Florida Senate - 2013                          SENATOR AMENDMENT
       Bill No. CS for CS for SB 966
                                Barcode 165050                          
                              LEGISLATIVE ACTION                        
                    Senate             .             House              

       Senator Soto moved the following:
    1         Senate Amendment (with title amendment)
    3         Between lines 3877 and 3878
    4  insert:
    5         Section 87. Subsection (4) of section 20.41, Florida
    6  Statutes, is amended to read:
    7         20.41 Department of Elderly Affairs.—There is created a
    8  Department of Elderly Affairs.
    9         (4) The department shall administer the Office of State
   10  Long-Term Care Ombudsman Council, created by s. 400.0063
   11  400.0067, and the local long-term care ombudsman councils,
   12  created by s. 400.0069 and shall, as required by s. 712 of the
   13  federal Older Americans Act of 1965, ensure that both the state
   14  office operates and local long-term care ombudsman councils
   15  operate in compliance with the Older Americans Act.
   16         Section 88. Subsections (11) through (19) of section
   17  400.021, Florida Statutes, are renumbered as subsections (10)
   18  through (18), respectively, and present subsections (10) and
   19  (18) are amended, to read:
   20         400.021 Definitions.—When used in this part, unless the
   21  context otherwise requires, the term:
   22         (10) “Local ombudsman council” means a local long-term care
   23  ombudsman council established pursuant to s. 400.0069, located
   24  within the Older Americans Act planning and service areas.
   25         (17)(18) “State ombudsman program council” means the Office
   26  of State Long-Term Care Ombudsman Council established pursuant
   27  to s. 400.0063 400.0067.
   28         Section 89. Paragraph (c) of subsection (1) and subsections
   29  (2) and (3) of section 400.022, Florida Statutes, are amended to
   30  read:
   31         400.022 Residents’ rights.—
   32         (1) All licensees of nursing home facilities shall adopt
   33  and make public a statement of the rights and responsibilities
   34  of the residents of such facilities and shall treat such
   35  residents in accordance with the provisions of that statement.
   36  The statement shall assure each resident the following:
   37         (c) Any entity or individual that provides health, social,
   38  legal, or other services to a resident has the right to have
   39  reasonable access to the resident. The resident has the right to
   40  deny or withdraw consent to access at any time by any entity or
   41  individual. Notwithstanding the visiting policy of the facility,
   42  the following individuals must be permitted immediate access to
   43  the resident:
   44         1. Any representative of the federal or state government,
   45  including, but not limited to, representatives of the Department
   46  of Children and Family Services, the Department of Health, the
   47  Agency for Health Care Administration, the Office of the
   48  Attorney General, and the Department of Elderly Affairs; any law
   49  enforcement officer; representatives members of the state or
   50  local ombudsman program council; and the resident’s individual
   51  physician.
   52         2. Subject to the resident’s right to deny or withdraw
   53  consent, immediate family or other relatives of the resident.
   55  The facility must allow representatives of the state Long-Term
   56  Care ombudsman program Council to examine a resident’s clinical
   57  records with the permission of the resident or the resident’s
   58  legal representative and consistent with state law.
   59         (2) The licensee for each nursing home shall orally inform
   60  the resident of the resident’s rights and provide a copy of the
   61  statement required by subsection (1) to each resident or the
   62  resident’s legal representative at or before the resident’s
   63  admission to a facility. The licensee shall provide a copy of
   64  the resident’s rights to each staff member of the facility. Each
   65  such licensee shall prepare a written plan and provide
   66  appropriate staff training to implement the provisions of this
   67  section. The written statement of rights must include a
   68  statement that a resident may file a complaint with the agency
   69  or state local ombudsman program council. The statement must be
   70  in boldfaced type and shall include the name, address, and
   71  telephone number and e-mail address of the state numbers of the
   72  local ombudsman program council and the telephone number of the
   73  central abuse hotline where complaints may be lodged.
