Florida Senate - 2012                             CS for SB 1292
       
       
       
       By the Committee on Health Regulation; and Senator Bogdanoff
       
       
       
       
       588-03531-12                                          20121292c1
    1                        A bill to be entitled                      
    2         An act relating to health care facilities; amending s.
    3         400.021, F.S.; revising definitions of the terms
    4         “geriatric outpatient clinic” and “resident care plan”
    5         and defining the term “therapeutic spa services”;
    6         amending s. 400.141, F.S.; revising provisions
    7         relating to facilities eligible to share programming
    8         and staff; deleting requirements for the submission of
    9         certain reports to the Agency for Health Care
   10         Administration; creating s. 400.172, F.S.; providing
   11         requirements for a nursing home facility operated by a
   12         licensee that provides respite care services;
   13         providing for rights of persons receiving respite care
   14         in nursing home facilities; requiring a prospective
   15         respite care recipient to provide certain information
   16         to the nursing home facility; amending s. 400.141,
   17         F.S.; revising provisions relating to other needed
   18         services provided by licensed nursing home facilities,
   19         including respite care, adult day, and therapeutic spa
   20         services; amending s. 408.036, F.S.; adding to the
   21         exemptions from agency review and from the requirement
   22         of a certificate of need a pilot project to construct
   23         a nursing home that is affiliated with an accredited
   24         nursing school in a private accredited university and
   25         that meets certain criteria; providing an exception to
   26         a moratorium on new construction of nursing home beds;
   27         providing for expiration of the provision; amending s.
   28         429.195, F.S.; revising provisions prohibiting certain
   29         rebates relating to assisted living facilities;
   30         amending s. 429.905, F.S.; defining the term “day” for
   31         purposes of day care services provided to adults who
   32         are not residents; amending ss. 458.3265 and 459.0137,
   33         F.S.; revising the definition of the term “chronic
   34         nonmalignant pain”; requiring that a pain-management
   35         clinic register with the Department of Health unless
   36         the clinic is wholly owned by certain board-eligible
   37         or board-certified physicians or medical specialists,
   38         organized as a physician-owned group practice, or
   39         wholly owned by physicians who are not board eligible
   40         or board certified but who have completed specified
   41         residency programs and have a specified number of
   42         years of full-time practice in pain medicine; amending
   43         s. 651.118, F.S.; providing a funding limitation on
   44         sheltered nursing home beds used to provide assisted
   45         living, rather than extended congregate care services;
   46         authorizing certain sharing of areas, services, and
   47         staff between such sheltered beds and nursing home
   48         beds in those facilities; amending s. 817.505, F.S.;
   49         conforming provisions to changes made by the act;
   50         providing an effective date.
   51  
   52  Be It Enacted by the Legislature of the State of Florida:
   53  
   54         Section 1. Subsections (8) and (16) of section 400.021,
   55  Florida Statutes, are amended, and subsection (19) is added to
   56  that section, to read:
   57         400.021 Definitions.—When used in this part, unless the
   58  context otherwise requires, the term:
   59         (8) “Geriatric outpatient clinic” means a site for
   60  providing outpatient health care to persons 60 years of age or
   61  older, which is staffed by a registered nurse, or a physician
   62  assistant, or a licensed practical nurse under the direct
   63  supervision of a registered nurse, advanced registered nurse
   64  practitioner, physician assistant, or physician.
   65         (16) “Resident care plan” means a written plan developed,
   66  maintained, and reviewed not less than quarterly by a registered
   67  nurse, with participation from other facility staff and the
   68  resident or his or her designee or legal representative, which
   69  includes a comprehensive assessment of the needs of an
   70  individual resident; the type and frequency of services required
   71  to provide the necessary care for the resident to attain or
   72  maintain the highest practicable physical, mental, and
   73  psychosocial well-being; a listing of services provided within
   74  or outside the facility to meet those needs; and an explanation
   75  of service goals. The resident care plan must be signed by the
   76  director of nursing or another registered nurse employed by the
   77  facility to whom institutional responsibilities have been
   78  delegated and by the resident, the resident’s designee, or the
   79  resident’s legal representative. The facility may not use an
   80  agency or temporary registered nurse to satisfy the foregoing
   81  requirement and must document the institutional responsibilities
   82  that have been delegated to the registered nurse.
   83         (19) “Therapeutic spa services” means bathing, nail, and
   84  hair care services and other similar services related to
   85  personal hygiene.
