Florida Senate - 2018 SB 1260 By Senator Stargel 22-01260B-18 20181260__ 1 A bill to be entitled 2 An act relating to nursing homes and assisted living 3 facilities; creating s. 366.042, F.S.; requiring the 4 Public Service Commission to ensure that public 5 utilities effectively prioritize the restoration of 6 services to certain health care facilities in the 7 event of emergencies; amending s. 400.0238, F.S.; 8 requiring that a claimant’s attorney fees be 9 calculated based on the claimant’s share of punitive 10 damages; revising provisions related to punitive 11 damages to include provisions for cases that are 12 settled; amending s. 400.0239, F.S.; authorizing the 13 Quality of Long-Term Care Facility Improvement Trust 14 Fund to expend certain funds on a grant program 15 administered by the Agency for Health Care 16 Administration to provide funding for nursing home 17 facilities to acquire emergency power sources; 18 amending s. 400.19, F.S.; requiring the agency to 19 determine compliance with statutes and rules relating 20 to emergency power sources in the unannounced 21 inspections of a nursing home facility; amending s. 22 400.23, F.S.; requiring the agency, in consultation 23 with the Department of Health and the Department of 24 Elderly Affairs, to adopt and enforce rules requiring 25 each facility to have an emergency power source and a 26 supply of fuel which meet certain criteria; providing 27 an exception; requiring the agency to adopt rules 28 establishing minimum criteria for a comprehensive 29 emergency management plan that includes a plan to 30 monitor residents and transport them in certain 31 situations to avoid complications from heat exposure; 32 requiring the local emergency management agency to 33 publish a list of facilities whose emergency plans 34 have been approved; amending s. 429.41, F.S.; 35 requiring the Department of Elderly Affairs, in 36 consultation with the agency, the Department of 37 Children and Families, and the Department of Health, 38 to adopt and enforce rules requiring each facility 39 maintain an emergency power source and a supply of 40 fuel which meet certain criteria; providing an 41 exception; providing an effective date. 42 43 Be It Enacted by the Legislature of the State of Florida: 44 45 Section 1. Section 366.042, Florida Statutes, is created to 46 read: 47 366.042 Power restoration priority.—The commission shall 48 ensure that public utilities have effectively prioritized, in 49 the event of an emergency, the restoration of services to 50 critical medical facilities with at least 50 residents, 51 including nursing homes licensed under part II of chapter 400 52 and assisted living facilities licensed under part I of chapter 53 429. 54 Section 2. Subsections (2) and (4) of section 400.0238, 55 Florida Statutes, are amended to read: 56 400.0238 Punitive damages; limitation.— 57 (2) The claimant’s attorney
attorney’sfees, if payable 58 from the judgment, are, to the extent that the fees are based on 59 the punitive damages, calculated based on the claimant’s share 60 of final judgment forpunitive damages. This subsection does not 61 limit the payment of attorney attorney’sfees based upon an 62 award of damages other than punitive damages. 63 (4) Notwithstanding any other law to the contrary, if the 64 claimant has received a final judgment for the amount of65 punitive damages or there is a settlement of a case in which the 66 claimant was granted leave to amend his or her complaint to add 67 a claim for punitive damages, the punitive damages awarded68 pursuant to this sectionshall be equally divided before any 69 distribution to the claimant’s counsel for fees or costs between 70 the claimant and the Quality of Long-Term Care Facility 71 Improvement Trust Fund, in accordance with the following 72 provisions: 73 (a) In the event of a judgment, the clerk of the court 74 shall transmit a copy of the jury verdict to the Chief Financial 75 Officer by certified mail. In the final judgment, the court 76 shall order the percentages of the award, payable as provided 77 herein. In the event of a settlement, the parties shall transmit 78 by certified mail to the Chief Financial Officer a statement of 79 the proportionate share due to the Quality of Long-Term Care 80 Facility Improvement Trust Fund. 81 (b) A settlement agreement entered into between the 82 original parties to the action after a verdict has been returned 83 must provide a proportionate share payable to the Quality of 84 Long-Term Care Facility Improvement Trust Fund specified herein. 85 For purposes of this paragraph, a proportionate share is a 50 86 percent share of that percentage of the settlement amount which 87 the punitive damages portion of the verdict bore to the total of 88 the compensatory and punitive damages in the verdict. 89 (c) The Department of Financial Services shall collect or 90 cause to be collected all payments due the state under this 91 section. Such payments are made to the Chief Financial Officer 92 and deposited in the appropriate fund specified in this 93 subsection. 94 (d) If the full amount of punitive damages awarded cannot 95 be collected, the claimant and the other recipient designated 96 pursuant to this subsection are each entitled to a proportionate 97 share of the punitive damages collected. 98 Section 3. Paragraph (h) is added to subsection (2) of 99 section 400.0239, Florida Statutes, to read: 100 400.0239 Quality of Long-Term Care Facility Improvement 101 Trust Fund.— 102 (2) Expenditures from the trust fund shall be allowable for 103 direct support of the following: 104 (h) From proceeds generated pursuant to s. 400.0238, a 105 grant program administered by the agency to provide funding for 106 nursing home facilities to acquire emergency power sources. 