (g)  Share a room with his or her spouse if both are

13  residents of the facility.

14         (h)  Reasonable opportunity for regular exercise

15  several times a week and to be outdoors at regular and

16  frequent intervals except when prevented by inclement weather.

17         (i)  Exercise civil and religious liberties, including

18  the right to independent personal decisions.  No religious

19  beliefs or practices, nor any attendance at religious

20  services, shall be imposed upon any resident.

21         (j)  Access to adequate and appropriate health care

22  consistent with established and recognized standards within

23  the community.

24         (k)  At least 45 days' notice of relocation or

25  termination of residency from the facility unless, for medical

26  reasons, the resident is certified by a physician to require

27  an emergency relocation to a facility providing a more skilled

28  level of care or the resident engages in a pattern of conduct

29  that is harmful or offensive to other residents.  In the case

30  of a resident who has been adjudicated mentally incapacitated,

31  the guardian shall be given at least 45 days' notice of a


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 1  nonemergency relocation or residency termination.  Reasons for

 2  relocation shall be set forth in writing.  In order for a

 3  facility to terminate the residency of an individual without

 4  notice as provided herein, the facility shall show good cause

 5  in a court of competent jurisdiction.

 6         (l)  Present grievances and recommend changes in

 7  policies, procedures, and services to the staff of the

 8  facility, governing officials, or any other person without

 9  restraint, interference, coercion, discrimination, or

10  reprisal. Each facility shall establish a grievance procedure

11  to facilitate the residents' exercise of this right.  This

12  right includes access to ombudsman volunteers and advocates

13  and the right to be a member of, to be active in, and to

14  associate with advocacy or special interest groups.

15         (2)  The administrator of a facility shall ensure that

16  a written notice of the rights, obligations, and prohibitions

17  set forth in this part is posted in a prominent place in each

18  facility and read or explained to residents who cannot read.

19  This notice shall include the name, address, and telephone

20  numbers of the local ombudsman council and central abuse

21  hotline and, when applicable, the Advocacy Center for Persons

22  with Disabilities, Inc., and the Florida local advocacy

23  council, where complaints may be lodged.  The facility must

24  ensure a resident's access to a telephone to call the local

25  ombudsman council, central abuse hotline, Advocacy Center for

26  Persons with Disabilities, Inc., and the Florida local

27  advocacy council.

28         (3)(a)  The agency shall conduct a survey to determine

29  general compliance with facility standards and compliance with

30  residents' rights as a prerequisite to initial licensure or

31  licensure renewal.


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 1         (b)  In order to determine whether the facility is

 2  adequately protecting residents' rights, the biennial survey

 3  shall include private informal conversations with a sample of

 4  residents and consultation with the ombudsman council in the

 5  planning and service area in which the facility is located to

 6  discuss residents' experiences within the facility.

 7         (c)  During any calendar year in which no survey is

 8  conducted, the agency shall conduct at least one monitoring

 9  visit of each facility cited in the previous year for a class

10  I or class II violation, or more than three uncorrected class

11  III violations.

12         (d)  The agency may conduct periodic followup

13  inspections as necessary to monitor the compliance of

14  facilities with a history of any class I, class II, or class

15  III violations that threaten the health, safety, or security

16  of residents.

17         (e)  The agency may conduct complaint investigations as

18  warranted to investigate any allegations of noncompliance with

19  requirements required under this part or rules adopted under

20  this part.

21         (4)  The facility shall not hamper or prevent residents

22  from exercising their rights as specified in this section.

23         (5)  No facility or employee of a facility may serve

24  notice upon a resident to leave the premises or take any other

25  retaliatory action against any person who:

26         (a)  Exercises any right set forth in this section.

27         (b)  Appears as a witness in any hearing, inside or

28  outside the facility.

29         (c)  Files a civil action alleging a violation of the

30  provisions of this part or notifies a state attorney or the

31  Attorney General of a possible violation of such provisions.


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 1         (6)  Any facility which terminates the residency of an

 2  individual who participated in activities specified in

 3  subsection (5) shall show good cause in a court of competent

 4  jurisdiction.

 5         (7)  Any person who submits or reports a complaint

 6  concerning a suspected violation of the provisions of this

 7  part or concerning services and conditions in facilities, or

 8  who testifies in any administrative or judicial proceeding

 9  arising from such a complaint, shall have immunity from any

10  civil or criminal liability therefor, unless such person has

11  acted in bad faith or with malicious purpose or the court

12  finds that there was a complete absence of a justiciable issue

13  of either law or fact raised by the losing party.

14         Section 52.  Section 400.429, Florida Statutes, is

15  renumbered as section 429.29, Florida Statutes, and amended to

16  read:

17         429.29 400.429  Civil actions to enforce rights.--

18         (1)  Any person or resident whose rights as specified

19  in this part are violated shall have a cause of action.  The

20  action may be brought by the resident or his or her guardian,

21  or by a person or organization acting on behalf of a resident

22  with the consent of the resident or his or her guardian, or by

23  the personal representative of the estate of a deceased

24  resident regardless of the cause of death. If the action

25  alleges a claim for the resident's rights or for negligence

26  that caused the death of the resident, the claimant shall be

27  required to elect either survival damages pursuant to s.

28  46.021 or wrongful death damages pursuant to s. 768.21. If the

29  action alleges a claim for the resident's rights or for

30  negligence that did not cause the death of the resident, the

31  personal representative of the estate may recover damages for


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 1  the negligence that caused injury to the resident. The action

 2  may be brought in any court of competent jurisdiction to

 3  enforce such rights and to recover actual damages, and

 4  punitive damages for violation of the rights of a resident or

 5  negligence. Any resident who prevails in seeking injunctive

 6  relief or a claim for an administrative remedy is entitled to

 7  recover the costs of the action and a reasonable attorney's

 8  fee assessed against the defendant not to exceed $25,000. Fees

 9  shall be awarded solely for the injunctive or administrative

10  relief and not for any claim or action for damages whether

11  such claim or action is brought together with a request for an

12  injunction or administrative relief or as a separate action,

13  except as provided under s. 768.79 or the Florida Rules of

14  Civil Procedure. Sections 429.29-429.298 400.429-400.4303

15  provide the exclusive remedy for a cause of action for

16  recovery of damages for the personal injury or death of a

17  resident arising out of negligence or a violation of rights

18  specified in s. 429.28 s. 400.428. This section does not

19  preclude theories of recovery not arising out of negligence or

20  s. 429.28 s. 400.428 which are available to a resident or to

21  the agency. The provisions of chapter 766 do not apply to any

22  cause of action brought under ss. 429.29-429.298 ss.

23  400.429-400.4303.

24         (2)  In any claim brought pursuant to this part

25  alleging a violation of resident's rights or negligence

26  causing injury to or the death of a resident, the claimant

27  shall have the burden of proving, by a preponderance of the

28  evidence, that:

29         (a)  The defendant owed a duty to the resident;

30         (b)  The defendant breached the duty to the resident;

31  


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 1         (c)  The breach of the duty is a legal cause of loss,

 2  injury, death, or damage to the resident; and

 3         (d)  The resident sustained loss, injury, death, or

 4  damage as a result of the breach.

 5  

 6  Nothing in this part shall be interpreted to create strict

 7  liability. A violation of the rights set forth in s. 429.28 s.

 8  400.428 or in any other standard or guidelines specified in

 9  this part or in any applicable administrative standard or

10  guidelines of this state or a federal regulatory agency shall

11  be evidence of negligence but shall not be considered

12  negligence per se.

13         (3)  In any claim brought pursuant to this section, a

14  licensee, person, or entity shall have a duty to exercise

15  reasonable care.  Reasonable care is that degree of care which

16  a reasonably careful licensee, person, or entity would use

17  under like circumstances.

18         (4)  In any claim for resident's rights violation or

19  negligence by a nurse licensed under part I of chapter 464,

20  such nurse shall have the duty to exercise care consistent

21  with the prevailing professional standard of care for a nurse.

22  The prevailing professional standard of care for a nurse shall

23  be that level of care, skill, and treatment which, in light of

24  all relevant surrounding circumstances, is recognized as

25  acceptable and appropriate by reasonably prudent similar

26  nurses.

27         (5)  Discovery of financial information for the purpose

28  of determining the value of punitive damages may not be had

29  unless the plaintiff shows the court by proffer or evidence in

30  the record that a reasonable basis exists to support a claim

31  for punitive damages.


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 1         (6)  In addition to any other standards for punitive

 2  damages, any award of punitive damages must be reasonable in

 3  light of the actual harm suffered by the resident and the

 4  egregiousness of the conduct that caused the actual harm to

 5  the resident.

 6         (7)  The resident or the resident's legal

 7  representative shall serve a copy of any complaint alleging in

 8  whole or in part a violation of any rights specified in this

 9  part to the Agency for Health Care Administration at the time

10  of filing the initial complaint with the clerk of the court

11  for the county in which the action is pursued. The requirement

12  of providing a copy of the complaint to the agency does not

13  impair the resident's legal rights or ability to seek relief

14  for his or her claim.

15         Section 53.  Section 400.4293, Florida Statutes, is

16  renumbered as section 429.293, Florida Statutes, and amended

17  to read:

18         429.293 400.4293  Presuit notice; investigation;

19  notification of violation of residents' rights or alleged

20  negligence; claims evaluation procedure; informal discovery;

21  review; settlement offer; mediation.--

22         (1)  As used in this section, the term:

23         (a)  "Claim for residents' rights violation or

24  negligence" means a negligence claim alleging injury to or the

25  death of a resident arising out of an asserted violation of

26  the rights of a resident under s. 429.28 s. 400.428 or an

27  asserted deviation from the applicable standard of care.

28         (b)  "Insurer" means any self-insurer authorized under

29  s. 627.357, liability insurance carrier, joint underwriting

30  association, or uninsured prospective defendant.

31  


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 1         (2)  Prior to filing a claim for a violation of a

 2  resident's rights or a claim for negligence, a claimant

 3  alleging injury to or the death of a resident shall notify

 4  each prospective defendant by certified mail, return receipt

 5  requested, of an asserted violation of a resident's rights

 6  provided in s. 429.28 s. 400.428 or deviation from the

 7  standard of care. Such notification shall include an

 8  identification of the rights the prospective defendant has

 9  violated and the negligence alleged to have caused the

10  incident or incidents and a brief description of the injuries

11  sustained by the resident which are reasonably identifiable at

12  the time of notice. The notice shall contain a certificate of

13  counsel that counsel's reasonable investigation gave rise to a

14  good faith belief that grounds exist for an action against

15  each prospective defendant.

16         (3)(a)  No suit may be filed for a period of 75 days

17  after notice is mailed to any prospective defendant. During

18  the 75-day period, the prospective defendants or their

19  insurers shall conduct an evaluation of the claim to determine

20  the liability of each defendant and to evaluate the damages of

21  the claimants. Each defendant or insurer of the defendant

22  shall have a procedure for the prompt evaluation of claims

23  during the 75-day period. The procedure shall include one or

24  more of the following:

25         1.  Internal review by a duly qualified facility risk

26  manager or claims adjuster;

27         2.  Internal review by counsel for each prospective

28  defendant;

29         3.  A quality assurance committee authorized under any

30  applicable state or federal statutes or regulations; or

31  


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 1         4.  Any other similar procedure that fairly and

 2  promptly evaluates the claims.

 3  

 4  Each defendant or insurer of the defendant shall evaluate the

 5  claim in good faith.

 6         (b)  At or before the end of the 75 days, the defendant

 7  or insurer of the defendant shall provide the claimant with a

 8  written response:

 9         1.  Rejecting the claim; or

10         2.  Making a settlement offer.

11         (c)  The response shall be delivered to the claimant if

12  not represented by counsel or to the claimant's attorney, by

13  certified mail, return receipt requested. Failure of the

14  prospective defendant or insurer of the defendant to reply to

15  the notice within 75 days after receipt shall be deemed a

16  rejection of the claim for purposes of this section.

17         (4)  The notification of a violation of a resident's

18  rights or alleged negligence shall be served within the

19  applicable statute of limitations period; however, during the

20  75-day period, the statute of limitations is tolled as to all

21  prospective defendants. Upon stipulation by the parties, the

22  75-day period may be extended and the statute of limitations

23  is tolled during any such extension. Upon receiving written

24  notice by certified mail, return receipt requested, of

25  termination of negotiations in an extended period, the

26  claimant shall have 60 days or the remainder of the period of

27  the statute of limitations, whichever is greater, within which

28  to file suit.

29         (5)  No statement, discussion, written document,

30  report, or other work product generated by presuit claims

31  evaluation procedures under this section is discoverable or


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 1  admissible in any civil action for any purpose by the opposing

 2  party. All participants, including, but not limited to,

 3  physicians, investigators, witnesses, and employees or

 4  associates of the defendant, are immune from civil liability

 5  arising from participation in the presuit claims evaluation

 6  procedure. Any licensed physician or registered nurse may be

 7  retained by either party to provide an opinion regarding the

 8  reasonable basis of the claim. The presuit opinions of the

 9  expert are not discoverable or admissible in any civil action

10  for any purpose by the opposing party.

11         (6)  Upon receipt by a prospective defendant of a

12  notice of claim, the parties shall make discoverable

13  information available without formal discovery as provided in

14  subsection (7).

15         (7)  Informal discovery may be used by a party to

16  obtain unsworn statements and the production of documents or

17  things, as follows:

18         (a)  Unsworn statements.--Any party may require other

19  parties to appear for the taking of an unsworn statement. Such

20  statements may be used only for the purpose of claims

21  evaluation and are not discoverable or admissible in any civil

22  action for any purpose by any party. A party seeking to take

23  the unsworn statement of any party must give reasonable notice

24  in writing to all parties. The notice must state the time and

25  place for taking the statement and the name and address of the

26  party to be examined. Unless otherwise impractical, the

27  examination of any party must be done at the same time by all

28  other parties. Any party may be represented by counsel at the

29  taking of an unsworn statement. An unsworn statement may be

30  recorded electronically, stenographically, or on videotape.