   86         Section 2. Paragraph (g) of subsection (1) of section
   87  400.141, Florida Statutes, is amended to read:
   88         400.141 Administration and management of nursing home
   89  facilities.—
   90         (1) Every licensed facility shall comply with all
   91  applicable standards and rules of the agency and shall:
   92         (g) If the facility has a standard license or is a Gold
   93  Seal facility, exceeds the minimum required hours of licensed
   94  nursing and certified nursing assistant direct care per resident
   95  per day, and is part of a continuing care facility licensed
   96  under chapter 651 or a retirement community that offers other
   97  services pursuant to part III of this chapter or part I or part
   98  III of chapter 429 on a single campus, be allowed to share
   99  programming and staff. At the time of inspection and in the
  100  semiannual report required pursuant to paragraph (o), a
  101  continuing care facility or retirement community that uses this
  102  option must demonstrate through staffing records that minimum
  103  staffing requirements for the facility were met. Licensed nurses
  104  and certified nursing assistants who work in the nursing home
  105  facility may be used to provide services elsewhere on campus if
  106  the facility exceeds the minimum number of direct care hours
  107  required per resident per day and the total number of residents
  108  receiving direct care services from a licensed nurse or a
  109  certified nursing assistant does not cause the facility to
  110  violate the staffing ratios required under s. 400.23(3)(a).
  111  Compliance with the minimum staffing ratios must shall be based
  112  on the total number of residents receiving direct care services,
  113  regardless of where they reside on campus. If the facility
  114  receives a conditional license, it may not share staff until the
  115  conditional license status ends. This paragraph does not
  116  restrict the agency’s authority under federal or state law to
  117  require additional staff if a facility is cited for deficiencies
  118  in care which are caused by an insufficient number of certified
  119  nursing assistants or licensed nurses. The agency may adopt
  120  rules for the documentation necessary to determine compliance
  121  with this provision.
  122         Section 3. Section 400.172, Florida Statutes, is created to
  123  read:
  124         400.172 Respite care provided in nursing home facilities.—
  125         (1) For each person admitted for respite care as authorized
  126  under s. 400.141(1)(f), a nursing home facility operated by a
  127  licensee must:
  128         (a) Have a written abbreviated plan of care that, at a
  129  minimum, includes nutritional requirements, medication orders,
  130  physician orders, nursing assessments, and dietary preferences.
  131  The nursing or physician assessments may take the place of all
  132  other assessments required for full-time residents.
  133         (b) Have a contract that, at a minimum, specifies the
  134  services to be provided to a resident receiving respite care,
  135  including charges for services, activities, equipment, emergency
  136  medical services, and the administration of medications. If
  137  multiple admissions for a single person for respite care are
  138  anticipated, the original contract is valid for 1 year after the
  139  date the contract is executed.
  140         (c) Ensure that each resident is released to his or her
  141  caregiver or an individual designated in writing by the
  142  caregiver.
  143         (2) A person admitted under the respite care program shall:
  144         (a) Be exempt from department rules relating to the
  145  discharge planning process.
  146         (b) Be covered by the residents’ rights specified in s.
  147  400.022(1)(a)-(o) and (r)-(t). Funds or property of the resident
  148  are not be considered trust funds subject to the requirements of
  149  s. 400.022(1)(h) until the resident has been in the facility for
  150  more than 14 consecutive days.
  151         (c) Be allowed to use his or her personal medications
  152  during the respite stay if permitted by facility policy. The
  153  facility must obtain a physician’s order for the medications.
  154  The caregiver may provide information regarding the medications
  155  as part of the nursing assessment and that information must
  156  agree with the physician’s order. Medications shall be released
  157  with the resident upon discharge in accordance with current
  158  physician’s orders.
  159         (d) Be entitled to reside in the facility for a total of 60
  160  days within a contract year or for a total of 60 days within a
  161  calendar year if the contract is for less than 12 months.
  162  However, each single stay may not exceed 14 days. If a stay
  163  exceeds 14 consecutive days, the facility must comply with all
  164  assessment and care planning requirements applicable to nursing
  165  home residents.
  166         (e) Reside in a licensed nursing home bed.
  167         (3) A prospective respite care resident must provide
  168  medical information from a physician, physician assistant, or
  169  nurse practitioner and any other information provided by the
  170  primary caregiver required by the facility before or when the
  171  person is admitted to receive respite care. The medical
  172  information must include a physician’s order for respite care
  173  and proof of a physical examination by a licensed physician,
  174  physician assistant, or nurse practitioner. The physician’s
  175  order and physical examination may be used to provide
  176  intermittent respite care for up to 12 months after the date the
  177  order is written.
