The Florida Senate

400.121  Denial, suspension, revocation of license; moratorium on admissions; administrative fines; procedure; order to increase staffing.--

(1)  The agency may deny an application, revoke or suspend a license, or impose an administrative fine, not to exceed $500 per violation per day, against any applicant or licensee for the following violations by the applicant, licensee, or other controlling interest:

(a)  A violation of any provision of s. 400.102(1);

(b)  A demonstrated pattern of deficient practice;

(c)  Failure to pay any outstanding fines assessed by final order of the agency or final order of the Health Care Financing Administration pursuant to requirements for federal certification. The agency may renew or approve the license of an applicant following the assessment of a fine by final order if such fine has been paid into an escrow account pending an appeal of a final order;

(d)  Exclusion from the Medicare or Medicaid program; or

(e)  An adverse action by a regulatory agency against any other licensed facility that has a common controlling interest with the licensee or applicant against whom the action under this section is being brought. If the adverse action involves solely the management company, the applicant or licensee shall be given 30 days to remedy before final action is taken. If the adverse action is based solely upon actions by a controlling interest, the applicant or licensee may present factors in mitigation of any proposed penalty based upon a showing that such penalty is inappropriate under the circumstances.

All hearings shall be held within the county in which the licensee or applicant operates or applies for a license to operate a facility as defined herein.

(2)  Except as provided in s. 400.23(8), a $500 fine shall be imposed for each violation. Each day a violation of this part occurs constitutes a separate violation and is subject to a separate fine, but in no event may any fine aggregate more than $5,000. A fine may be levied pursuant to this section in lieu of and notwithstanding the provisions of s. 400.23 Fines paid shall be deposited in the Resident Protection Trust Fund and expended as provided in s. 400.063

(3)  The agency shall revoke or deny a nursing home license if the licensee or controlling interest operates a facility in this state that:

(a)  Has had two moratoria imposed by final order for substandard quality of care, as defined by 42 C.F.R. part 483, within any 30-month period;

(b)  Is conditionally licensed for 180 or more continuous days;

(c)  Is cited for two class I deficiencies arising from unrelated circumstances during the same survey or investigation; or

(d)  Is cited for two class I deficiencies arising from separate surveys or investigations within a 30-month period.

The licensee may present factors in mitigation of revocation, and the agency may make a determination not to revoke a license based upon a showing that revocation is inappropriate under the circumstances.

(4)  The agency may issue an order immediately suspending or revoking a license when it determines that any condition in the facility presents a danger to the health, safety, or welfare of the residents in the facility.

(5)(a)  The agency may impose an immediate moratorium on admissions to any facility when the agency determines that any condition in the facility presents a threat to the health, safety, or welfare of the residents in the facility.

(b)  Where the agency has placed a moratorium on admissions on any facility two times within a 7-year period, the agency may suspend the license of the nursing home and the facility's management company, if any. During the suspension, the agency shall take the facility into receivership and shall operate the facility.

(6)  An action taken by the agency to deny, suspend, or revoke a facility's license under this part shall be heard by the Division of Administrative Hearings of the Department of Management Services within 60 days after the assignment of an administrative law judge, unless the time limitation is waived by both parties. The administrative law judge must render a decision within 30 days after receipt of a proposed recommended order.

(7)  The agency is authorized to require a facility to increase staffing beyond the minimum required by law, if the agency has taken administrative action against the facility for care-related deficiencies directly attributable to insufficient staff. Under such circumstances, the facility may request an expedited interim rate increase. The agency shall process the request within 10 days after receipt of all required documentation from the facility. A facility that fails to maintain the required increased staffing is subject to a fine of $500 per day for each day the staffing is below the level required by the agency.

(8)  An administrative proceeding challenging an action taken by the agency pursuant to this section shall be reviewed on the basis of the facts and conditions that resulted in such agency action.

(9)  Notwithstanding any other provision of law to the contrary, agency action in an administrative proceeding under this section may be overcome by the licensee upon a showing by a preponderance of the evidence to the contrary.

(10)  In addition to any other sanction imposed under this part, in any final order that imposes sanctions, the agency may assess costs related to the investigation and prosecution of the case. Payment of agency costs shall be deposited into the Health Care Trust Fund.

History.--s. 11, ch. 69-309; s. 1, ch. 69-267; ss. 19, 35, ch. 69-106; s. 9, ch. 70-361; s. 1, ch. 70-439; s. 3, ch. 76-168; s. 239, ch. 77-147; s. 1, ch. 77-457; s. 19, ch. 78-95; ss. 6, 9, ch. 79-268; ss. 7, 18, ch. 80-186; ss. 2, 3, ch. 81-318; ss. 15, 79, 83, ch. 83-181; s. 30, ch. 93-177; ss. 14, 49, ch. 93-217; s. 36, ch. 96-169; s. 1, ch. 98-248; s. 11, ch. 99-394; s. 20, ch. 2001-45.