31  The taking of unsworn statements is subject to the provisions


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 1  of the Florida Rules of Civil Procedure and may be terminated

 2  for abuses.

 3         (b)  Documents or things.--Any party may request

 4  discovery of relevant documents or things. The documents or

 5  things must be produced, at the expense of the requesting

 6  party, within 20 days after the date of receipt of the

 7  request. A party is required to produce relevant and

 8  discoverable documents or things within that party's

 9  possession or control, if in good faith it can reasonably be

10  done within the timeframe of the claims evaluation process.

11         (8)  Each request for and notice concerning informal

12  discovery pursuant to this section must be in writing, and a

13  copy thereof must be sent to all parties. Such a request or

14  notice must bear a certificate of service identifying the name

15  and address of the person to whom the request or notice is

16  served, the date of the request or notice, and the manner of

17  service thereof.

18         (9)  If a prospective defendant makes a written

19  settlement offer, the claimant shall have 15 days from the

20  date of receipt to accept the offer. An offer shall be deemed

21  rejected unless accepted by delivery of a written notice of

22  acceptance.

23         (10)  To the extent not inconsistent with this part,

24  the provisions of the Florida Mediation Code, Florida Rules of

25  Civil Procedure, shall be applicable to such proceedings.

26         (11)  Within 30 days after the claimant's receipt of

27  defendant's response to the claim, the parties or their

28  designated representatives shall meet in mediation to discuss

29  the issues of liability and damages in accordance with the

30  mediation rules of practice and procedures adopted by the

31  Supreme Court. Upon stipulation of the parties, this 30-day


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 1  period may be extended and the statute of limitations is

 2  tolled during the mediation and any such extension. At the

 3  conclusion of mediation, the claimant shall have 60 days or

 4  the remainder of the period of the statute of limitations,

 5  whichever is greater, within which to file suit.

 6         Section 54.  Section 400.431, Florida Statutes, is

 7  renumbered as section 429.31, Florida Statutes, and amended to

 8  read:

 9         429.31 400.431  Closing of facility; notice; penalty.--

10         (1)  Whenever a facility voluntarily discontinues

11  operation, it shall inform the agency in writing at least 90

12  days prior to the discontinuance of operation.  The facility

13  shall also inform each resident or the next of kin, legal

14  representative, or agency acting on each resident's behalf, of

15  the fact and the proposed time of such discontinuance,

16  following the notification requirements provided in s.

17  429.28(1)(k) s. 400.428(1)(k).  In the event a resident has no

18  person to represent him or her, the facility shall be

19  responsible for referral to an appropriate social service

20  agency for placement.

21         (2)  Immediately upon the notice by the agency of the

22  voluntary or involuntary termination of such operation, the

23  agency shall monitor the transfer of residents to other

24  facilities and ensure that residents' rights are being

25  protected.  The department, in consultation with the

26  Department of Children and Family Services, shall specify

27  procedures for ensuring that all residents who receive

28  services are appropriately relocated.

29         (3)  All charges shall be prorated as of the date on

30  which the facility discontinues operation, and if any payments

31  have been made in advance, the payments for services not


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 1  received shall be refunded to the resident or the resident's

 2  guardian within 10 working days of voluntary or involuntary

 3  closure of the facility, whether or not such refund is

 4  requested by the resident or guardian.

 5         (4)  Immediately upon discontinuance of the operation

 6  of a facility, the owner shall surrender the license therefor

 7  to the agency, and the license shall be canceled.

 8         (5)  The agency may levy a fine in an amount no greater

 9  than $5,000 upon each person or business entity that owns any

10  interest in a facility that terminates operation without

11  providing notice to the agency and the residents of the

12  facility at least 30 days before operation ceases.  This fine

13  shall not be levied against any facility involuntarily closed

14  at the initiation of the agency.  The agency shall use the

15  proceeds of the fines to operate the facility until all

16  residents of the facility are relocated and shall deposit any

17  balance of the proceeds into the Health Care Trust Fund

18  established pursuant to s. 429.18 s. 400.418.

19         Section 55.  Section 400.441, Florida Statutes, is

20  renumbered as section 429.41, Florida Statutes, and amended to

21  read:

22         429.41 400.441  Rules establishing standards.--

23         (1)  It is the intent of the Legislature that rules

24  published and enforced pursuant to this section shall include

25  criteria by which a reasonable and consistent quality of

26  resident care and quality of life may be ensured and the

27  results of such resident care may be demonstrated.  Such rules

28  shall also ensure a safe and sanitary environment that is

29  residential and noninstitutional in design or nature.  It is

30  further intended that reasonable efforts be made to

31  accommodate the needs and preferences of residents to enhance


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 1  the quality of life in a facility. In order to provide safe

 2  and sanitary facilities and the highest quality of resident

 3  care accommodating the needs and preferences of residents, the

 4  department, in consultation with the agency, the Department of

 5  Children and Family Services, and the Department of Health,

 6  shall adopt rules, policies, and procedures to administer this

 7  part, which must include reasonable and fair minimum standards

 8  in relation to:

 9         (a)  The requirements for and maintenance of

10  facilities, not in conflict with the provisions of chapter

11  553, relating to plumbing, heating, cooling, lighting,

12  ventilation, living space, and other housing conditions, which

13  will ensure the health, safety, and comfort of residents and

14  protection from fire hazard, including adequate provisions for

15  fire alarm and other fire protection suitable to the size of

16  the structure. Uniform firesafety standards shall be

17  established and enforced by the State Fire Marshal in

18  cooperation with the agency, the department, and the

19  Department of Health.

20         1.  Evacuation capability determination.--

21         a.  The provisions of the National Fire Protection

22  Association, NFPA 101A, Chapter 5, 1995 edition, shall be used

23  for determining the ability of the residents, with or without

24  staff assistance, to relocate from or within a licensed

25  facility to a point of safety as provided in the fire codes

26  adopted herein. An evacuation capability evaluation for

27  initial licensure shall be conducted within 6 months after the

28  date of licensure. For existing licensed facilities that are

29  not equipped with an automatic fire sprinkler system, the

30  administrator shall evaluate the evacuation capability of

31  residents at least annually. The evacuation capability


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 1  evaluation for each facility not equipped with an automatic

 2  fire sprinkler system shall be validated, without liability,

 3  by the State Fire Marshal, by the local fire marshal, or by

 4  the local authority having jurisdiction over firesafety,

 5  before the license renewal date. If the State Fire Marshal,

 6  local fire marshal, or local authority having jurisdiction

 7  over firesafety has reason to believe that the evacuation

 8  capability of a facility as reported by the administrator may

 9  have changed, it may, with assistance from the facility

10  administrator, reevaluate the evacuation capability through

11  timed exiting drills. Translation of timed fire exiting drills

12  to evacuation capability may be determined:

13         (I)  Three minutes or less: prompt.

14         (II)  More than 3 minutes, but not more than 13

15  minutes: slow.

16         (III)  More than 13 minutes: impractical.

17         b.  The Office of the State Fire Marshal shall provide

18  or cause the provision of training and education on the proper

19  application of Chapter 5, NFPA 101A, 1995 edition, to its

20  employees, to staff of the Agency for Health Care

21  Administration who are responsible for regulating facilities

22  under this part, and to local governmental inspectors. The

23  Office of the State Fire Marshal shall provide or cause the

24  provision of this training within its existing budget, but may

25  charge a fee for this training to offset its costs. The

26  initial training must be delivered within 6 months after July

27  1, 1995, and as needed thereafter.

28         c.  The Office of the State Fire Marshal, in

29  cooperation with provider associations, shall provide or cause

30  the provision of a training program designed to inform

31  facility operators on how to properly review bid documents


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 1  relating to the installation of automatic fire sprinklers. The

 2  Office of the State Fire Marshal shall provide or cause the

 3  provision of this training within its existing budget, but may

 4  charge a fee for this training to offset its costs. The

 5  initial training must be delivered within 6 months after July

 6  1, 1995, and as needed thereafter.

 7         d.  The administrator of a licensed facility shall sign

 8  an affidavit verifying the number of residents occupying the

 9  facility at the time of the evacuation capability evaluation.

10         2.  Firesafety requirements.--

11         a.  Except for the special applications provided

12  herein, effective January 1, 1996, the provisions of the

13  National Fire Protection Association, Life Safety Code, NFPA

14  101, 1994 edition, Chapter 22 for new facilities and Chapter

15  23 for existing facilities shall be the uniform fire code

16  applied by the State Fire Marshal for assisted living

17  facilities, pursuant to s. 633.022.

18         b.  Any new facility, regardless of size, that applies

19  for a license on or after January 1, 1996, must be equipped

20  with an automatic fire sprinkler system. The exceptions as

21  provided in section 22-2.3.5.1, NFPA 101, 1994 edition, as

22  adopted herein, apply to any new facility housing eight or

23  fewer residents. On July 1, 1995, local governmental entities

24  responsible for the issuance of permits for construction shall

25  inform, without liability, any facility whose permit for

26  construction is obtained prior to January 1, 1996, of this

27  automatic fire sprinkler requirement. As used in this part,

28  the term "a new facility" does not mean an existing facility

29  that has undergone change of ownership.

30         c.  Notwithstanding any provision of s. 633.022 or of

31  the National Fire Protection Association, NFPA 101A, Chapter


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 1  5, 1995 edition, to the contrary, any existing facility

 2  housing eight or fewer residents is not required to install an

 3  automatic fire sprinkler system, nor to comply with any other

 4  requirement in Chapter 23, NFPA 101, 1994 edition, that

 5  exceeds the firesafety requirements of NFPA 101, 1988 edition,

 6  that applies to this size facility, unless the facility has

 7  been classified as impractical to evacuate. Any existing

 8  facility housing eight or fewer residents that is classified

 9  as impractical to evacuate must install an automatic fire

10  sprinkler system within the timeframes granted in this

11  section.

12         d.  Any existing facility that is required to install

13  an automatic fire sprinkler system under this paragraph need

14  not meet other firesafety requirements of Chapter 23, NFPA

15  101, 1994 edition, which exceed the provisions of NFPA 101,

16  1988 edition. The mandate contained in this paragraph which

17  requires certain facilities to install an automatic fire

18  sprinkler system supersedes any other requirement.

19         e.  This paragraph does not supersede the exceptions

20  granted in NFPA 101, 1988 edition or 1994 edition.

21         f.  This paragraph does not exempt facilities from

22  other firesafety provisions adopted under s. 633.022 and local

23  building code requirements in effect before July 1, 1995.

24         g.  A local government may charge fees only in an

25  amount not to exceed the actual expenses incurred by local

26  government relating to the installation and maintenance of an

27  automatic fire sprinkler system in an existing and properly

28  licensed assisted living facility structure as of January 1,

29  1996.

30         h.  If a licensed facility undergoes major

31  reconstruction or addition to an existing building on or after


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 1  January 1, 1996, the entire building must be equipped with an

 2  automatic fire sprinkler system. Major reconstruction of a

 3  building means repair or restoration that costs in excess of

 4  50 percent of the value of the building as reported on the tax

 5  rolls, excluding land, before reconstruction. Multiple

 6  reconstruction projects within a 5-year period the total costs

 7  of which exceed 50 percent of the initial value of the

 8  building at the time the first reconstruction project was

 9  permitted are to be considered as major reconstruction.

10  Application for a permit for an automatic fire sprinkler

11  system is required upon application for a permit for a

12  reconstruction project that creates costs that go over the

13  50-percent threshold.

14         i.  Any facility licensed before January 1, 1996, that

15  is required to install an automatic fire sprinkler system

16  shall ensure that the installation is completed within the

17  following timeframes based upon evacuation capability of the

18  facility as determined under subparagraph 1.:

19         (I)  Impractical evacuation capability, 24 months.

20         (II)  Slow evacuation capability, 48 months.

21         (III)  Prompt evacuation capability, 60 months.

22  

23  The beginning date from which the deadline for the automatic

24  fire sprinkler installation requirement must be calculated is

25  upon receipt of written notice from the local fire official

26  that an automatic fire sprinkler system must be installed. The

27  local fire official shall send a copy of the document

28  indicating the requirement of a fire sprinkler system to the

29  Agency for Health Care Administration.

30         j.  It is recognized that the installation of an

31  automatic fire sprinkler system may create financial hardship


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 1  for some facilities. The appropriate local fire official

 2  shall, without liability, grant two 1-year extensions to the

 3  timeframes for installation established herein, if an

 4  automatic fire sprinkler installation cost estimate and proof

 5  of denial from two financial institutions for a construction

 6  loan to install the automatic fire sprinkler system are

 7  submitted. However, for any facility with a class I or class

 8  II, or a history of uncorrected class III, firesafety

 9  deficiencies, an extension must not be granted. The local fire

10  official shall send a copy of the document granting the time

11  extension to the Agency for Health Care Administration.

12         k.  A facility owner whose facility is required to be

13  equipped with an automatic fire sprinkler system under Chapter

14  23, NFPA 101, 1994 edition, as adopted herein, must disclose

15  to any potential buyer of the facility that an installation of

16  an automatic fire sprinkler requirement exists. The sale of

17  the facility does not alter the timeframe for the installation

18  of the automatic fire sprinkler system.

19         l.  Existing facilities required to install an

20  automatic fire sprinkler system as a result of

21  construction-type restrictions in Chapter 23, NFPA 101, 1994

22  edition, as adopted herein, or evacuation capability

23  requirements shall be notified by the local fire official in

24  writing of the automatic fire sprinkler requirement, as well

25  as the appropriate date for final compliance as provided in

26  this subparagraph. The local fire official shall send a copy

27  of the document to the Agency for Health Care Administration.