  178         (4) The facility shall assume the duties of the primary
  179  caregiver. To ensure continuity of care and services, the
  180  resident may retain his or her personal physician and shall have
  181  access to medically necessary services such as physical therapy,
  182  occupational therapy, or speech therapy, as needed. The facility
  183  shall arrange for transportation of the resident to these
  184  services, if necessary.
  185         Section 4. Paragraph (f) of subsection (1) of section
  186  400.141, Florida Statutes, is amended to read:
  187         400.141 Administration and management of nursing home
  188  facilities.—
  189         (1) Every licensed facility shall comply with all
  190  applicable standards and rules of the agency and shall:
  191         (f) Be allowed and encouraged by the agency to provide
  192  other needed services under certain conditions. If the facility
  193  has a standard licensure status, and has had no class I or class
  194  II deficiencies during the past 2 years or has been awarded a
  195  Gold Seal under the program established in s. 400.235, it may be
  196  encouraged by the agency to provide services, including, but not
  197  limited to, respite, therapeutic spa, and adult day services to
  198  nonresidents, which enable individuals to move in and out of the
  199  facility. A facility is not subject to any additional licensure
  200  requirements for providing these services. Respite care may be
  201  offered to persons in need of short-term or temporary nursing
  202  home services. Respite care must be provided in accordance with
  203  this part and rules adopted by the agency. However, the agency
  204  shall, by rule, adopt modified requirements for resident
  205  assessment, resident care plans, resident contracts, physician
  206  orders, and other provisions, as appropriate, for short-term or
  207  temporary nursing home services. Providers of adult day services
  208  must comply with the requirements of s. 429.905(2). The agency
  209  shall allow for shared programming and staff in a facility which
  210  meets minimum standards and offers services pursuant to this
  211  paragraph, but, if the facility is cited for deficiencies in
  212  patient care, may require additional staff and programs
  213  appropriate to the needs of service recipients. A person who
  214  receives respite care may not be counted as a resident of the
  215  facility for purposes of the facility’s licensed capacity unless
  216  that person receives 24-hour respite care. A person receiving
  217  either respite care for 24 hours or longer or adult day services
  218  must be included when calculating minimum staffing for the
  219  facility. Any costs and revenues generated by a nursing home
  220  facility from nonresidential programs or services shall be
  221  excluded from the calculations of Medicaid per diems for nursing
  222  home institutional care reimbursement.
  223         Section 5. Paragraph (t) is added to subsection (3) of
  224  section 408.036, Florida Statutes, to read:
  225         408.036 Projects subject to review; exemptions.—
  226         (3) EXEMPTIONS.—Upon request, the following projects are
  227  subject to exemption from the provisions of subsection (1):
  228         (t)1.There shall be a pilot project in the agency-planning
  229  subdistrict 4-1, 4-2, or 4-3 for the construction of a nursing
  230  home that has 150 or fewer beds. In order to qualify for the
  231  pilot project, the nursing home must:
  232         a. Be affiliated with an accredited nursing school offering
  233  a bachelor of science, master of science, and doctorate of
  234  science degree program within a private accredited university;
  235         b. Be constructed on or abutting property of the private
  236  accredited university;
  237         c. Once licensed, have at all times an affiliation with the
  238  private accredited university; and
  239         d. Employ or otherwise make positions available for the
  240  education and training of nursing students in the field of long
  241  term care or geriatric nursing.
  242         2. Notwithstanding any moratorium, existing or planned, on
  243  new construction of nursing home beds, a pilot project meeting
  244  the provisions of this paragraph may proceed with construction,
  245  licensure, and operation. Construction must begin within 11
  246  months after this exemption becomes law. This exemption expires
  247  June 30, 2014.
  248         Section 6. Section 429.195, Florida Statutes, is amended to
  249  read:
  250         429.195 Rebates prohibited; penalties.—
  251         (1) It is unlawful for an any assisted living facility
  252  licensed under this part to contract or promise to pay or
  253  receive any commission, bonus, kickback, or rebate or engage in
  254  any split-fee arrangement in any form whatsoever with any
  255  person, health care provider, or health care facility as
  256  provided under s. 817.505 physician, surgeon, organization,
  257  agency, or person, either directly or indirectly, for residents
  258  referred to an assisted living facility licensed under this
  259  part. A facility may employ or contract with persons to market
  260  the facility, provided the employee or contract provider clearly
  261  indicates that he or she represents the facility. A person or
  262  agency independent of the facility may provide placement or
  263  referral services for a fee to individuals seeking assistance in
  264  finding a suitable facility; however, any fee paid for placement
  265  or referral services must be paid by the individual looking for
  266  a facility, not by the facility.