107 Section 4. Subsection (3) of section 400.19, Florida 108 Statutes, is amended to read: 109 400.19 Right of entry and inspection.— 110 (3) The agency shall every 15 months conduct at least one 111 unannounced inspection to determine compliance by the licensee 112 with statutes, and with rules adopted promulgatedunder the113 provisions ofthose statutes, governing minimum standards of 114 construction, emergency power sources, quality and adequacy of 115 care, and rights of residents. The survey shall be conducted 116 every 6 months for the next 2-year period if the facility has 117 been cited for a class I deficiency, has been cited for two or 118 more class II deficiencies arising from separate surveys or 119 investigations within a 60-day period, or has had three or more 120 substantiated complaints within a 6-month period, each resulting 121 in at least one class I or class II deficiency. In addition to 122 any other fees or fines in this part, the agency shall assess a 123 fine for each facility that is subject to the 6-month survey 124 cycle. The fine for the 2-year period shall be $6,000, one-half 125 to be paid at the completion of each survey. The agency may 126 adjust this fine by the change in the Consumer Price Index, 127 based on the 12 months immediately preceding the increase, to 128 cover the cost of the additional surveys. The agency shall 129 verify through subsequent inspection that any deficiency 130 identified during inspection is corrected. However, the agency 131 may verify the correction of a class III or class IV deficiency 132 unrelated to resident rights or resident care without 133 reinspecting the facility if adequate written documentation has 134 been received from the facility, which provides assurance that 135 the deficiency has been corrected. The giving or causing to be 136 given of advance notice of such unannounced inspections by an 137 employee of the agency to any unauthorized person shall 138 constitute cause for suspension of not fewer than 5 working days 139 according to the provisions of chapter 110. 140 Section 5. Paragraphs (d) and (g) of subsection (2) of 141 section 400.23, Florida Statutes, are amended to read: 142 400.23 Rules; evaluation and deficiencies; licensure 143 status.— 144 (2) Pursuant to the intention of the Legislature, the 145 agency, in consultation with the Department of Health and the 146 Department of Elderly Affairs, shall adopt and enforce rules to 147 implement this part and part II of chapter 408, which shall 148 include reasonable and fair criteria in relation to: 149 (d) The equipment essential to the health and welfare of 150 theresidents, including an operational emergency power source 151 and a supply of fuel sufficient to sustain the emergency power 152 source for at least 4 days during a power outage. A facility may 153 contract with a company that is able to timely supply an 154 emergency power source or supply of fuel when requested by the 155 facility, or may store an emergency power source or supply of 156 fuel on site. The emergency power source must provide enough 157 electricity to: 158 1. Consistently maintain an ambient air temperature of 81° 159 F. or less within one or more areas of the facility having 160 enough space to safely hold all of the facility’s residents; and 161 2. Allow for the refrigeration and standard preparation of 162 food and beverages served by the facility to its residents and 163 for the storage of ice. 164 165 A facility located in an area that must be evacuated in a 166 hurricane or which does not plan to house residents in an 167 emergency may be exempted from the emergency power requirements 168 of this paragraph upon request to and with authorization from 169 the agency. 170 (g) The preparation and annual update of a comprehensive 171 emergency management plan. The agency shall adopt rules 172 establishing minimum criteria for the plan after consultation 173 with the Division of Emergency Management. At a minimum, the 174 rules must provide for plan components that address emergency 175 evacuation transportation; adequate sheltering arrangements; 176 postdisaster activities, including emergency power, food, and 177 water; postdisaster transportation; supplies; staffing; 178 emergency equipment; individual identification of residents and 179 transfer of records; a plan to monitor residents to ensure they 180 do not experience complications from heat exposure and to make 181 certain all residents have sufficient access to areas of the 182 facility with an ambient air temperature of 81° F. or less; a 183 plan to safely transport residents to an appropriate facility if 184 a facility’s management knows it will be unable to maintain the 185 residents in a safe temperature range; and responding to family 186 inquiries. The comprehensive emergency management plan is 187 subject to review and approval by the local emergency management 188 agency. During its review, the local emergency management agency 189 shall ensure that the following agencies, at a minimum, are 190 given the opportunity to review the plan: the Department of 191 Elderly Affairs, the Department of Health, the Agency for Health 192 Care Administration, and the Division of Emergency Management. 193 Also, appropriate volunteer organizations must be given the 194 opportunity to review the plan. The local emergency management 195 agency shall complete its review within 60 days and either 196 approve the plan or advise the facility of necessary revisions. 197 The local emergency management agency shall publish a list of 198 facilities whose emergency plans have been approved. 