28         m.  Except in cases of life-threatening fire hazards,

29  if an existing facility experiences a change in the evacuation

30  capability, or if the local authority having jurisdiction

31  identifies a construction-type restriction, such that an


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 1  automatic fire sprinkler system is required, it shall be

 2  afforded time for installation as provided in this

 3  subparagraph.

 4  

 5  Facilities that are fully sprinkled and in compliance with

 6  other firesafety standards are not required to conduct more

 7  than one of the required fire drills between the hours of 11

 8  p.m. and 7 a.m., per year. In lieu of the remaining drills,

 9  staff responsible for residents during such hours may be

10  required to participate in a mock drill that includes a review

11  of evacuation procedures. Such standards must be included or

12  referenced in the rules adopted by the State Fire Marshal.

13  Pursuant to s. 633.022(1)(b), the State Fire Marshal is the

14  final administrative authority for firesafety standards

15  established and enforced pursuant to this section. All

16  licensed facilities must have an annual fire inspection

17  conducted by the local fire marshal or authority having

18  jurisdiction.

19         3.  Resident elopement requirements.--Facilities are

20  required to conduct a minimum of two resident elopement

21  prevention and response drills per year. All administrators

22  and direct care staff must participate in the drills which

23  shall include a review of procedures to address resident

24  elopement. Facilities must document the implementation of the

25  drills and ensure that the drills are conducted in a manner

26  consistent with the facility's resident elopement policies and

27  procedures.

28         (b)  The preparation and annual update of a

29  comprehensive emergency management plan.  Such standards must

30  be included in the rules adopted by the department after

31  consultation with the Department of Community Affairs.  At a


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 1  minimum, the rules must provide for plan components that

 2  address emergency evacuation transportation; adequate

 3  sheltering arrangements; postdisaster activities, including

 4  provision of emergency power, food, and water; postdisaster

 5  transportation; supplies; staffing; emergency equipment;

 6  individual identification of residents and transfer of

 7  records; communication with families; and responses to family

 8  inquiries.  The comprehensive emergency management plan is

 9  subject to review and approval by the local emergency

10  management agency. During its review, the local emergency

11  management agency shall ensure that the following agencies, at

12  a minimum, are given the opportunity to review the plan:  the

13  Department of Elderly Affairs, the Department of Health, the

14  Agency for Health Care Administration, and the Department of

15  Community Affairs.  Also, appropriate volunteer organizations

16  must be given the opportunity to review the plan.  The local

17  emergency management agency shall complete its review within

18  60 days and either approve the plan or advise the facility of

19  necessary revisions.

20         (c)  The number, training, and qualifications of all

21  personnel having responsibility for the care of residents.

22  The rules must require adequate staff to provide for the

23  safety of all residents.  Facilities licensed for 17 or more

24  residents are required to maintain an alert staff for 24 hours

25  per day.

26         (d)  All sanitary conditions within the facility and

27  its surroundings which will ensure the health and comfort of

28  residents.  The rules must clearly delineate the

29  responsibilities of the agency's licensure and survey staff,

30  the county health departments, and the local authority having

31  jurisdiction over fire safety and ensure that inspections are


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 1  not duplicative.  The agency may collect fees for food service

 2  inspections conducted by the county health departments and

 3  transfer such fees to the Department of Health.

 4         (e)  License application and license renewal, transfer

 5  of ownership, proper management of resident funds and personal

 6  property, surety bonds, resident contracts, refund policies,

 7  financial ability to operate, and facility and staff records.

 8         (f)  Inspections, complaint investigations,

 9  moratoriums, classification of deficiencies, levying and

10  enforcement of penalties, and use of income from fees and

11  fines.

12         (g)  The enforcement of the resident bill of rights

13  specified in s. 429.28 s. 400.428.

14         (h)  The care and maintenance of residents, which must

15  include, but is not limited to:

16         1.  The supervision of residents;

17         2.  The provision of personal services;

18         3.  The provision of, or arrangement for, social and

19  leisure activities;

20         4.  The arrangement for appointments and transportation

21  to appropriate medical, dental, nursing, or mental health

22  services, as needed by residents;

23         5.  The management of medication;

24         6.  The nutritional needs of residents;

25         7.  Resident records; and

26         8.  Internal risk management and quality assurance.

27         (i)  Facilities holding a limited nursing, extended

28  congregate care, or limited mental health license.

29         (j)  The establishment of specific criteria to define

30  appropriateness of resident admission and continued residency

31  


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 1  in a facility holding a standard, limited nursing, extended

 2  congregate care, and limited mental health license.

 3         (k)  The use of physical or chemical restraints.  The

 4  use of physical restraints is limited to half-bed rails as

 5  prescribed and documented by the resident's physician with the

 6  consent of the resident or, if applicable, the resident's

 7  representative or designee or the resident's surrogate,

 8  guardian, or attorney in fact.  The use of chemical restraints

 9  is limited to prescribed dosages of medications authorized by

10  the resident's physician and must be consistent with the

11  resident's diagnosis. Residents who are receiving medications

12  that can serve as chemical restraints must be evaluated by

13  their physician at least annually to assess:

14         1.  The continued need for the medication.

15         2.  The level of the medication in the resident's

16  blood.

17         3.  The need for adjustments in the prescription.

18         (l)  The establishment of specific policies and

19  procedures on resident elopement. Facilities shall conduct a

20  minimum of two resident elopement drills each year. All

21  administrators and direct care staff shall participate in the

22  drills. Facilities shall document the drills.

23         (2)  In adopting any rules pursuant to this part, the

24  department, in conjunction with the agency, shall make

25  distinct standards for facilities based upon facility size;

26  the types of care provided; the physical and mental

27  capabilities and needs of residents; the type, frequency, and

28  amount of services and care offered; and the staffing

29  characteristics of the facility. Rules developed pursuant to

30  this section shall not restrict the use of shared staffing and

31  shared programming in facilities that are part of retirement


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 1  communities that provide multiple levels of care and otherwise

 2  meet the requirements of law and rule.  Except for uniform

 3  firesafety standards, the department shall adopt by rule

 4  separate and distinct standards for facilities with 16 or

 5  fewer beds and for facilities with 17 or more beds.  The

 6  standards for facilities with 16 or fewer beds shall be

 7  appropriate for a noninstitutional residential environment,

 8  provided that the structure is no more than two stories in

 9  height and all persons who cannot exit the facility unassisted

10  in an emergency reside on the first floor.  The department, in

11  conjunction with the agency, may make other distinctions among

12  types of facilities as necessary to enforce the provisions of

13  this part. Where appropriate, the agency shall offer alternate

14  solutions for complying with established standards, based on

15  distinctions made by the department and the agency relative to

16  the physical characteristics of facilities and the types of

17  care offered therein.

18         (3)  The department shall submit a copy of proposed

19  rules to the Speaker of the House of Representatives, the

20  President of the Senate, and appropriate committees of

21  substance for review and comment prior to the promulgation

22  thereof.

23         (a)  Rules promulgated by the department shall

24  encourage the development of homelike facilities which promote

25  the dignity, individuality, personal strengths, and

26  decisionmaking ability of residents.

27         (b)  The agency, in consultation with the department,

28  may waive rules promulgated pursuant to this part in order to

29  demonstrate and evaluate innovative or cost-effective

30  congregate care alternatives which enable individuals to age

31  in place.  Such waivers may be granted only in instances where


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 1  there is reasonable assurance that the health, safety, or

 2  welfare of residents will not be endangered.  To apply for a

 3  waiver, the licensee shall submit to the agency a written

 4  description of the concept to be demonstrated, including

 5  goals, objectives, and anticipated benefits; the number and

 6  types of residents who will be affected, if applicable; a

 7  brief description of how the demonstration will be evaluated;

 8  and any other information deemed appropriate by the agency.

 9  Any facility granted a waiver shall submit a report of

10  findings to the agency and the department within 12 months.

11  At such time, the agency may renew or revoke the waiver or

12  pursue any regulatory or statutory changes necessary to allow

13  other facilities to adopt the same practices. The department

14  may by rule clarify terms and establish waiver application

15  procedures, criteria for reviewing waiver proposals, and

16  procedures for reporting findings, as necessary to implement

17  this subsection.

18         (4)  The agency may use an abbreviated biennial

19  standard licensure inspection that consists of a review of key

20  quality-of-care standards in lieu of a full inspection in

21  facilities which have a good record of past performance.

22  However, a full inspection shall be conducted in facilities

23  which have had a history of class I or class II violations,

24  uncorrected class III violations, confirmed ombudsman council

25  complaints, or confirmed licensure complaints, within the

26  previous licensure period immediately preceding the inspection

27  or when a potentially serious problem is identified during the

28  abbreviated inspection.  The agency, in consultation with the

29  department, shall develop the key quality-of-care standards

30  with input from the State Long-Term Care Ombudsman Council and

31  representatives of provider groups for incorporation into its


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 1  rules. The department, in consultation with the agency, shall

 2  report annually to the Legislature concerning its

 3  implementation of this subsection. The report shall include,

 4  at a minimum, the key quality-of-care standards which have

 5  been developed; the number of facilities identified as being

 6  eligible for the abbreviated inspection; the number of

 7  facilities which have received the abbreviated inspection and,

 8  of those, the number that were converted to full inspection;

 9  the number and type of subsequent complaints received by the

10  agency or department on facilities which have had abbreviated

11  inspections; any recommendations for modification to this

12  subsection; any plans by the agency to modify its

13  implementation of this subsection; and any other information

14  which the department believes should be reported.

15         (5)  A fee shall be charged by the department to any

16  person requesting a copy of this part or rules promulgated

17  under this part.  Such fees shall not exceed the actual cost

18  of duplication and postage.

19         Section 56.  Section 400.442, Florida Statutes, is

20  renumbered as section 429.42, Florida Statutes, and amended to

21  read:

22         429.42 400.442  Pharmacy and dietary services.--

23         (1)  Any assisted living facility in which the agency

24  has documented a class I or class II deficiency or uncorrected

25  class III deficiencies regarding medicinal drugs or

26  over-the-counter preparations, including their storage, use,

27  delivery, or administration, or dietary services, or both,

28  during a biennial survey or a monitoring visit or an

29  investigation in response to a complaint, shall, in addition

30  to or as an alternative to any penalties imposed under s.

31  429.19 s. 400.419, be required to employ the consultant


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 1  services of a licensed pharmacist, a licensed registered

 2  nurse, or a registered or licensed dietitian, as applicable.

 3  The consultant shall, at a minimum, provide onsite quarterly

 4  consultation until the inspection team from the agency

 5  determines that such consultation services are no longer

 6  required.

 7         (2)  A corrective action plan for deficiencies related

 8  to assistance with the self-administration of medication or

 9  the administration of medication must be developed and

10  implemented by the facility within 48 hours after notification

11  of such deficiency, or sooner if the deficiency is determined

12  by the agency to be life-threatening.

13         (3)  The agency shall employ at least two pharmacists

14  licensed pursuant to chapter 465 among its personnel who

15  biennially inspect assisted living facilities licensed under

16  this part, to participate in biennial inspections or consult

17  with the agency regarding deficiencies relating to medicinal

18  drugs or over-the-counter preparations.

19         (4)  The department may by rule establish procedures

20  and specify documentation as necessary to implement this

21  section.

22         Section 57.  Section 400.444, Florida Statutes, is

23  renumbered as section 429.44, Florida Statutes, and amended to

24  read:

25         429.44 400.444  Construction and renovation;

26  requirements.--

27         (1)  The requirements for the construction and

28  renovation of a facility shall comply with the provisions of

29  chapter 553 which pertain to building construction standards,

30  including plumbing, electrical code, glass, manufactured

31  buildings, accessibility for persons with disabilities, and


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 1  the state minimum building code and with the provisions of s.

 2  633.022, which pertain to uniform firesafety standards.

 3         (2)  Upon notification by the local authority having

 4  jurisdiction over life-threatening violations which seriously

 5  threaten the health, safety, or welfare of a resident of a

 6  facility, the agency shall take action as specified in s.

 7  429.14 s. 400.414.

 8         (3)  The department may adopt rules to establish

 9  procedures and specify the documentation necessary to

10  implement this section.

11         Section 58.  Section 400.447, Florida Statutes, is

12  renumbered as section 429.47, Florida Statutes, and amended to

13  read:

14         429.47 400.447  Prohibited acts; penalties for

15  violation.--

16         (1)  It is unlawful for any person or public body to

17  offer or advertise to the public, in any way by any medium

18  whatever, personal services as defined in this act, without

19  obtaining a valid current license.  It is unlawful for any

20  holder of a license issued pursuant to the provisions of this

21  act to advertise or hold out to the public that it holds a

22  license for a facility other than that for which it actually

23  holds a license.

24         (2)  It is unlawful for any holder of a license issued

25  pursuant to the provisions of this act to withhold from the

26  agency any evidence of financial instability, including, but

27  not limited to, bad checks, delinquent accounts, nonpayment of

28  withholding taxes, unpaid utility expenses, nonpayment for

29  essential services, or adverse court action concerning the

30  financial viability of the facility or any other facility

31  


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 1  licensed under part II of chapter 400 or under part I III of

 2  this chapter which is owned by the licensee.

 3         (3)  Any person found guilty of violating subsection

 4  (1) or subsection (2) commits a misdemeanor of the second

 5  degree, punishable as provided in s. 775.083.  Each day of

 6  continuing violation shall be considered a separate offense.

 7         (4)  While a facility is under construction, the owner

 8  may advertise to the public prior to obtaining a license.

 9  Facilities that are certified under chapter 651 shall comply

10  with the advertising provisions of s. 651.095 rather than

11  those provided for in this subsection.

12         (5)  A freestanding facility shall not advertise or

13  imply that any part of it is a nursing home.  For the purpose

14  of this subsection, "freestanding facility" means a facility

15  that is not operated in conjunction with a nursing home to

16  which residents of the facility are given priority when

17  nursing care is required.  A person who violates this

18  subsection is subject to fine as specified in s. 429.19 s.