   74         (3) Any violation of the resident’s rights set forth in
   75  this section shall constitute grounds for action by the agency
   76  under the provisions of s. 400.102, s. 400.121, or part II of
   77  chapter 408. In order to determine whether the licensee is
   78  adequately protecting residents’ rights, the licensure
   79  inspection of the facility shall include private informal
   80  conversations with a sample of residents to discuss residents’
   81  experiences within the facility with respect to rights specified
   82  in this section and general compliance with standards, and
   83  consultation with the state ombudsman program council in the
   84  local planning and service area of the Department of Elderly
   85  Affairs in which the nursing home is located.
   86         Section 90. Subsections (8), (9), and (11) through (14) of
   87  section 400.0255, Florida Statutes, are amended to read:
   88         400.0255 Resident transfer or discharge; requirements and
   89  procedures; hearings.—
   90         (8) The notice required by subsection (7) must be in
   91  writing and must contain all information required by state and
   92  federal law, rules, or regulations applicable to Medicaid or
   93  Medicare cases. The agency shall develop a standard document to
   94  be used by all facilities licensed under this part for purposes
   95  of notifying residents of a discharge or transfer. Such document
   96  must include a means for a resident to request the state local
   97  long-term care ombudsman program council to review the notice
   98  and request information about or assistance with initiating a
   99  fair hearing with the department’s Office of Appeals Hearings.
  100  In addition to any other pertinent information included, the
  101  form shall specify the reason allowed under federal or state law
  102  that the resident is being discharged or transferred, with an
  103  explanation to support this action. Further, the form shall
  104  state the effective date of the discharge or transfer and the
  105  location to which the resident is being discharged or
  106  transferred. The form shall clearly describe the resident’s
  107  appeal rights and the procedures for filing an appeal, including
  108  the right to request the state local ombudsman program council
  109  to review the notice of discharge or transfer. A copy of the
  110  notice must be placed in the resident’s clinical record, and a
  111  copy must be transmitted to the resident’s legal guardian or
  112  representative and to the state local ombudsman program council
  113  within 5 business days after signature by the resident or
  114  resident designee.
  115         (9) A resident may request that the state local ombudsman
  116  program council review any notice of discharge or transfer given
  117  to the resident. When requested by a resident to review a notice
  118  of discharge or transfer, the state local ombudsman program
  119  council shall do so within 7 days after receipt of the request.
  120  The nursing home administrator, or the administrator’s designee,
  121  must forward the request for review contained in the notice to
  122  the state local ombudsman program council within 24 hours after
  123  such request is submitted. Failure to forward the request within
  124  24 hours after the request is submitted shall toll the running
  125  of the 30-day advance notice period until the request has been
  126  forwarded.
  127         (11) Notwithstanding paragraph (10)(b), an emergency
  128  discharge or transfer may be implemented as necessary pursuant
  129  to state or federal law during the period of time after the
  130  notice is given and before the time a hearing decision is
  131  rendered. Notice of an emergency discharge or transfer to the
  132  resident, the resident’s legal guardian or representative, and
  133  the state local ombudsman program council if requested pursuant
  134  to subsection (9) must be by telephone or in person. This notice
  135  shall be given before the transfer, if possible, or as soon
  136  thereafter as practicable. A representative of the state local
  137  ombudsman program council conducting a review under this
  138  subsection shall do so within 24 hours after receipt of the
  139  request. The resident’s file must be documented to show who was
  140  contacted, whether the contact was by telephone or in person,
  141  and the date and time of the contact. If the notice is not given
  142  in writing, written notice meeting the requirements of
  143  subsection (8) must be given the next working day.
  144         (12) After receipt of any notice required under this
  145  section, the state local ombudsman program council may request a
  146  private informal conversation with a resident to whom the notice
  147  is directed, and, if known, a family member or the resident’s
  148  legal guardian or designee, to ensure that the facility is
  149  proceeding with the discharge or transfer in accordance with the
  150  requirements of this section. If requested, the state local
  151  ombudsman program council shall assist the resident with filing
  152  an appeal of the proposed discharge or transfer.
  153         (13) The following persons must be present at all hearings
  154  authorized under this section:
  155         (a) The resident, or the resident’s legal representative or
  156  designee.
  157         (b) The facility administrator, or the facility’s legal
  158  representative or designee.
  160  A representative of the state local long-term care ombudsman
  161  program council may be present at all hearings authorized by
  162  this section.