  267         (2) This section does not apply to:
  268         (a) An individual employed by the assisted living facility,
  269  or with whom the facility contracts to provide marketing
  270  services for the facility, if the individual clearly indicates
  271  that he or she works with or for the facility.
  272         (b) Payments by an assisted living facility to a referral
  273  service that provides information, consultation, or referrals to
  274  consumers to assist them in finding appropriate care or housing
  275  options for seniors or disabled adults if the referred consumers
  276  are not Medicaid recipients.
  277         (c) A resident of an assisted living facility who refers a
  278  friend, family members, or other individuals with whom the
  279  resident has a personal relationship to the assisted living
  280  facility, in which case the assisted living facility may provide
  281  a monetary reward to the resident for making such referral.
  282         (3)(2) A violation of this section is shall be considered
  283  patient brokering and is punishable as provided in s. 817.505.
  284         Section 7. Subsection (2) of section 429.905, Florida
  285  Statutes, is amended to read:
  286         429.905 Exemptions; monitoring of adult day care center
  287  programs colocated with assisted living facilities or licensed
  288  nursing home facilities.—
  289         (2) A licensed assisted living facility, a licensed
  290  hospital, or a licensed nursing home facility may provide
  291  services during the day which include, but are not limited to,
  292  social, health, therapeutic, recreational, nutritional, and
  293  respite services, to adults who are not residents. Such a
  294  facility need not be licensed as an adult day care center;
  295  however, the agency must monitor the facility during the regular
  296  inspection and at least biennially to ensure adequate space and
  297  sufficient staff. If an assisted living facility, a hospital, or
  298  a nursing home holds itself out to the public as an adult day
  299  care center, it must be licensed as such and meet all standards
  300  prescribed by statute and rule. For the purpose of this
  301  subsection, the term “day” means any portion of a 24-hour day.
  302         Section 8. Paragraph (a) of subsection (1) of section
  303  458.3265, Florida Statutes, is amended to read:
  304         458.3265 Pain-management clinics.—
  305         (1) REGISTRATION.—
  306         (a)1. As used in this section, the term:
  307         a. “Chronic nonmalignant pain” means pain unrelated to
  308  cancer, or rheumatoid arthritis, or sickle cell anemia which
  309  persists beyond the usual course of disease or beyond the injury
  310  that is the cause of the pain or which persists more than 90
  311  days after surgery.
  312         b. “Pain-management clinic” or “clinic” means any publicly
  313  or privately owned facility:
  314         (I) That advertises in any medium for any type of pain
  315  management services; or
  316         (II) Where in any month a majority of patients are
  317  prescribed opioids, benzodiazepines, barbiturates, or
  318  carisoprodol for the treatment of chronic nonmalignant pain.
  319         2. Each pain-management clinic must register with the
  320  department unless:
  321         a. The That clinic is licensed as a facility pursuant to
  322  chapter 395;
  323         b. The majority of the physicians who provide services in
  324  the clinic primarily provide primarily surgical services;
  325         c. The clinic is owned by a publicly held corporation whose
  326  shares are traded on a national exchange or on the over-the
  327  counter market and whose total assets at the end of the
  328  corporation’s most recent fiscal quarter exceeded $50 million;
  329         d. The clinic is affiliated with an accredited medical
  330  school at which training is provided for medical students,
  331  residents, or fellows;
  332         e. The clinic does not prescribe controlled substances for
  333  the treatment of pain;
  334         f. The clinic is owned by a corporate entity exempt from
  335  federal taxation under 26 U.S.C. s. 501(c)(3);
  336         g. The clinic is wholly owned and operated by one or more
  337  board-eligible or board-certified anesthesiologists,
  338  physiatrists, psychiatrists, rheumatologists, or neurologists;
  339  or
  340         h. The clinic is wholly owned and operated by one or more
  341  board-eligible or board-certified medical specialists who have
  342  also completed fellowships in pain medicine approved by the
  343  Accreditation Council for Graduate Medical Education, or who are
  344  also board-eligible or board-certified in pain medicine by a
  345  board approved by the American Board of Pain Medicine or the
  346  American Board of Medical Specialties and perform interventional
  347  pain procedures of the type routinely billed using surgical
  348  codes;.