19  400.419.

20         (6)  Any facility which is affiliated with any

21  religious organization or which has a name implying religious

22  affiliation shall include in its advertising whether or not it

23  is affiliated with any religious organization and, if so,

24  which organization.

25         (7)  A facility licensed under this part which is not

26  part of a facility authorized under chapter 651 shall include

27  the facility's license number as given by the agency in all

28  advertising.  A company or person owning more than one

29  facility shall include at least one license number per

30  advertisement.  All advertising shall include the term

31  "assisted living facility" before the license number.


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 1         Section 59.  Section 400.452, Florida Statutes, is

 2  renumbered as section 429.52, Florida Statutes, and amended to

 3  read:

 4         429.52 400.452  Staff training and educational

 5  programs; core educational requirement.--

 6         (1)  Administrators and other assisted living facility

 7  staff must meet minimum training and education requirements

 8  established by the Department of Elderly Affairs by rule. This

 9  training and education is intended to assist facilities to

10  appropriately respond to the needs of residents, to maintain

11  resident care and facility standards, and to meet licensure

12  requirements.

13         (2)  The department shall establish a competency test

14  and a minimum required score to indicate successful completion

15  of the training and educational requirements. The competency

16  test must be developed by the department in conjunction with

17  the agency and providers. The required training and education

18  must cover at least the following topics:

19         (a)  State law and rules relating to assisted living

20  facilities.

21         (b)  Resident rights and identifying and reporting

22  abuse, neglect, and exploitation.

23         (c)  Special needs of elderly persons, persons with

24  mental illness, and persons with developmental disabilities

25  and how to meet those needs.

26         (d)  Nutrition and food service, including acceptable

27  sanitation practices for preparing, storing, and serving food.

28         (e)  Medication management, recordkeeping, and proper

29  techniques for assisting residents with self-administered

30  medication.

31  


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 1         (f)  Firesafety requirements, including fire evacuation

 2  drill procedures and other emergency procedures.

 3         (g)  Care of persons with Alzheimer's disease and

 4  related disorders.

 5         (3)  Effective January 1, 2004, a new facility

 6  administrator must complete the required training and

 7  education, including the competency test, within a reasonable

 8  time after being employed as an administrator, as determined

 9  by the department.  Failure to do so is a violation of this

10  part and subjects the violator to an administrative fine as

11  prescribed in s. 429.19 s. 400.419. Administrators licensed in

12  accordance with chapter 468, part II, are exempt from this

13  requirement. Other licensed professionals may be exempted, as

14  determined by the department by rule.

15         (4)  Administrators are required to participate in

16  continuing education for a minimum of 12 contact hours every 2

17  years.

18         (5)  Staff involved with the management of medications

19  and assisting with the self-administration of medications

20  under s. 429.256 s. 400.4256 must complete a minimum of 4

21  additional hours of training provided by a registered nurse,

22  licensed pharmacist, or department staff. The department shall

23  establish by rule the minimum requirements of this additional

24  training.

25         (6)  Other facility staff shall participate in training

26  relevant to their job duties as specified by rule of the

27  department.

28         (7)  If the department or the agency determines that

29  there are problems in a facility that could be reduced through

30  specific staff training or education beyond that already

31  required under this section, the department or the agency may


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 1  require, and provide, or cause to be provided, the training or

 2  education of any personal care staff in the facility.

 3         (8)  The department shall adopt rules related to these

 4  training requirements, the competency test, necessary

 5  procedures, and competency test fees.

 6         Section 60.  Subsections (1), (10), and (18) of section

 7  400.462, Florida Statutes, are amended to read:

 8         400.462  Definitions.--As used in this part, the term:

 9         (1)  "Administrator" means a direct employee, as

10  defined in subsection (9). The administrator must be a

11  licensed physician, physician assistant, or registered nurse

12  licensed to practice in this state or an individual having at

13  least 1 year of supervisory or administrative experience in

14  home health care or in a facility licensed under chapter 395,

15  or under part II or part III of this chapter, or under part I

16  of chapter 429. An administrator may manage a maximum of five

17  licensed home health agencies located within one agency

18  service district or within an immediately contiguous county.

19  If the home health agency is licensed under this chapter and

20  is part of a retirement community that provides multiple

21  levels of care, an employee of the retirement community may

22  administer the home health agency and up to a maximum of four

23  entities licensed under this chapter or chapter 429 that are

24  owned, operated, or managed by the same corporate entity. An

25  administrator shall designate, in writing, for each licensed

26  entity, a qualified alternate administrator to serve during

27  absences.

28         (10)  "Director of nursing" means a registered nurse

29  who is a direct employee, as defined in subsection (9), of the

30  agency and who is a graduate of an approved school of nursing

31  and is licensed in this state; who has at least 1 year of


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 1  supervisory experience as a registered nurse; and who is

 2  responsible for overseeing the professional nursing and home

 3  health aid delivery of services of the agency. A director of

 4  nursing may be the director of a maximum of five licensed home

 5  health agencies operated by a related business entity and

 6  located within one agency service district or within an

 7  immediately contiguous county. If the home health agency is

 8  licensed under this chapter and is part of a retirement

 9  community that provides multiple levels of care, an employee

10  of the retirement community may serve as the director of

11  nursing of the home health agency and of up to four entities

12  licensed under this chapter or chapter 429 which are owned,

13  operated, or managed by the same corporate entity.

14         (18)  "Nurse registry" means any person that procures,

15  offers, promises, or attempts to secure health-care-related

16  contracts for registered nurses, licensed practical nurses,

17  certified nursing assistants, home health aides, companions,

18  or homemakers, who are compensated by fees as independent

19  contractors, including, but not limited to, contracts for the

20  provision of services to patients and contracts to provide

21  private duty or staffing services to health care facilities

22  licensed under chapter 395, or this chapter, or chapter 429 or

23  other business entities.

24         Section 61.  Paragraphs (h), (i), and (n) of subsection

25  (5) of section 400.464, Florida Statutes, are amended to read:

26         400.464  Home health agencies to be licensed;

27  expiration of license; exemptions; unlawful acts; penalties.--

28         (5)  The following are exempt from the licensure

29  requirements of this part:

30         (h)  The delivery of assisted living facility services

31  for which the assisted living facility is licensed under part


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 1  I III of this chapter 429, to serve its residents in its

 2  facility.

 3         (i)  The delivery of hospice services for which the

 4  hospice is licensed under part IV VI of this chapter, to serve

 5  hospice patients admitted to its service.

 6         (n)  The delivery of adult family care home services

 7  for which the adult family care home is licensed under part II

 8  VII of this chapter 429, to serve the residents in its

 9  facility.

10         Section 62.  Subsection (2) of section 400.497, Florida

11  Statutes, is amended to read:

12         400.497  Rules establishing minimum standards.--The

13  agency shall adopt, publish, and enforce rules to implement

14  this part, including, as applicable, ss. 400.506 and 400.509,

15  which must provide reasonable and fair minimum standards

16  relating to:

17         (2)  Shared staffing. The agency shall allow shared

18  staffing if the home health agency is part of a retirement

19  community that provides multiple levels of care, is located on

20  one campus, is licensed under this chapter or chapter 429, and

21  otherwise meets the requirements of law and rule.

22         Section 63.  Paragraph (c) of subsection (2) of section

23  400.556, Florida Statutes, is amended to read:

24         400.556  Denial, suspension, revocation of license;

25  administrative fines; investigations and inspections.--

26         (2)  Each of the following actions by the owner of an

27  adult day care center or by its operator or employee is a

28  ground for action by the agency against the owner of the

29  center or its operator or employee:

30         (c)  A failure of persons subject to level 2 background

31  screening under s. 429.174(1) s. 400.4174(1) to meet the


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 1  screening standards of s. 435.04, or the retention by the

 2  center of an employee subject to level 1 background screening

 3  standards under s. 429.174(2) s. 400.4174(2) who does not meet

 4  the screening standards of s. 435.03 and for whom exemptions

 5  from disqualification have not been provided by the agency.

 6         Section 64.  Paragraph (c) of subsection (2) of section

 7  400.5572, Florida Statutes, is amended to read:

 8         400.5572  Background screening.--

 9         (2)  The owner or administrator of an adult day care

10  center must conduct level 1 background screening as set forth

11  in chapter 435 on all employees hired on or after October 1,

12  1998, who provide basic services or supportive and optional

13  services to the participants. Such persons satisfy this

14  requirement if:

15         (c)  The person required to be screened is employed by

16  a corporation or business entity or related corporation or

17  business entity that owns, operates, or manages more than one

18  facility or agency licensed under this chapter or chapter 429,

19  and for whom a level 1 screening was conducted by the

20  corporation or business entity as a condition of initial or

21  continued employment.

22         Section 65.  Subsection (5) of section 400.601, Florida

23  Statutes, is amended to read:

24         400.601  Definitions.--As used in this part, the term:

25         (5)  "Hospice residential unit" means a homelike living

26  facility, other than a facility licensed under other parts of

27  this chapter, or under chapter 395, or under chapter 429, that

28  is operated by a hospice for the benefit of its patients and

29  is considered by a patient who lives there to be his or her

30  primary residence.

31  


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 1         Section 66.  Paragraph (c) of subsection (2) of section

 2  400.618, Florida Statutes, is amended to read:

 3         400.618  Definitions.--As used in this part, the term:

 4         (2)  "Adult family-care home" means a full-time,

 5  family-type living arrangement, in a private home, under which

 6  a person who owns or rents the home provides room, board, and

 7  personal care, on a 24-hour basis, for no more than five

 8  disabled adults or frail elders who are not relatives. The

 9  following family-type living arrangements are not required to

10  be licensed as an adult family-care home:

11         (c)  An establishment that is licensed as an assisted

12  living facility under chapter 429 part III.

13         Section 67.  Paragraph (f) of subsection (1) of section

14  400.628, Florida Statutes, is amended to read:

15         400.628  Residents' bill of rights.--

16         (1)  A resident of an adult family-care home may not be

17  deprived of any civil or legal rights, benefits, or privileges

18  guaranteed by law, the State Constitution, or the Constitution

19  of the United States solely by reason of status as a resident

20  of the home. Each resident has the right to:

21         (f)  Manage the resident's own financial affairs unless

22  the resident or the resident's guardian authorizes the

23  provider to provide safekeeping for funds in accordance with

24  procedures equivalent to those provided in s. 429.27 s.

25  400.427.

26         Section 68.  Paragraphs (c), (d), (e), and (f) of

27  subsection (5) of section 400.93, Florida Statutes, are

28  amended to read:

29         400.93  Licensure required; exemptions; unlawful acts;

30  penalties.--

31  


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 1         (5)  The following are exempt from home medical

 2  equipment provider licensure, unless they have a separate

 3  company, corporation, or division that is in the business of

 4  providing home medical equipment and services for sale or rent

 5  to consumers at their regular or temporary place of residence

 6  pursuant to the provisions of this part:

 7         (c)  Assisted living facilities licensed under chapter

 8  429 part III, when serving their residents.

 9         (d)  Home health agencies licensed under part III IV.

10         (e)  Hospices licensed under part IV VI.

11         (f)  Intermediate care facilities, homes for special

12  services, and transitional living facilities licensed under

13  part V VIII.

14         Section 69.  Paragraph (c) of subsection (10) of

15  section 400.962, Florida Statutes, is amended to read:

16         400.962  License required; license application.--

17         (10)

18         (c)  Proof of compliance with the level 2 background

19  screening requirements of chapter 435 which has been submitted

20  within the previous 5 years in compliance with any other

21  licensure requirements under this chapter or chapter 429

22  satisfies the requirements of paragraph (a). Proof of

23  compliance with background screening which has been submitted

24  within the previous 5 years to fulfill the requirements of the

25  Financial Services Commission and the Office of Insurance

26  Regulation under chapter 651 as part of an application for a

27  certificate of authority to operate a continuing care

28  retirement community satisfies the requirements for the

29  Department of Law Enforcement and Federal Bureau of

30  Investigation background checks.

31  


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 1         Section 70.  Paragraph (b) of subsection (1) of section

 2  400.980, Florida Statutes, is amended to read:

 3         400.980  Health care services pools.--

 4         (1)  As used in this section, the term:

 5         (b)  "Health care services pool" means any person,

 6  firm, corporation, partnership, or association engaged for

 7  hire in the business of providing temporary employment in

 8  health care facilities, residential facilities, and agencies

 9  for licensed, certified, or trained health care personnel

10  including, without limitation, nursing assistants, nurses'

11  aides, and orderlies. However, the term does not include

12  nursing registries, a facility licensed under this chapter or

13  chapter 429 400, a health care services pool established

14  within a health care facility to provide services only within

15  the confines of such facility, or any individual contractor

16  directly providing temporary services to a health care

17  facility without use or benefit of a contracting agent.

18         Section 71.  Paragraphs (a), (b), (c), and (d) of

19  subsection (4) of section 400.9905, Florida Statutes, are

20  amended to read:

21         400.9905  Definitions.--

22         (4)  "Clinic" means an entity at which health care

23  services are provided to individuals and which tenders charges

24  for reimbursement for such services, including a mobile clinic

25  and a portable equipment provider. For purposes of this part,

26  the term does not include and the licensure requirements of

27  this part do not apply to:

28         (a)  Entities licensed or registered by the state under

29  chapter 395; or entities licensed or registered by the state

30  and providing only health care services within the scope of

31  services authorized under their respective licenses granted


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 1  under ss. 383.30-383.335, chapter 390, chapter 394, chapter

 2  397, this chapter except part X XIII, chapter 429, chapter

 3  463, chapter 465, chapter 466, chapter 478, part I of chapter

 4  483, chapter 484, or chapter 651; end-stage renal disease

 5  providers authorized under 42 C.F.R. part 405, subpart U; or

 6  providers certified under 42 C.F.R. part 485, subpart B or

 7  subpart H; or any entity that provides neonatal or pediatric

 8  hospital-based health care services by licensed practitioners

 9  solely within a hospital licensed under chapter 395.