  163         (14) In any hearing under this section, the following
  164  information concerning the parties shall be confidential and
  165  exempt from the provisions of s. 119.07(1):
  166         (a) Names and addresses.
  167         (b) Medical services provided.
  168         (c) Social and economic conditions or circumstances.
  169         (d) Evaluation of personal information.
  170         (e) Medical data, including diagnosis and past history of
  171  disease or disability.
  172         (f) Any information received verifying income eligibility
  173  and amount of medical assistance payments. Income information
  174  received from the Social Security Administration or the Internal
  175  Revenue Service must be safeguarded according to the
  176  requirements of the agency that furnished the data.
  178  The exemption created by this subsection does not prohibit
  179  access to such information by the state ombudsman program a
  180  local long-term care ombudsman council upon request, by a
  181  reviewing court if such information is required to be part of
  182  the record upon subsequent review, or as specified in s. 24(a),
  183  Art. I of the State Constitution.
  184         Section 91. Subsection (2) of section 400.1413, Florida
  185  Statutes, is amended to read:
  186         400.1413 Volunteers in nursing homes.—
  187         (2) This section does not affect the activities of the
  188  state or local long-term care ombudsman program councils
  189  authorized under part I.
  190         Section 92. Paragraph (d) of subsection (5) of section
  191  400.162, Florida Statutes, is amended to read:
  192         400.162 Property and personal affairs of residents.—
  193         (5)
  194         (d) If, at any time during the period for which a license
  195  is issued, a licensee that has not purchased a surety bond or
  196  entered into a self-insurance agreement, as provided in
  197  paragraphs (b) and (c), is requested to provide safekeeping for
  198  the personal funds of a resident, the licensee shall notify the
  199  agency of the request and make application for a surety bond or
  200  for participation in a self-insurance agreement within 7 days
  201  after of the request, exclusive of weekends and holidays. Copies
  202  of the application, along with written documentation of related
  203  correspondence with an insurance agency or group, shall be
  204  maintained by the licensee for review by the agency and the
  205  state Nursing Home and Long-Term Care Facility ombudsman program
  206  Council.
  207         Section 93. Subsections (1) and (4) of section 400.19,
  208  Florida Statutes, are amended to read:
  209         400.19 Right of entry and inspection.—
  210         (1) In accordance with part II of chapter 408, the agency
  211  and any duly designated officer or employee thereof or a
  212  representative member of the state Long-Term Care ombudsman
  213  program Council or the local long-term care ombudsman council
  214  shall have the right to enter upon and into the premises of any
  215  facility licensed pursuant to this part, or any distinct nursing
  216  home unit of a hospital licensed under chapter 395 or any
  217  freestanding facility licensed under chapter 395 that provides
  218  extended care or other long-term care services, at any
  219  reasonable time in order to determine the state of compliance
  220  with the provisions of this part, part II of chapter 408, and
  221  applicable rules in force pursuant thereto. The agency shall,
  222  within 60 days after receipt of a complaint made by a resident
  223  or resident’s representative, complete its investigation and
  224  provide to the complainant its findings and resolution.
  225         (4) The agency shall conduct unannounced onsite facility
  226  reviews following written verification of licensee noncompliance
  227  in instances in which the state ombudsman program a long-term
  228  care ombudsman council, pursuant to ss. 400.0071 and 400.0075,
  229  has received a complaint and has documented deficiencies in
  230  resident care or in the physical plant of the facility that
  231  threaten the health, safety, or security of residents, or when
  232  the agency documents through inspection that conditions in a
  233  facility present a direct or indirect threat to the health,
  234  safety, or security of residents. However, the agency shall
  235  conduct unannounced onsite reviews every 3 months of each
  236  facility while the facility has a conditional license.
  237  Deficiencies related to physical plant do not require followup
  238  reviews after the agency has determined that correction of the
  239  deficiency has been accomplished and that the correction is of
  240  the nature that continued compliance can be reasonably expected.