  349         i.The clinic is organized as a physician-owned group
  350  practice as defined in 42 C.F.R. 411,352; or
  351         j.Before June 1, 2011, the clinic was wholly owned by
  352  physicians who are not board eligible or board certified but who
  353  successfully completed a residency program in anesthesiology,
  354  physiatry, psychiatry, rheumatology, or neurology and who have 7
  355  years of documented, full-time practice in pain medicine in this
  356  state. For purposes of this paragraph, the term “full-time” is
  357  defined as practicing an average of 20 hours per week each year
  358  in pain medicine.
  359         Section 9. Paragraph (a) of subsection (1) of section
  360  459.0137, Florida Statutes, is amended to read:
  361         459.0137 Pain-management clinics.—
  362         (1) REGISTRATION.—
  363         (a)1. As used in this section, the term:
  364         a. “Chronic nonmalignant pain” means pain unrelated to
  365  cancer, or rheumatoid arthritis, or sickle cell anemia which
  366  persists beyond the usual course of disease or beyond the injury
  367  that is the cause of the pain or which persists more than 90
  368  days after surgery.
  369         b. “Pain-management clinic” or “clinic” means any publicly
  370  or privately owned facility:
  371         (I) That advertises in any medium for any type of pain
  372  management services; or
  373         (II) Where in any month a majority of patients are
  374  prescribed opioids, benzodiazepines, barbiturates, or
  375  carisoprodol for the treatment of chronic nonmalignant pain.
  376         2. Each pain-management clinic must register with the
  377  department unless:
  378         a. The That clinic is licensed as a facility pursuant to
  379  chapter 395;
  380         b. The majority of the physicians who provide services in
  381  the clinic primarily provide primarily surgical services;
  382         c. The clinic is owned by a publicly held corporation whose
  383  shares are traded on a national exchange or on the over-the
  384  counter market and whose total assets at the end of the
  385  corporation’s most recent fiscal quarter exceeded $50 million;
  386         d. The clinic is affiliated with an accredited medical
  387  school at which training is provided for medical students,
  388  residents, or fellows;
  389         e. The clinic does not prescribe controlled substances for
  390  the treatment of pain;
  391         f. The clinic is owned by a corporate entity exempt from
  392  federal taxation under 26 U.S.C. s. 501(c)(3);
  393         g. The clinic is wholly owned and operated by one or more
  394  board-eligible or board-certified anesthesiologists,
  395  physiatrists, psychiatrists, rheumatologists, or neurologists;
  396  or
  397         h. The clinic is wholly owned and operated by one or more
  398  board-eligible or board-certified medical specialists who have
  399  also completed fellowships in pain medicine approved by the
  400  Accreditation Council for Graduate Medical Education or the
  401  American Osteopathic Association, or who are also board-eligible
  402  or board-certified in pain medicine by a board approved by the
  403  American Board of Medical Specialties, the American Association
  404  of Physician Specialties, or the American Board of Pain
  405  Medicine, or the American Osteopathic Association and perform
  406  interventional pain procedures of the type routinely billed
  407  using surgical codes.
  408         Section 10. Subsection (8) of section 651.118, Florida
  409  Statutes, is amended to read:
  410         651.118 Agency for Health Care Administration; certificates
  411  of need; sheltered beds; community beds.—
  412         (8) A provider may petition the Agency for Health Care
  413  Administration to use a designated number of sheltered nursing
  414  home beds to provide assisted living extended congregate care as
  415  defined in s. 429.02 if the beds are in a distinct area of the
  416  nursing home which can be adapted to meet the requirements for
  417  an assisted living facility as defined in s. 429.02 extended
  418  congregate care. The provider may subsequently use such beds as
  419  sheltered beds after notifying the agency of the intended
  420  change. Any sheltered beds used to provide assisted living
  421  extended congregate care pursuant to this subsection may not
  422  qualify for funding under the Medicaid waiver. Any sheltered
  423  beds used to provide assisted living extended congregate care
  424  pursuant to this subsection may share common areas, services,
  425  and staff with beds designated for nursing home care, provided
  426  that all of the beds are under common ownership. For the
  427  purposes of this subsection, fire and life safety codes
  428  applicable to nursing home facilities shall apply.
  429         Section 11. Paragraph (j) is added to subsection (3) of
  430  section 817.505, Florida Statutes, to read:
  431         817.505 Patient brokering prohibited; exceptions;
  432  penalties.—
  433         (3) This section shall not apply to:
  434         (j) Any exemptions relating to assisted living facilities
  435  provided under s. 429.195(2).
  436         Section 12. This act shall take effect July 1, 2012.