10         (b)  Entities that own, directly or indirectly,

11  entities licensed or registered by the state pursuant to

12  chapter 395; or entities that own, directly or indirectly,

13  entities licensed or registered by the state and providing

14  only health care services within the scope of services

15  authorized pursuant to their respective licenses granted under

16  ss. 383.30-383.335, chapter 390, chapter 394, chapter 397,

17  this chapter except part X XIII, chapter 429, chapter 463,

18  chapter 465, chapter 466, chapter 478, part I of chapter 483,

19  chapter 484, chapter 651; end-stage renal disease providers

20  authorized under 42 C.F.R. part 405, subpart U; or providers

21  certified under 42 C.F.R. part 485, subpart B or subpart H; or

22  any entity that provides neonatal or pediatric hospital-based

23  health care services by licensed practitioners solely within a

24  hospital licensed under chapter 395.

25         (c)  Entities that are owned, directly or indirectly,

26  by an entity licensed or registered by the state pursuant to

27  chapter 395; or entities that are owned, directly or

28  indirectly, by an entity licensed or registered by the state

29  and providing only health care services within the scope of

30  services authorized pursuant to their respective licenses

31  granted under ss. 383.30-383.335, chapter 390, chapter 394,


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 1  chapter 397, this chapter except part X XIII, chapter 429,

 2  chapter 463, chapter 465, chapter 466, chapter 478, part I of

 3  chapter 483, chapter 484, or chapter 651; end-stage renal

 4  disease providers authorized under 42 C.F.R. part 405, subpart

 5  U; or providers certified under 42 C.F.R. part 485, subpart B

 6  or subpart H; or any entity that provides neonatal or

 7  pediatric hospital-based health care services by licensed

 8  practitioners solely within a hospital under chapter 395.

 9         (d)  Entities that are under common ownership, directly

10  or indirectly, with an entity licensed or registered by the

11  state pursuant to chapter 395; or entities that are under

12  common ownership, directly or indirectly, with an entity

13  licensed or registered by the state and providing only health

14  care services within the scope of services authorized pursuant

15  to their respective licenses granted under ss. 383.30-383.335,

16  chapter 390, chapter 394, chapter 397, this chapter except

17  part X XIII, chapter 429, chapter 463, chapter 465, chapter

18  466, chapter 478, part I of chapter 483, chapter 484, or

19  chapter 651; end-stage renal disease providers authorized

20  under 42 C.F.R. part 405, subpart U; or providers certified

21  under 42 C.F.R. part 485, subpart B or subpart H; or any

22  entity that provides neonatal or pediatric hospital-based

23  health care services by licensed practitioners solely within a

24  hospital licensed under chapter 395.

25         Section 72.  Subsection (12) of section 401.23, Florida

26  Statutes, is amended to read:

27         401.23  Definitions.--As used in this part, the term:

28         (12)  "Interfacility transfer" means the transportation

29  by ambulance of a patient between two facilities licensed

30  under chapter 393, chapter 395, or chapter 400, or chapter

31  429, pursuant to this part.


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 1         Section 73.  Paragraph (b) of subsection (2) of section

 2  402.164, Florida Statutes, is amended to read:

 3         402.164  Legislative intent; definitions.--

 4         (2)  As used in ss. 402.164-402.167, the term:

 5         (b)  "Client" means a client as defined in s. 393.063,

 6  s. 394.67, s. 397.311, or s. 400.960, a forensic client or

 7  client as defined in s. 916.106, a child or youth as defined

 8  in s. 39.01, a child as defined in s. 827.01, a family as

 9  defined in s. 414.0252, a participant as defined in s.

10  400.551, a resident as defined in s. 429.02 s. 400.402, a

11  Medicaid recipient or recipient as defined in s. 409.901, a

12  child receiving child care as defined in s. 402.302, a

13  disabled adult as defined in s. 410.032 or s. 410.603, or a

14  victim as defined in s. 39.01 or s. 415.102 as each definition

15  applies within its respective chapter.

16         Section 74.  Subsection (10) of section 408.032,

17  Florida Statutes, is amended to read:

18         408.032  Definitions relating to Health Facility and

19  Services Development Act.--As used in ss. 408.031-408.045, the

20  term:

21         (10)  "Hospice" or "hospice program" means a hospice as

22  defined in part IV VI of chapter 400.

23         Section 75.  Paragraph (b) of subsection (2) of section

24  408.033, Florida Statutes, is amended to read:

25         408.033  Local and state health planning.--

26         (2)  FUNDING.--

27         (b)1.  A hospital licensed under chapter 395, a nursing

28  home licensed under chapter 400, and an assisted living

29  facility licensed under chapter 429 400 shall be assessed an

30  annual fee based on number of beds.

31  


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 1         2.  All other facilities and organizations listed in

 2  paragraph (a) shall each be assessed an annual fee of $150.

 3         3.  Facilities operated by the Department of Children

 4  and Family Services, the Department of Health, or the

 5  Department of Corrections and any hospital which meets the

 6  definition of rural hospital pursuant to s. 395.602 are exempt

 7  from the assessment required in this subsection.

 8         Section 76.  Subsection (2) of section 408.034, Florida

 9  Statutes, is amended to read:

10         408.034  Duties and responsibilities of agency;

11  rules.--

12         (2)  In the exercise of its authority to issue licenses

13  to health care facilities and health service providers, as

14  provided under chapters 393 and, 395, and parts II and IV VI

15  of chapter 400, the agency may not issue a license to any

16  health care facility or health service provider that fails to

17  receive a certificate of need or an exemption for the licensed

18  facility or service.

19         Section 77.  Subsections (28) and (29) of section

20  408.07, Florida Statutes, are amended to read:

21         408.07  Definitions.--As used in this chapter, with the

22  exception of ss. 408.031-408.045, the term:

23         (28)  "Home health agency" means an organization

24  licensed under part III IV of chapter 400.

25         (29)  "Hospice" means an organization licensed under

26  part IV VI of chapter 400.

27         Section 78.  Subsection (3) of section 408.831, Florida

28  Statutes, is amended to read:

29         408.831  Denial, suspension, or revocation of a

30  license, registration, certificate, or application.--

31  


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 1         (3)  This section provides standards of enforcement

 2  applicable to all entities licensed or regulated by the Agency

 3  for Health Care Administration. This section controls over any

 4  conflicting provisions of chapters 39, 381, 383, 390, 391,

 5  393, 394, 395, 400, 408, 429, 468, 483, and 641 or rules

 6  adopted pursuant to those chapters.

 7         Section 79.  Subsection (2) of section 409.212, Florida

 8  Statutes, is amended to read:

 9         409.212  Optional supplementation.--

10         (2)  The base rate of payment for optional state

11  supplementation shall be established by the department within

12  funds appropriated. Additional amounts may be provided for

13  mental health residents in facilities designed to provide

14  limited mental health services as provided for in s. 429.075

15  s. 400.4075. The base rate of payment does not include the

16  personal needs allowance.

17         Section 80.  Subsection (4) of section 409.905, Florida

18  Statutes, is amended to read:

19         409.905  Mandatory Medicaid services.--The agency may

20  make payments for the following services, which are required

21  of the state by Title XIX of the Social Security Act,

22  furnished by Medicaid providers to recipients who are

23  determined to be eligible on the dates on which the services

24  were provided. Any service under this section shall be

25  provided only when medically necessary and in accordance with

26  state and federal law. Mandatory services rendered by

27  providers in mobile units to Medicaid recipients may be

28  restricted by the agency. Nothing in this section shall be

29  construed to prevent or limit the agency from adjusting fees,

30  reimbursement rates, lengths of stay, number of visits, number

31  of services, or any other adjustments necessary to comply with


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 1  the availability of moneys and any limitations or directions

 2  provided for in the General Appropriations Act or chapter 216.

 3         (4)  HOME HEALTH CARE SERVICES.--The agency shall pay

 4  for nursing and home health aide services, supplies,

 5  appliances, and durable medical equipment, necessary to assist

 6  a recipient living at home. An entity that provides services

 7  pursuant to this subsection shall be licensed under part III

 8  IV of chapter 400. These services, equipment, and supplies, or

 9  reimbursement therefor, may be limited as provided in the

10  General Appropriations Act and do not include services,

11  equipment, or supplies provided to a person residing in a

12  hospital or nursing facility.

13         (a)  In providing home health care services, the agency

14  may require prior authorization of care based on diagnosis.

15         (b)  The agency shall implement a comprehensive

16  utilization management program that requires prior

17  authorization of all private duty nursing services, an

18  individualized treatment plan that includes information about

19  medication and treatment orders, treatment goals, methods of

20  care to be used, and plans for care coordination by nurses and

21  other health professionals. The utilization management program

22  shall also include a process for periodically reviewing the

23  ongoing use of private duty nursing services. The assessment

24  of need shall be based on a child's condition, family support

25  and care supplements, a family's ability to provide care, and

26  a family's and child's schedule regarding work, school, sleep,

27  and care for other family dependents. When implemented, the

28  private duty nursing utilization management program shall

29  replace the current authorization program used by the Agency

30  for Health Care Administration and the Children's Medical

31  Services program of the Department of Health. The agency may


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 1  competitively bid on a contract to select a qualified

 2  organization to provide utilization management of private duty

 3  nursing services. The agency is authorized to seek federal

 4  waivers to implement this initiative.

 5         Section 81.  Subsection (14) of section 409.906,

 6  Florida Statutes, is amended to read:

 7         409.906  Optional Medicaid services.--Subject to

 8  specific appropriations, the agency may make payments for

 9  services which are optional to the state under Title XIX of

10  the Social Security Act and are furnished by Medicaid

11  providers to recipients who are determined to be eligible on

12  the dates on which the services were provided. Any optional

13  service that is provided shall be provided only when medically

14  necessary and in accordance with state and federal law.

15  Optional services rendered by providers in mobile units to

16  Medicaid recipients may be restricted or prohibited by the

17  agency. Nothing in this section shall be construed to prevent

18  or limit the agency from adjusting fees, reimbursement rates,

19  lengths of stay, number of visits, or number of services, or

20  making any other adjustments necessary to comply with the

21  availability of moneys and any limitations or directions

22  provided for in the General Appropriations Act or chapter 216.

23  If necessary to safeguard the state's systems of providing

24  services to elderly and disabled persons and subject to the

25  notice and review provisions of s. 216.177, the Governor may

26  direct the Agency for Health Care Administration to amend the

27  Medicaid state plan to delete the optional Medicaid service

28  known as "Intermediate Care Facilities for the Developmentally

29  Disabled." Optional services may include:

30         (14)  HOSPICE CARE SERVICES.--The agency may pay for

31  all reasonable and necessary services for the palliation or


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 1  management of a recipient's terminal illness, if the services

 2  are provided by a hospice that is licensed under part IV VI of

 3  chapter 400 and meets Medicare certification requirements.

 4         Section 82.  Subsection (7) and paragraph (a) of

 5  subsection (8) of section 409.907, Florida Statutes, are

 6  amended to read:

 7         409.907  Medicaid provider agreements.--The agency may

 8  make payments for medical assistance and related services

 9  rendered to Medicaid recipients only to an individual or

10  entity who has a provider agreement in effect with the agency,

11  who is performing services or supplying goods in accordance

12  with federal, state, and local law, and who agrees that no

13  person shall, on the grounds of handicap, race, color, or

14  national origin, or for any other reason, be subjected to

15  discrimination under any program or activity for which the

16  provider receives payment from the agency.

17         (7)  The agency may require, as a condition of

18  participating in the Medicaid program and before entering into

19  the provider agreement, that the provider submit information,

20  in an initial and any required renewal applications,

21  concerning the professional, business, and personal background

22  of the provider and permit an onsite inspection of the

23  provider's service location by agency staff or other personnel

24  designated by the agency to perform this function. The agency

25  shall perform a random onsite inspection, within 60 days after

26  receipt of a fully complete new provider's application, of the

27  provider's service location prior to making its first payment

28  to the provider for Medicaid services to determine the

29  applicant's ability to provide the services that the applicant

30  is proposing to provide for Medicaid reimbursement. The agency

31  is not required to perform an onsite inspection of a provider


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 1  or program that is licensed by the agency, that provides

 2  services under waiver programs for home and community-based

 3  services, or that is licensed as a medical foster home by the

 4  Department of Children and Family Services. As a continuing

 5  condition of participation in the Medicaid program, a provider

 6  shall immediately notify the agency of any current or pending

 7  bankruptcy filing. Before entering into the provider

 8  agreement, or as a condition of continuing participation in

 9  the Medicaid program, the agency may also require that

10  Medicaid providers reimbursed on a fee-for-services basis or

11  fee schedule basis which is not cost-based, post a surety bond

12  not to exceed $50,000 or the total amount billed by the

13  provider to the program during the current or most recent

14  calendar year, whichever is greater. For new providers, the

15  amount of the surety bond shall be determined by the agency

16  based on the provider's estimate of its first year's billing.

17  If the provider's billing during the first year exceeds the

18  bond amount, the agency may require the provider to acquire an

19  additional bond equal to the actual billing level of the

20  provider. A provider's bond shall not exceed $50,000 if a

21  physician or group of physicians licensed under chapter 458,

22  chapter 459, or chapter 460 has a 50 percent or greater

23  ownership interest in the provider or if the provider is an

24  assisted living facility licensed under part III of chapter

25  429 400. The bonds permitted by this section are in addition

26  to the bonds referenced in s. 400.179(5)(d). If the provider

27  is a corporation, partnership, association, or other entity,

28  the agency may require the provider to submit information

29  concerning the background of that entity and of any principal

30  of the entity, including any partner or shareholder having an

31  ownership interest in the entity equal to 5 percent or


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 1  greater, and any treating provider who participates in or

 2  intends to participate in Medicaid through the entity. The

 3  information must include:

 4         (a)  Proof of holding a valid license or operating

 5  certificate, as applicable, if required by the state or local

 6  jurisdiction in which the provider is located or if required

 7  by the Federal Government.