  241         Section 94. Subsection (1) of section 400.191, Florida
  242  Statutes, is amended to read:
  243         400.191 Availability, distribution, and posting of reports
  244  and records.—
  245         (1) The agency shall provide information to the public
  246  about all of the licensed nursing home facilities operating in
  247  the state. The agency shall, within 60 days after a licensure
  248  inspection visit or within 30 days after any interim visit to a
  249  facility, send copies of the inspection reports to the state
  250  local long-term care ombudsman program council, the agency’s
  251  local office, and a public library or the county seat for the
  252  county in which the facility is located. The agency may provide
  253  electronic access to inspection reports as a substitute for
  254  sending copies.
  255         Section 95. Subsection (6) and paragraph (c) of subsection
  256  (7) of section 400.23, Florida Statutes, are amended to read:
  257         400.23 Rules; evaluation and deficiencies; licensure
  258  status.—
  259         (6) Before Prior to conducting a survey of the facility,
  260  the survey team shall obtain a copy of the state local long-term
  261  care ombudsman program council report on the facility. Problems
  262  noted in the report shall be incorporated into and followed up
  263  through the agency’s inspection process. This procedure does not
  264  preclude the state local long-term care ombudsman program
  265  council from requesting the agency to conduct a followup visit
  266  to the facility.
  267         (7) The agency shall, at least every 15 months, evaluate
  268  all nursing home facilities and make a determination as to the
  269  degree of compliance by each licensee with the established rules
  270  adopted under this part as a basis for assigning a licensure
  271  status to that facility. The agency shall base its evaluation on
  272  the most recent inspection report, taking into consideration
  273  findings from other official reports, surveys, interviews,
  274  investigations, and inspections. In addition to license
  275  categories authorized under part II of chapter 408, the agency
  276  shall assign a licensure status of standard or conditional to
  277  each nursing home.
  278         (c) In evaluating the overall quality of care and services
  279  and determining whether the facility will receive a conditional
  280  or standard license, the agency shall consider the needs and
  281  limitations of residents in the facility and the results of
  282  interviews and surveys of a representative sampling of
  283  residents, families of residents, representatives of the state
  284  ombudsman program council members in the planning and service
  285  area in which the facility is located, guardians of residents,
  286  and staff of the nursing home facility.
  287         Section 96. Paragraph (a) of subsection (3), paragraph (f)
  288  of subsection (5), and subsection (6) of section 400.235,
  289  Florida Statutes, are amended to read:
  290         400.235 Nursing home quality and licensure status; Gold
  291  Seal Program.—
  292         (3)(a) The Gold Seal Program shall be developed and
  293  implemented by the Governor’s Panel on Excellence in Long-Term
  294  Care which shall operate under the authority of the Executive
  295  Office of the Governor. The panel shall be composed of three
  296  persons appointed by the Governor, to include a consumer
  297  advocate for senior citizens and two persons with expertise in
  298  the fields of quality management, service delivery excellence,
  299  or public sector accountability; three persons appointed by the
  300  Secretary of Elderly Affairs, to include an active member of a
  301  nursing facility family and resident care council and a member
  302  of the University Consortium on Aging; a representative of the
  303  Office of State Long-Term Care Ombudsman; one person appointed
  304  by the Florida Life Care Residents Association; one person
  305  appointed by the State Surgeon General; two persons appointed by
  306  the Secretary of Health Care Administration; one person
  307  appointed by the Florida Association of Homes for the Aging; and
  308  one person appointed by the Florida Health Care Association.
  309  Vacancies on the panel shall be filled in the same manner as the
  310  original appointments.
  311         (5) Facilities must meet the following additional criteria
  312  for recognition as a Gold Seal Program facility:
  313         (f) Evidence an outstanding record regarding the number and
  314  types of substantiated complaints reported to the Office of
  315  State Long-Term Care Ombudsman Council within the 30 months
  316  preceding application for the program.
  318  A facility assigned a conditional licensure status may not
  319  qualify for consideration for the Gold Seal Program until after
  320  it has operated for 30 months with no class I or class II
  321  deficiencies and has completed a regularly scheduled relicensure
  322  survey.
  323         (6) The agency, nursing facility industry organizations,
  324  consumers, Office of State Long-Term Care Ombudsman Council, and
  325  members of the community may recommend to the Governor
  326  facilities that meet the established criteria for consideration
  327  for and award of the Gold Seal. The panel shall review nominees
  328  and make a recommendation to the Governor for final approval and
  329  award. The decision of the Governor is final and is not subject
  330  to appeal.