199 Section 6. Paragraph (a) of subsection (1) of section 200 429.41, Florida Statutes, is amended to read: 201 429.41 Rules establishing standards.— 202 (1) It is the intent of the Legislature that rules 203 published and enforced pursuant to this section shall include 204 criteria by which a reasonable and consistent quality of 205 resident care and quality of life may be ensured and the results 206 of such resident care may be demonstrated. Such rules shall also 207 ensure a safe and sanitary environment that is residential and 208 noninstitutional in design or nature. It is further intended 209 that reasonable efforts be made to accommodate the needs and 210 preferences of residents to enhance the quality of life in a 211 facility. Uniform firesafety standards for assisted living 212 facilities shall be established by the State Fire Marshal 213 pursuant to s. 633.206. The agency, in consultation with the 214 department, may adopt rules to administer the requirements of 215 part II of chapter 408. In order to provide safe and sanitary 216 facilities and the highest quality of resident care 217 accommodating the needs and preferences of residents, the 218 department, in consultation with the agency, the Department of 219 Children and Families, and the Department of Health, shall adopt 220 rules, policies, and procedures to administer this part, which 221 must include reasonable and fair minimum standards in relation 222 to: 223 (a) The requirements for and maintenance of facilities, not 224 in conflict with chapter 553, relating to plumbing, heating, 225 cooling, lighting, ventilation, living space, and other housing 226 conditions, which will ensure the health, safety, and comfort of 227 residents suitable to the size of the structure. 228 1. Firesafety evacuation capability determination.—An 229 evacuation capability evaluation for initial licensure shall be 230 conducted within 6 months after the date of licensure. 231 2. Firesafety requirements.— 232 a. The National Fire Protection Association, Life Safety 233 Code, NFPA 101 and 101A, current editions, shall be used in 234 determining the uniform firesafety code adopted by the State 235 Fire Marshal for assisted living facilities, pursuant to s. 236 633.206. 237 b. A local government or a utility may charge fees only in 238 an amount not to exceed the actual expenses incurred by the 239 local government or the utility relating to the installation and 240 maintenance of an automatic fire sprinkler system in a licensed 241 assisted living facility structure. 242 c. All licensed facilities must have an annual fire 243 inspection conducted by the local fire marshal or authority 244 having jurisdiction. 245 d. An assisted living facility that is issued a building 246 permit or certificate of occupancy before July 1, 2016, may at 247 its option and after notifying the authority having 248 jurisdiction, remain under the provisions of the 1994 and 1995 249 editions of the National Fire Protection Association, Life 250 Safety Code, NFPA 101, and NFPA 101A. The facility opting to 251 remain under such provisions may make repairs, modernizations, 252 renovations, or additions to, or rehabilitate, the facility in 253 compliance with NFPA 101, 1994 edition, and may use utilizethe 254 alternative approaches to life safety in compliance with NFPA 255 101A, 1995 edition. However, a facility for which a building 256 permit or certificate of occupancy is issued before July 1, 257 2016, that undergoes Level III building alteration or 258 rehabilitation, as defined in the Florida Building Code, or 259 seeks to use utilizefeatures not authorized under the 1994 or 260 1995 editions of the Life Safety Code must thereafter comply 261 with all aspects of the uniform firesafety standards established 262 under s. 633.206, and the Florida Fire Prevention Code, in 263 effect for assisted living facilities as adopted by the State 264 Fire Marshal. 265 3. Resident elopement requirements.—Facilities are required 266 to conduct a minimum of two resident elopement prevention and 267 response drills per year. All administrators and direct care 268 staff must participate in the drills which shall include a 269 review of procedures to address resident elopement. Facilities 270 must document the implementation of the drills and ensure that 271 the drills are conducted in a manner consistent with the 272 facility’s resident elopement policies and procedures. 273 4. Emergency power sources for use during power outages. 274 Facilities are required to maintain an operational emergency 275 power source and a supply of fuel sufficient to sustain the 276 emergency power source for at least 4 days during a power 277 outage. A facility may contract with a company that is able to 278 timely supply an emergency power source or supply of fuel when 279 requested by the facility, or may store an emergency power 280 source or supply of fuel on site. The emergency power source 281 must provide enough electricity to: 282 a. Consistently maintain an ambient air temperature of 81° 283 F. or less within one or more areas of the facility having 284 enough space to safely hold all of the facility’s residents; and 285 b. Allow for the refrigeration and standard preparation of 286 food and beverages served by the facility to its residents and 287 for the storage of ice. 288 289 A facility located in an area that must be evacuated in a 290 hurricane or which does not plan to house residents in an 291 emergency may be exempted from the emergency power requirements 292 of this subparagraph upon request to and with authorization from 293 the agency. 294 Section 7. This act shall take effect July 1, 2018.