 8         (b)  Information concerning any prior violation, fine,

 9  suspension, termination, or other administrative action taken

10  under the Medicaid laws, rules, or regulations of this state

11  or of any other state or the Federal Government; any prior

12  violation of the laws, rules, or regulations relating to the

13  Medicare program; any prior violation of the rules or

14  regulations of any other public or private insurer; and any

15  prior violation of the laws, rules, or regulations of any

16  regulatory body of this or any other state.

17         (c)  Full and accurate disclosure of any financial or

18  ownership interest that the provider, or any principal,

19  partner, or major shareholder thereof, may hold in any other

20  Medicaid provider or health care related entity or any other

21  entity that is licensed by the state to provide health or

22  residential care and treatment to persons.

23         (d)  If a group provider, identification of all members

24  of the group and attestation that all members of the group are

25  enrolled in or have applied to enroll in the Medicaid program.

26         (8)(a)  Each provider, or each principal of the

27  provider if the provider is a corporation, partnership,

28  association, or other entity, seeking to participate in the

29  Medicaid program must submit a complete set of his or her

30  fingerprints to the agency for the purpose of conducting a

31  criminal history record check.  Principals of the provider


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 1  include any officer, director, billing agent, managing

 2  employee, or affiliated person, or any partner or shareholder

 3  who has an ownership interest equal to 5 percent or more in

 4  the provider. However, a director of a not-for-profit

 5  corporation or organization is not a principal for purposes of

 6  a background investigation as required by this section if the

 7  director: serves solely in a voluntary capacity for the

 8  corporation or organization, does not regularly take part in

 9  the day-to-day operational decisions of the corporation or

10  organization, receives no remuneration from the not-for-profit

11  corporation or organization for his or her service on the

12  board of directors, has no financial interest in the

13  not-for-profit corporation or organization, and has no family

14  members with a financial interest in the not-for-profit

15  corporation or organization; and if the director submits an

16  affidavit, under penalty of perjury, to this effect to the

17  agency and the not-for-profit corporation or organization

18  submits an affidavit, under penalty of perjury, to this effect

19  to the agency as part of the corporation's or organization's

20  Medicaid provider agreement application. Notwithstanding the

21  above, the agency may require a background check for any

22  person reasonably suspected by the agency to have been

23  convicted of a crime. This subsection shall not apply to:

24         1.  A hospital licensed under chapter 395;

25         2.  A nursing home licensed under chapter 400;

26         3.  A hospice licensed under chapter 400;

27         4.  An assisted living facility licensed under chapter

28  429; 400.

29         5.  A unit of local government, except that

30  requirements of this subsection apply to nongovernmental

31  providers and entities when contracting with the local


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 1  government to provide Medicaid services. The actual cost of

 2  the state and national criminal history record checks must be

 3  borne by the nongovernmental provider or entity; or

 4         6.  Any business that derives more than 50 percent of

 5  its revenue from the sale of goods to the final consumer, and

 6  the business or its controlling parent either is required to

 7  file a form 10-K or other similar statement with the

 8  Securities and Exchange Commission or has a net worth of $50

 9  million or more.

10         Section 83.  Paragraph (c) of subsection (5) of section

11  409.912, Florida Statutes, is amended to read:

12         409.912  Cost-effective purchasing of health care.--The

13  agency shall purchase goods and services for Medicaid

14  recipients in the most cost-effective manner consistent with

15  the delivery of quality medical care. To ensure that medical

16  services are effectively utilized, the agency may, in any

17  case, require a confirmation or second physician's opinion of

18  the correct diagnosis for purposes of authorizing future

19  services under the Medicaid program. This section does not

20  restrict access to emergency services or poststabilization

21  care services as defined in 42 C.F.R. part 438.114. Such

22  confirmation or second opinion shall be rendered in a manner

23  approved by the agency. The agency shall maximize the use of

24  prepaid per capita and prepaid aggregate fixed-sum basis

25  services when appropriate and other alternative service

26  delivery and reimbursement methodologies, including

27  competitive bidding pursuant to s. 287.057, designed to

28  facilitate the cost-effective purchase of a case-managed

29  continuum of care. The agency shall also require providers to

30  minimize the exposure of recipients to the need for acute

31  inpatient, custodial, and other institutional care and the


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 1  inappropriate or unnecessary use of high-cost services. The

 2  agency shall contract with a vendor to monitor and evaluate

 3  the clinical practice patterns of providers in order to

 4  identify trends that are outside the normal practice patterns

 5  of a provider's professional peers or the national guidelines

 6  of a provider's professional association. The vendor must be

 7  able to provide information and counseling to a provider whose

 8  practice patterns are outside the norms, in consultation with

 9  the agency, to improve patient care and reduce inappropriate

10  utilization. The agency may mandate prior authorization, drug

11  therapy management, or disease management participation for

12  certain populations of Medicaid beneficiaries, certain drug

13  classes, or particular drugs to prevent fraud, abuse, overuse,

14  and possible dangerous drug interactions. The Pharmaceutical

15  and Therapeutics Committee shall make recommendations to the

16  agency on drugs for which prior authorization is required. The

17  agency shall inform the Pharmaceutical and Therapeutics

18  Committee of its decisions regarding drugs subject to prior

19  authorization. The agency is authorized to limit the entities

20  it contracts with or enrolls as Medicaid providers by

21  developing a provider network through provider credentialing.

22  The agency may competitively bid single-source-provider

23  contracts if procurement of goods or services results in

24  demonstrated cost savings to the state without limiting access

25  to care. The agency may limit its network based on the

26  assessment of beneficiary access to care, provider

27  availability, provider quality standards, time and distance

28  standards for access to care, the cultural competence of the

29  provider network, demographic characteristics of Medicaid

30  beneficiaries, practice and provider-to-beneficiary standards,

31  appointment wait times, beneficiary use of services, provider


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 1  turnover, provider profiling, provider licensure history,

 2  previous program integrity investigations and findings, peer

 3  review, provider Medicaid policy and billing compliance

 4  records, clinical and medical record audits, and other

 5  factors. Providers shall not be entitled to enrollment in the

 6  Medicaid provider network. The agency shall determine

 7  instances in which allowing Medicaid beneficiaries to purchase

 8  durable medical equipment and other goods is less expensive to

 9  the Medicaid program than long-term rental of the equipment or

10  goods. The agency may establish rules to facilitate purchases

11  in lieu of long-term rentals in order to protect against fraud

12  and abuse in the Medicaid program as defined in s. 409.913.

13  The agency may seek federal waivers necessary to administer

14  these policies.

15         (5)  By December 1, 2005, the Agency for Health Care

16  Administration, in partnership with the Department of Elderly

17  Affairs, shall create an integrated, fixed-payment delivery

18  system for Medicaid recipients who are 60 years of age or

19  older. The Agency for Health Care Administration shall

20  implement the integrated system initially on a pilot basis in

21  two areas of the state. In one of the areas enrollment shall

22  be on a voluntary basis. The program must transfer all

23  Medicaid services for eligible elderly individuals who choose

24  to participate into an integrated-care management model

25  designed to serve Medicaid recipients in the community. The

26  program must combine all funding for Medicaid services

27  provided to individuals 60 years of age or older into the

28  integrated system, including funds for Medicaid home and

29  community-based waiver services; all Medicaid services

30  authorized in ss. 409.905 and 409.906, excluding funds for

31  Medicaid nursing home services unless the agency is able to


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 1  demonstrate how the integration of the funds will improve

 2  coordinated care for these services in a less costly manner;

 3  and Medicare coinsurance and deductibles for persons dually

 4  eligible for Medicaid and Medicare as prescribed in s.

 5  409.908(13).

 6         (c)  The agency must ensure that the

 7  capitation-rate-setting methodology for the integrated system

 8  is actuarially sound and reflects the intent to provide

 9  quality care in the least restrictive setting. The agency must

10  also require integrated-system providers to develop a

11  credentialing system for service providers and to contract

12  with all Gold Seal nursing homes, where feasible, and exclude,

13  where feasible, chronically poor-performing facilities and

14  providers as defined by the agency. The integrated system must

15  provide that if the recipient resides in a noncontracted

16  residential facility licensed under chapter 400 or chapter 429

17  at the time the integrated system is initiated, the recipient

18  must be permitted to continue to reside in the noncontracted

19  facility as long as the recipient desires. The integrated

20  system must also provide that, in the absence of a contract

21  between the integrated-system provider and the residential

22  facility licensed under chapter 400 or chapter 429, current

23  Medicaid rates must prevail. The agency and the Department of

24  Elderly Affairs must jointly develop procedures to manage the

25  services provided through the integrated system in order to

26  ensure quality and recipient choice.

27         Section 84.  Section 410.031, Florida Statutes, is

28  amended to read:

29         410.031  Legislative intent.--It is the intent of the

30  Legislature to encourage the provision of care for disabled

31  adults in family-type living arrangements in private homes as


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 1  an alternative to institutional or nursing home care for such

 2  persons. The provisions of ss. 410.031-410.036 are intended to

 3  be supplemental to the provisions of chapters chapter 400 and

 4  429, relating to the licensing and regulation of nursing homes

 5  and assisted living facilities, and do not exempt any person

 6  who is otherwise subject to regulation under chapter 400 or

 7  chapter 429.

 8         Section 85.  Section 410.034, Florida Statutes, is

 9  amended to read:

10         410.034  Department determination of fitness to provide

11  home care.--In accordance with s. 429.02 s. 400.402, a person

12  caring for an adult who is related to such person by blood or

13  marriage is not subject to the Assisted Living Facilities Act.

14  If, however, the person who plans to provide home care under

15  this act is found by the department to be unable to provide

16  this care, the department shall notify the person wishing to

17  provide home care of this determination, and the person shall

18  not be eligible for subsidy payments under ss.

19  410.031-410.036.

20         Section 86.  Section 415.1111, Florida Statutes, is

21  amended to read:

22         415.1111  Civil actions.--A vulnerable adult who has

23  been abused, neglected, or exploited as specified in this

24  chapter has a cause of action against any perpetrator and may

25  recover actual and punitive damages for such abuse, neglect,

26  or exploitation.  The action may be brought by the vulnerable

27  adult, or that person's guardian, by a person or organization

28  acting on behalf of the vulnerable adult with the consent of

29  that person or that person's guardian, or by the personal

30  representative of the estate of a deceased victim without

31  regard to whether the cause of death resulted from the abuse,


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 1  neglect, or exploitation. The action may be brought in any

 2  court of competent jurisdiction to enforce such action and to

 3  recover actual and punitive damages for any deprivation of or

 4  infringement on the rights of a vulnerable adult. A party who

 5  prevails in any such action may be entitled to recover

 6  reasonable attorney's fees, costs of the action, and damages.

 7  The remedies provided in this section are in addition to and

 8  cumulative with other legal and administrative remedies

 9  available to a vulnerable adult. Notwithstanding the

10  foregoing, any civil action for damages against any licensee

11  or entity who establishes, controls, conducts, manages, or

12  operates a facility licensed under part II of chapter 400

13  relating to its operation of the licensed facility shall be

14  brought pursuant to s. 400.023, or against any licensee or

15  entity who establishes, controls, conducts, manages, or

16  operates a facility licensed under part I III of chapter 429

17  400 relating to its operation of the licensed facility shall

18  be brought pursuant to s. 429.29 s. 400.429. Such licensee or

19  entity shall not be vicariously liable for the acts or

20  omissions of its employees or agents or any other third party

21  in an action brought under this section.

22         Section 87.  Section 430.601, Florida Statutes, is

23  amended to read:

24         430.601  Home care for the elderly; legislative

25  intent.--It is the intent of the Legislature to encourage the

26  provision of care for the elderly in family-type living

27  arrangements in private homes as an alternative to

28  institutional or nursing home care for such persons. The

29  provisions of ss. 430.601-430.606 are intended to be

30  supplemental to the provisions of chapters chapter 400 and

31  429, relating to the licensing and regulation of nursing homes


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 1  and assisted living facilities, and do not exempt any person

 2  who is otherwise subject to regulation under those chapters

 3  the provisions of that chapter.

 4         Section 88.  Subsection (7) of section 430.703, Florida

 5  Statutes, is amended to read:

 6         430.703  Definitions.--As used in this act, the term:

 7         (7)  "Other qualified provider" means an entity

 8  licensed under chapter 400 or chapter 429 that demonstrates a

 9  long-term care continuum and meets all requirements pursuant

10  to an interagency agreement between the agency and the

11  department.

12         Section 89.  Paragraph (a) of subsection (3) of section

13  435.03, Florida Statutes, is amended to read:

14         435.03  Level 1 screening standards.--

15         (3)  Standards must also ensure that the person:

16         (a)  For employees and employers licensed or registered

17  pursuant to chapter 400 or chapter 429, and for employees and

18  employers of developmental services institutions as defined in

19  s. 393.063, intermediate care facilities for the

20  developmentally disabled as defined in s. 393.063, and mental

21  health treatment facilities as defined in s. 394.455, meets

22  the requirements of this chapter.

23         Section 90.  Paragraph (a) of subsection (4) of section

24  435.04, Florida Statutes, is amended to read:

25         435.04  Level 2 screening standards.--

26         (4)  Standards must also ensure that the person:

27         (a)  For employees or employers licensed or registered

28  pursuant to chapter 400 or chapter 429, does not have a

29  confirmed report of abuse, neglect, or exploitation as defined

30  in s. 415.102(6), which has been uncontested or upheld under

31  s. 415.103.