  331         Section 97. Paragraph (a) of subsection (1) of section
  332  415.1034, Florida Statutes, is amended to read:
  333         415.1034 Mandatory reporting of abuse, neglect, or
  334  exploitation of vulnerable adults; mandatory reports of death.—
  335         (1) MANDATORY REPORTING.—
  336         (a) Any person, including, but not limited to, any:
  337         1. Physician, osteopathic physician, medical examiner,
  338  chiropractic physician, nurse, paramedic, emergency medical
  339  technician, or hospital personnel engaged in the admission,
  340  examination, care, or treatment of vulnerable adults;
  341         2. Health professional or mental health professional other
  342  than one listed in subparagraph 1.;
  343         3. Practitioner who relies solely on spiritual means for
  344  healing;
  345         4. Nursing home staff; assisted living facility staff;
  346  adult day care center staff; adult family-care home staff;
  347  social worker; or other professional adult care, residential, or
  348  institutional staff;
  349         5. State, county, or municipal criminal justice employee or
  350  law enforcement officer;
  351         6. An Employee of the Department of Business and
  352  Professional Regulation conducting inspections of public lodging
  353  establishments under s. 509.032;
  354         7. Florida advocacy council member or representative of the
  355  Office of State Long-Term Care Ombudsman council member; or
  356         8. Bank, savings and loan, or credit union officer,
  357  trustee, or employee,
  359  who knows, or has reasonable cause to suspect, that a vulnerable
  360  adult has been or is being abused, neglected, or exploited shall
  361  immediately report such knowledge or suspicion to the central
  362  abuse hotline.
  363         Section 98. Subsection (1) of section 415.104, Florida
  364  Statutes, is amended to read:
  365         415.104 Protective investigations of cases of abuse,
  366  neglect, or exploitation of vulnerable adults; transmittal of
  367  records to state attorney.—
  368         (1) The department shall, upon receipt of a report alleging
  369  abuse, neglect, or exploitation of a vulnerable adult, begin
  370  within 24 hours a protective investigation of the facts alleged
  371  therein. If a caregiver refuses to allow the department to begin
  372  a protective investigation or interferes with the conduct of
  373  such an investigation, the appropriate law enforcement agency
  374  shall be contacted for assistance. If, during the course of the
  375  investigation, the department has reason to believe that the
  376  abuse, neglect, or exploitation is perpetrated by a second
  377  party, the appropriate law enforcement agency and state attorney
  378  shall be orally notified. The department and the law enforcement
  379  agency shall cooperate to allow the criminal investigation to
  380  proceed concurrently with, and not be hindered by, the
  381  protective investigation. The department shall make a
  382  preliminary written report to the law enforcement agencies
  383  within 5 working days after the oral report. The department
  384  shall, within 24 hours after receipt of the report, notify the
  385  appropriate Florida local advocacy council, or state long-term
  386  care ombudsman program council, when appropriate, that an
  387  alleged abuse, neglect, or exploitation perpetrated by a second
  388  party has occurred. Notice to the Florida local advocacy council
  389  or state long-term care ombudsman program council may be
  390  accomplished orally or in writing and shall include the name and
  391  location of the vulnerable adult alleged to have been abused,
  392  neglected, or exploited and the nature of the report.
  393         Section 99. Subsection (8) of section 415.1055, Florida
  394  Statutes, is amended to read:
  395         415.1055 Notification to administrative entities.—
  396         (8) At the conclusion of a protective investigation at a
  397  facility, the department shall notify either the Florida local
  398  advocacy council or state long-term care ombudsman program
  399  council of the results of the investigation. This notification
  400  must be in writing.