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 1         Section 91.  Paragraph (g) of subsection (1) of section

 2  440.13, Florida Statutes, is amended to read:

 3         440.13  Medical services and supplies; penalty for

 4  violations; limitations.--

 5         (1)  DEFINITIONS.--As used in this section, the term:

 6         (g)  "Health care facility" means any hospital licensed

 7  under chapter 395 and any health care institution licensed

 8  under chapter 400 or chapter 429.

 9         Section 92.  Subsection (1) of section 465.0235,

10  Florida Statutes, is amended to read:

11         465.0235  Automated pharmacy systems used by long-term

12  care facilities, hospices, or state correctional

13  institutions.--

14         (1)  A pharmacy may provide pharmacy services to a

15  long-term care facility or hospice licensed under chapter 400

16  or chapter 429 or a state correctional institution operated

17  under chapter 944 through the use of an automated pharmacy

18  system that need not be located at the same location as the

19  pharmacy.

20         Section 93.  Subsection (8) of section 468.1685,

21  Florida Statutes, is amended to read:

22         468.1685  Powers and duties of board and

23  department.--It is the function and duty of the board,

24  together with the department, to:

25         (8)  Set up procedures by rule for advising and acting

26  together with the Department of Health and other boards of

27  other health professions in matters affecting procedures and

28  methods for effectively enforcing the purpose of this part and

29  the administration of chapters chapter 400 and 429.

30         Section 94.  Paragraph (k) of subsection (1) of section

31  468.505, Florida Statutes, is amended to read:


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 1         468.505  Exemptions; exceptions.--

 2         (1)  Nothing in this part may be construed as

 3  prohibiting or restricting the practice, services, or

 4  activities of:

 5         (k)  A person employed by a hospital licensed under

 6  chapter 395, or by a nursing home or assisted living facility

 7  licensed under part II or part III of chapter 400, by an

 8  assisted living facility licensed under chapter 429, or by a

 9  continuing care facility certified under chapter 651, if the

10  person is employed in compliance with the laws and rules

11  adopted thereunder regarding the operation of its dietetic

12  department.

13         Section 95.  Subsection (11) of section 477.025,

14  Florida Statutes, is amended to read:

15         477.025  Cosmetology salons; specialty salons;

16  requisites; licensure; inspection; mobile cosmetology

17  salons.--

18         (11)  Facilities licensed under part II or part III of

19  chapter 400 or under part I of chapter 429 are shall be exempt

20  from the provisions of this section, and a cosmetologist

21  licensed pursuant to s. 477.019 may provide salon services

22  exclusively for facility residents.

23         Section 96.  Paragraph (a) of subsection (2) of section

24  509.032, Florida Statutes, is amended to read:

25         509.032  Duties.--

26         (2)  INSPECTION OF PREMISES.--

27         (a)  The division has responsibility and jurisdiction

28  for all inspections required by this chapter.  The division

29  has responsibility for quality assurance.  Each licensed

30  establishment shall be inspected at least biannually, except

31  for transient and nontransient apartments, which shall be


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 1  inspected at least annually, and shall be inspected at such

 2  other times as the division determines is necessary to ensure

 3  the public's health, safety, and welfare.  The division shall

 4  establish a system to determine inspection frequency.  Public

 5  lodging units classified as resort condominiums or resort

 6  dwellings are not subject to this requirement, but shall be

 7  made available to the division upon request.  If, during the

 8  inspection of a public lodging establishment classified for

 9  renting to transient or nontransient tenants, an inspector

10  identifies vulnerable adults who appear to be victims of

11  neglect, as defined in s. 415.102, or, in the case of a

12  building that is not equipped with automatic sprinkler

13  systems, tenants or clients who may be unable to self-preserve

14  in an emergency, the division shall convene meetings with the

15  following agencies as appropriate to the individual situation:

16  the Department of Health, the Department of Elderly Affairs,

17  the area agency on aging, the local fire marshal, the landlord

18  and affected tenants and clients, and other relevant

19  organizations, to develop a plan which improves the prospects

20  for safety of affected residents and, if necessary, identifies

21  alternative living arrangements such as facilities licensed

22  under part II or part III of chapter 400 or under chapter 429.

23         Section 97.  Subsection (1) of section 509.241, Florida

24  Statutes, is amended to read:

25         509.241  Licenses required; exceptions.--

26         (1)  LICENSES; ANNUAL RENEWALS.--Each public lodging

27  establishment and public food service establishment shall

28  obtain a license from the division. Such license may not be

29  transferred from one place or individual to another. It shall

30  be a misdemeanor of the second degree, punishable as provided

31  in s. 775.082 or s. 775.083, for such an establishment to


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 1  operate without a license. Local law enforcement shall provide

 2  immediate assistance in pursuing an illegally operating

 3  establishment. The division may refuse a license, or a renewal

 4  thereof, to any establishment that is not constructed and

 5  maintained in accordance with law and with the rules of the

 6  division. The division may refuse to issue a license, or a

 7  renewal thereof, to any establishment an operator of which,

 8  within the preceding 5 years, has been adjudicated guilty of,

 9  or has forfeited a bond when charged with, any crime

10  reflecting on professional character, including soliciting for

11  prostitution, pandering, letting premises for prostitution,

12  keeping a disorderly place, or illegally dealing in controlled

13  substances as defined in chapter 893, whether in this state or

14  in any other jurisdiction within the United States, or has had

15  a license denied, revoked, or suspended pursuant to s. 429.14

16  s. 400.414. Licenses shall be renewed annually, and the

17  division shall adopt a rule establishing a staggered schedule

18  for license renewals. If any license expires while

19  administrative charges are pending against the license, the

20  proceedings against the license shall continue to conclusion

21  as if the license were still in effect.

22         Section 98.  Subsection (1) of section 627.732, Florida

23  Statutes, is amended to read:

24         627.732  Definitions.--As used in ss. 627.730-627.7405,

25  the term:

26         (1)  "Broker" means any person not possessing a license

27  under chapter 395, chapter 400, chapter 429, chapter 458,

28  chapter 459, chapter 460, chapter 461, or chapter 641 who

29  charges or receives compensation for any use of medical

30  equipment and is not the 100-percent owner or the 100-percent

31  lessee of such equipment. For purposes of this section, such


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 1  owner or lessee may be an individual, a corporation, a

 2  partnership, or any other entity and any of its

 3  100-percent-owned affiliates and subsidiaries. For purposes of

 4  this subsection, the term "lessee" means a long-term lessee

 5  under a capital or operating lease, but does not include a

 6  part-time lessee. The term "broker" does not include a

 7  hospital or physician management company whose medical

 8  equipment is ancillary to the practices managed, a debt

 9  collection agency, or an entity that has contracted with the

10  insurer to obtain a discounted rate for such services; nor

11  does the term include a management company that has contracted

12  to provide general management services for a licensed

13  physician or health care facility and whose compensation is

14  not materially affected by the usage or frequency of usage of

15  medical equipment or an entity that is 100-percent owned by

16  one or more hospitals or physicians. The term "broker" does

17  not include a person or entity that certifies, upon request of

18  an insurer, that:

19         (a)  It is a clinic licensed under ss. 400.990-400.995;

20         (b)  It is a 100-percent owner of medical equipment;

21  and

22         (c)  The owner's only part-time lease of medical

23  equipment for personal injury protection patients is on a

24  temporary basis not to exceed 30 days in a 12-month period,

25  and such lease is solely for the purposes of necessary repair

26  or maintenance of the 100-percent-owned medical equipment or

27  pending the arrival and installation of the newly purchased or

28  a replacement for the 100-percent-owned medical equipment, or

29  for patients for whom, because of physical size or

30  claustrophobia, it is determined by the medical director or

31  clinical director to be medically necessary that the test be


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 1  performed in medical equipment that is open-style. The leased

 2  medical equipment cannot be used by patients who are not

 3  patients of the registered clinic for medical treatment of

 4  services. Any person or entity making a false certification

 5  under this subsection commits insurance fraud as defined in s.

 6  817.234. However, the 30-day period provided in this paragraph

 7  may be extended for an additional 60 days as applicable to

 8  magnetic resonance imaging equipment if the owner certifies

 9  that the extension otherwise complies with this paragraph.

10         Section 99.  Subsection (2) of section 651.011, Florida

11  Statutes, is amended to read:

12         651.011  Definitions.--For the purposes of this

13  chapter, the term:

14         (2)  "Continuing care" or "care" means furnishing

15  pursuant to a contract shelter and either nursing care or

16  personal services as defined in s. 429.02 s. 400.402, whether

17  such nursing care or personal services are provided in the

18  facility or in another setting designated by the contract for

19  continuing care, to an individual not related by consanguinity

20  or affinity to the provider furnishing such care, upon payment

21  of an entrance fee. Other personal services provided shall be

22  designated in the continuing care contract. Contracts to

23  provide continuing care include agreements to provide care for

24  any duration, including contracts that are terminable by

25  either party.

26         Section 100.  Paragraph (c) of subsection (2) of

27  section 651.022, Florida Statutes, is amended to read:

28         651.022  Provisional certificate of authority;

29  application.--

30  

31  


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 1         (2)  The application for a provisional certificate of

 2  authority shall be on a form prescribed by the commission and

 3  shall contain the following information:

 4         (c)1.  Evidence that the applicant is reputable and of

 5  responsible character.  If the applicant is a firm,

 6  association, organization, partnership, business trust,

 7  corporation, or company, the form shall require evidence that

 8  the members or shareholders are reputable and of responsible

 9  character, and the person in charge of providing care under a

10  certificate of authority shall likewise be required to produce

11  evidence of being reputable and of responsible character.

12         2.  Evidence satisfactory to the office of the ability

13  of the applicant to comply with the provisions of this chapter

14  and with rules adopted by the commission pursuant to this

15  chapter.

16         3.  A statement of whether a person identified in the

17  application for a provisional certificate of authority or the

18  administrator or manager of the facility, if such person has

19  been designated, or any such person living in the same

20  location:

21         a.  Has been convicted of a felony or has pleaded nolo

22  contendere to a felony charge, or has been held liable or has

23  been enjoined in a civil action by final judgment, if the

24  felony or civil action involved fraud, embezzlement,

25  fraudulent conversion, or misappropriation of property.

26         b.  Is subject to a currently effective injunctive or

27  restrictive order or federal or state administrative order

28  relating to business activity or health care as a result of an

29  action brought by a public agency or department, including,

30  without limitation, an action affecting a license under

31  chapter 400 or chapter 429.


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 1  

 2  The statement shall set forth the court or agency, the date of

 3  conviction or judgment, and the penalty imposed or damages

 4  assessed, or the date, nature, and issuer of the

 5  order.  Before determining whether a provisional certificate

 6  of authority is to be issued, the office may make an inquiry

 7  to determine the accuracy of the information submitted

 8  pursuant to subparagraphs 1. and 2.

 9         Section 101.  Subsection (6) of section 651.023,

10  Florida Statutes, is amended to read:

11         651.023  Certificate of authority; application.--

12         (6)  The timeframes provided under s. 651.022(5) and

13  (6) apply to applications submitted under s. 651.021(2). The

14  office may not issue a certificate of authority under this

15  chapter to any facility which does not have a component which

16  is to be licensed pursuant to part II or part III of chapter

17  400 or to part I of chapter 429 or which will not offer

18  personal services or nursing services through written

19  contractual agreement. Any written contractual agreement must

20  be disclosed in the continuing care contract and is subject to

21  the provisions of s. 651.1151, relating to administrative,

22  vendor, and management contracts.

23         Section 102.  Subsection (8) of section 651.055,

24  Florida Statutes, is amended to read:

25         651.055  Contracts; right to rescind.--

26         (8)  The provisions of this section shall control over

27  any conflicting provisions contained in part II or part III of

28  chapter 400 or in part I of chapter 429.

29         Section 103.  Subsection (5) of section 651.095,

30  Florida Statutes, is amended to read:

31         651.095  Advertisements; requirements; penalties.--


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 1         (5)  The provisions of this section shall control over

 2  any conflicting provisions contained in part II or part III of

 3  chapter 400 or in part I of chapter 429.

 4         Section 104.  Subsections (1), (4), (6), (7), and (8)

 5  of section 651.118, Florida Statutes, are amended to read:

 6         651.118  Agency for Health Care Administration;

 7  certificates of need; sheltered beds; community beds.--

 8         (1)  The provisions of this section shall control in

 9  the case of conflict with the provisions of the Health

10  Facility and Services Development Act, ss. 408.031-408.045;

11  the provisions of chapter 395; or the provisions of part II

12  parts II and III of chapter 400; or the provisions of part I

13  of chapter 429.

14         (4)  The Agency for Health Care Administration shall

15  approve one sheltered nursing home bed for every four proposed

16  residential units, including those that are licensed under

17  part I of chapter 429 part III of chapter 400, in the

18  continuing care facility unless the provider demonstrates the

19  need for a lesser number of sheltered nursing home beds based

20  on proposed utilization by prospective residents or

21  demonstrates the need for additional sheltered nursing home

22  beds based on actual utilization and demand by current

23  residents.

24         (6)  Unless the provider already has a component that

25  is to be a part of the continuing care facility and that is

26  licensed under chapter 395, or part II or part III of chapter

27  400, or part I of chapter 429 at the time of construction of

28  the continuing care facility, the provider must construct the

29  nonnursing home portion of the facility and the nursing home

30  portion of the facility at the same time. If a provider

31  constructs less than the number of residential units approved


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 1  in the certificate of authority, the number of licensed

 2  sheltered nursing home beds shall be reduced by a

 3  proportionate share.

 4         (7)  Notwithstanding the provisions of subsection (2),

 5  at the discretion of the continuing care provider, sheltered

 6  nursing home beds may be used for persons who are not

 7  residents of the continuing care facility and who are not

 8  parties to a continuing care contract for a period of up to 5

 9  years after the date of issuance of the initial nursing home

10  license. A provider whose 5-year period has expired or is

11  expiring may request the Agency for Health Care Administration

12  for an extension, not to exceed 30 percent of the total

13  sheltered nursing home beds, if the utilization by residents

14  of the nursing home facility in the sheltered beds will not

15  generate sufficient income to cover nursing home facility

16  expenses, as evidenced by one of the following:

17         (a)  The nursing home facility has a net loss for the

18  most recent fiscal year as determined under generally accepted

19  accounting principles, excluding the effects of extraordinary

20  or unusual items, as demonstrated in the most recently audited

21  financial statement; or

22         (b)  The nursing home facility would have had a pro

23  forma loss for the most recent fiscal year, excluding the

24  effects of extraordinary or unusual items, if revenues were

25  reduced by the amount of revenues from persons in sheltered

26  beds who were not residents, as reported on by a certified

27  public accountant.

28  

29  The agency shall be authorized to grant an extension to the

30  provider based on the evidence required in this subsection.

31  The agency may request a continuing care facility to use up to


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 1  25 percent of the patient days generated by new admissions of

 2  nonresidents during the extension period to serve Medicaid

 3  recipients for those beds authorized for extended use if there

 4  is a demonstrated need in the respective service area and if

 5  funds are available. A provider who obtains an extension is

 6  prohibited from applying for additional sheltered beds under

 7  the provision of subsection (2), unless additional residential

 8  units are built or the provider can demonstrate need by

 9  continuing care facility residents to the Agency for Health

10  Care Administration. The 5-year limit does not apply to up to

11  five sheltered beds designated for inpatient hospice care as

12  part of a contractual arrangement with a hospice licensed

13  under part IV VI of chapter 400. A continuing care facility

14  that uses such beds after the 5-year period shall report such

15  use to the Agency for Health Care Administration. For purposes

16  of this subsection, "resident" means a person who, upon

17  admission to the continuing care facility, initially resides

18  in a part of the continuing care facility not licensed under

19  part II of chapter 400.

20         (8)  A provider may petition the Agency for Health Care

21  Administration to use a designated number of sheltered nursing

22  home beds to provide extended congregate care as defined in s.

23  429.02 s. 400.402 if the beds are in a distinct area of the

24  nursing home which can be adapted to meet the requirements for

25  extended congregate care. The provider may subsequently use

26  such beds as sheltered beds after notifying the agency of the

27  intended change. Any sheltered beds used to provide extended

28  congregate care pursuant to this subsection may not qualify

29  for funding under the Medicaid waiver. Any sheltered beds used

30  to provide extended congregate care pursuant to this

31  subsection may share common areas, services, and staff with


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 1  beds designated for nursing home care, provided that all of

 2  the beds are under common ownership. For the purposes of this

 3  subsection, fire and life safety codes applicable to nursing

 4  home facilities shall apply.

 5         Section 105.  Subsection (2) of section 765.1103,

 6  Florida Statutes, is amended to read:

 7         765.1103  Pain management and palliative care.--

 8         (2)  Health care providers and practitioners regulated

 9  under chapter 458, chapter 459, or chapter 464 must, as

10  appropriate, comply with a request for pain management or

11  palliative care from a patient under their care or, for an

12  incapacitated patient under their care, from a surrogate,

13  proxy, guardian, or other representative permitted to make

14  health care decisions for the incapacitated patient.

15  Facilities regulated under chapter 395, or chapter 400, or

16  chapter 429 must comply with the pain management or palliative

17  care measures ordered by the patient's physician.

18         Section 106.  Subsection (2) of section 765.205,

19  Florida Statutes, is amended to read:

20         765.205  Responsibility of the surrogate.--

21         (2)  The surrogate may authorize the release of

22  information and medical records to appropriate persons to

23  ensure the continuity of the principal's health care and may

24  authorize the admission, discharge, or transfer of the

25  principal to or from a health care facility or other facility

26  or program licensed under chapter 400 or chapter 429.

27         Section 107.  Subsection (1) of section 768.735,

28  Florida Statutes, is amended to read:

29         768.735  Punitive damages; exceptions; limitation.--

30         (1)  Sections 768.72(2)-(4), 768.725, and 768.73 do not

31  apply to any civil action based upon child abuse, abuse of the


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 1  elderly under chapter 415, or abuse of the developmentally

 2  disabled. Such actions are governed by applicable statutes and

 3  controlling judicial precedent. This section does not apply to

 4  claims brought pursuant to s. 400.023 or s. 429.29 s. 400.429.

 5         Section 108.  Paragraph (h) of subsection (1) of

 6  section 893.13, Florida Statutes, is amended to read:

 7         893.13  Prohibited acts; penalties.--

 8         (1)

 9         (h)  Except as authorized by this chapter, it is

10  unlawful for any person to sell, manufacture, or deliver, or

11  possess with intent to sell, manufacture, or deliver, a

12  controlled substance in, on, or within 1,000 feet of the real

13  property comprising an assisted living facility, as that term

14  is used in chapter 429 400. Any person who violates this

15  paragraph with respect to:

16         1.  A controlled substance named or described in s.

17  893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4.

18  commits a felony of the first degree, punishable as provided

19  in s. 775.082, s. 775.083, or s. 775.084.

20         2.  A controlled substance named or described in s.

21  893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5.,

22  (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a

23  felony of the second degree, punishable as provided in s.

24  775.082, s. 775.083, or s. 775.084.

25         Section 109.  Paragraph (a) of subsection (4) of

26  section 943.0585, Florida Statutes, is amended to read:

27         943.0585  Court-ordered expunction of criminal history

28  records.--The courts of this state have jurisdiction over

29  their own procedures, including the maintenance, expunction,

30  and correction of judicial records containing criminal history

31  information to the extent such procedures are not inconsistent


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 1  with the conditions, responsibilities, and duties established

 2  by this section. Any court of competent jurisdiction may order

 3  a criminal justice agency to expunge the criminal history

 4  record of a minor or an adult who complies with the

 5  requirements of this section. The court shall not order a

 6  criminal justice agency to expunge a criminal history record

 7  until the person seeking to expunge a criminal history record

 8  has applied for and received a certificate of eligibility for

 9  expunction pursuant to subsection (2). A criminal history

10  record that relates to a violation of s. 393.135, s. 394.4593,

11  s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 817.034, s.

12  825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,

13  s. 847.0145, s. 893.135,  s. 916.1075, or a violation

14  enumerated in s. 907.041 may not be expunged, without regard

15  to whether adjudication was withheld, if the defendant was

16  found guilty of or pled guilty or nolo contendere to the

17  offense, or if the defendant, as a minor, was found to have

18  committed, or pled guilty or nolo contendere to committing,

19  the offense as a delinquent act. The court may only order

20  expunction of a criminal history record pertaining to one

21  arrest or one incident of alleged criminal activity, except as

22  provided in this section. The court may, at its sole

23  discretion, order the expunction of a criminal history record

24  pertaining to more than one arrest if the additional arrests

25  directly relate to the original arrest. If the court intends

26  to order the expunction of records pertaining to such

27  additional arrests, such intent must be specified in the

28  order. A criminal justice agency may not expunge any record

29  pertaining to such additional arrests if the order to expunge

30  does not articulate the intention of the court to expunge a

31  record pertaining to more than one arrest. This section does


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 1  not prevent the court from ordering the expunction of only a

 2  portion of a criminal history record pertaining to one arrest

 3  or one incident of alleged criminal activity. Notwithstanding

 4  any law to the contrary, a criminal justice agency may comply

 5  with laws, court orders, and official requests of other

 6  jurisdictions relating to expunction, correction, or

 7  confidential handling of criminal history records or

 8  information derived therefrom. This section does not confer

 9  any right to the expunction of any criminal history record,

10  and any request for expunction of a criminal history record

11  may be denied at the sole discretion of the court.

12         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

13  criminal history record of a minor or an adult which is

14  ordered expunged by a court of competent jurisdiction pursuant

15  to this section must be physically destroyed or obliterated by

16  any criminal justice agency having custody of such record;

17  except that any criminal history record in the custody of the

18  department must be retained in all cases. A criminal history

19  record ordered expunged that is retained by the department is

20  confidential and exempt from the provisions of s. 119.07(1)

21  and s. 24(a), Art. I of the State Constitution and not

22  available to any person or entity except upon order of a court

23  of competent jurisdiction. A criminal justice agency may

24  retain a notation indicating compliance with an order to

25  expunge.

26         (a)  The person who is the subject of a criminal

27  history record that is expunged under this section or under

28  other provisions of law, including former s. 893.14, former s.

29  901.33, and former s. 943.058, may lawfully deny or fail to

30  acknowledge the arrests covered by the expunged record, except

31  when the subject of the record:


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 1         1.  Is a candidate for employment with a criminal

 2  justice agency;

 3         2.  Is a defendant in a criminal prosecution;

 4         3.  Concurrently or subsequently petitions for relief

 5  under this section or s. 943.059;

 6         4.  Is a candidate for admission to The Florida Bar;

 7         5.  Is seeking to be employed or licensed by or to

 8  contract with the Department of Children and Family Services

 9  or the Department of Juvenile Justice or to be employed or

10  used by such contractor or licensee in a sensitive position

11  having direct contact with children, the developmentally

12  disabled, the aged, or the elderly as provided in s.

13  110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.

14  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

15  916.106(10) and (13), s. 985.407, or chapter 400, or chapter

16  429; or

17         6.  Is seeking to be employed or licensed by the

18  Department of Education, any district school board, any

19  university laboratory school, any charter school, any private

20  or parochial school, or any local governmental entity that

21  licenses child care facilities.

22         Section 110.  Paragraph (a) of subsection (4) of

23  section 943.059, Florida Statutes, is amended to read:

24         943.059  Court-ordered sealing of criminal history

25  records.--The courts of this state shall continue to have

26  jurisdiction over their own procedures, including the

27  maintenance, sealing, and correction of judicial records

28  containing criminal history information to the extent such

29  procedures are not inconsistent with the conditions,

30  responsibilities, and duties established by this section. Any

31  court of competent jurisdiction may order a criminal justice


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 1  agency to seal the criminal history record of a minor or an

 2  adult who complies with the requirements of this section. The

 3  court shall not order a criminal justice agency to seal a

 4  criminal history record until the person seeking to seal a

 5  criminal history record has applied for and received a

 6  certificate of eligibility for sealing pursuant to subsection

 7  (2). A criminal history record that relates to a violation of

 8  s. 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03,

 9  s. 800.04, s. 817.034, s. 825.1025, s. 827.071, chapter 839,

10  s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.

11  916.1075, or a violation enumerated in s. 907.041 may not be

12  sealed, without regard to whether adjudication was withheld,

13  if the defendant was found guilty of or pled guilty or nolo

14  contendere to the offense, or if the defendant, as a minor,

15  was found to have committed or pled guilty or nolo contendere

16  to committing the offense as a delinquent act. The court may

17  only order sealing of a criminal history record pertaining to

18  one arrest or one incident of alleged criminal activity,

19  except as provided in this section. The court may, at its sole

20  discretion, order the sealing of a criminal history record

21  pertaining to more than one arrest if the additional arrests

22  directly relate to the original arrest. If the court intends

23  to order the sealing of records pertaining to such additional

24  arrests, such intent must be specified in the order. A

25  criminal justice agency may not seal any record pertaining to

26  such additional arrests if the order to seal does not

27  articulate the intention of the court to seal records

28  pertaining to more than one arrest. This section does not

29  prevent the court from ordering the sealing of only a portion

30  of a criminal history record pertaining to one arrest or one

31  incident of alleged criminal activity. Notwithstanding any law


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 1  to the contrary, a criminal justice agency may comply with

 2  laws, court orders, and official requests of other

 3  jurisdictions relating to sealing, correction, or confidential

 4  handling of criminal history records or information derived

 5  therefrom. This section does not confer any right to the

 6  sealing of any criminal history record, and any request for

 7  sealing a criminal history record may be denied at the sole

 8  discretion of the court.

 9         (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A

10  criminal history record of a minor or an adult which is

11  ordered sealed by a court of competent jurisdiction pursuant

12  to this section is confidential and exempt from the provisions

13  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution

14  and is available only to the person who is the subject of the

15  record, to the subject's attorney, to criminal justice

16  agencies for their respective criminal justice purposes, or to

17  those entities set forth in subparagraphs (a)1., 4., 5., and

18  6. for their respective licensing and employment purposes.

19         (a)  The subject of a criminal history record sealed

20  under this section or under other provisions of law, including

21  former s. 893.14, former s. 901.33, and former s. 943.058, may

22  lawfully deny or fail to acknowledge the arrests covered by

23  the sealed record, except when the subject of the record:

24         1.  Is a candidate for employment with a criminal

25  justice agency;

26         2.  Is a defendant in a criminal prosecution;

27         3.  Concurrently or subsequently petitions for relief

28  under this section or s. 943.0585;

29         4.  Is a candidate for admission to The Florida Bar;

30         5.  Is seeking to be employed or licensed by or to

31  contract with the Department of Children and Family Services


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 1  or the Department of Juvenile Justice or to be employed or

 2  used by such contractor or licensee in a sensitive position

 3  having direct contact with children, the developmentally

 4  disabled, the aged, or the elderly as provided in s.

 5  110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.

 6  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

 7  415.103, s. 916.106(10) and (13), s. 985.407, or chapter 400,

 8  or chapter 429; or

 9         6.  Is seeking to be employed or licensed by the

10  Department of Education, any district school board, any

11  university laboratory school, any charter school, any private

12  or parochial school, or any local governmental entity that

13  licenses child care facilities.

14         Section 111.  The Division of Statutory Revision of the

15  Office of Legislative Services is requested to prepare a

16  reviser's bill for introduction at a subsequent session of the

17  Legislature to conform the Florida Statutes to changes made by

18  this act.

19         Section 112.  This act shall take effect July 1, 2006.

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  


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