  401         Section 100. Subsection (2) of section 415.106, Florida
  402  Statutes, is amended to read:
  403         415.106 Cooperation by the department and criminal justice
  404  and other agencies.—
  405         (2) To ensure coordination, communication, and cooperation
  406  with the investigation of abuse, neglect, or exploitation of
  407  vulnerable adults, the department shall develop and maintain
  408  interprogram agreements or operational procedures among
  409  appropriate departmental programs and the Office of State Long
  410  Term Care Ombudsman Council, the Florida Statewide Advocacy
  411  Council, and other agencies that provide services to vulnerable
  412  adults. These agreements or procedures must cover such subjects
  413  as the appropriate roles and responsibilities of the department
  414  in identifying and responding to reports of abuse, neglect, or
  415  exploitation of vulnerable adults; the provision of services;
  416  and related coordinated activities.
  417         Section 101. Paragraph (g) of subsection (3) of section
  418  415.107, Florida Statutes, is amended to read:
  419         415.107 Confidentiality of reports and records.—
  420         (3) Access to all records, excluding the name of the
  421  reporter which shall be released only as provided in subsection
  422  (6), shall be granted only to the following persons, officials,
  423  and agencies:
  424         (g) Any appropriate official of the Florida advocacy
  425  council or state long-term care ombudsman program council
  426  investigating a report of known or suspected abuse, neglect, or
  427  exploitation of a vulnerable adult.
  428         Section 102. Subsection (20) of section 429.02, Florida
  429  Statutes, is amended to read:
  430         429.02 Definitions.—When used in this part, the term:
  431         (20) “Resident’s representative or designee” means a person
  432  other than the owner, or an agent or employee of the facility,
  433  designated in writing by the resident, if legally competent, to
  434  receive notice of changes in the contract executed pursuant to
  435  s. 429.24; to receive notice of and to participate in meetings
  436  between the resident and the facility owner, administrator, or
  437  staff concerning the rights of the resident; to assist the
  438  resident in contacting the state ombudsman program council if
  439  the resident has a complaint against the facility; or to bring
  440  legal action on behalf of the resident pursuant to s. 429.29.
  441         Section 103. Subsection (2) of section 429.35, Florida
  442  Statutes, is amended to read:
  443         429.35 Maintenance of records; reports.—
  444         (2) Within 60 days after the date of the biennial
  445  inspection visit required under s. 408.811 or within 30 days
  446  after the date of any interim visit, the agency shall forward
  447  the results of the inspection to the state local ombudsman
  448  program council in whose planning and service area, as defined
  449  in part II of chapter 400, the facility is located; to at least
  450  one public library or, in the absence of a public library, the
  451  county seat in the county in which the inspected assisted living
  452  facility is located; and, when appropriate, to the district
  453  Adult Services and Mental Health Program Offices.
  454         Section 104. Subsection (2) of section 429.85, Florida
  455  Statutes, is amended to read:
  456         429.85 Residents’ bill of rights.—
  457         (2) The provider shall ensure that residents and their
  458  legal representatives are made aware of the rights, obligations,
  459  and prohibitions set forth in this part. Residents must also be
  460  given the statewide toll-free telephone number and e-mail
  461  address of the state ombudsman program and the telephone number
  462  of names, addresses, and telephone numbers of the local
  463  ombudsman council and the central abuse hotline where they may
  464  lodge complaints.
  465         Section 105. Subsection (17) of section 744.444, Florida
  466  Statutes, is amended to read:
  467         744.444 Power of guardian without court approval.—Without
  468  obtaining court approval, a plenary guardian of the property, or
  469  a limited guardian of the property within the powers granted by
  470  the order appointing the guardian or an approved annual or
  471  amended guardianship report, may:
  472         (17) Provide confidential information about a ward that is
  473  related to an investigation arising under part I of chapter 400
  474  to a representative of the local or state ombudsman program
  475  council member conducting such an investigation. Any such
  476  ombudsman has shall have a duty to maintain the confidentiality
  477  of such information.
  479  ================= T I T L E  A M E N D M E N T ================
  480         And the title is amended as follows:
  481         Delete line 361
  482  and insert:
  483         development; amending ss. 20.41, 400.021, 400.022,
  484         400.0255, 400.1413, 400.162, 400.19, 400.191, 400.23,
  485         400.235, 415.1034, 415.104, 415.1055, 415.106,
  486         415.107, 429.02, 429.35, 429.85, and 744.444, F.S.;
  487         conforming provisions to changes made by the act;
  488         providing an effective date.