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2012 Florida Statutes
Chapter 400
NURSING HOMES AND RELATED HEALTH CARE FACILITIES
NURSING HOMES AND RELATED HEALTH CARE FACILITIES
CHAPTER 400
NURSING HOMES AND RELATED HEALTH CARE FACILITIES
PART I
LONG-TERM CARE FACILITIES: OMBUDSMAN PROGRAM(ss. 400.0060-400.0091)
PART II
NURSING HOMES(ss. 400.011-400.334)
PART III
HOME HEALTH AGENCIES(ss. 400.461-400.5185)
PART IV
HOSPICES(ss. 400.6005-400.611)
PART V
INTERMEDIATE, SPECIAL SERVICES, AND TRANSITIONAL LIVING FACILITIES(ss. 400.701-400.805)
PART VI
PRESCRIBED PEDIATRIC EXTENDED CARE CENTERS(ss. 400.901-400.916)
PART VII
HOME MEDICAL EQUIPMENT PROVIDERS(ss. 400.92-400.957)
PART VIII
INTERMEDIATE CARE FACILITIES FOR DEVELOPMENTALLY DISABLED PERSONS(ss. 400.960-400.969)
PART IX
HEALTH CARE SERVICES POOLS(s. 400.980)
PART X
HEALTH CARE CLINIC ACT(ss. 400.990-400.995)
PART I
LONG-TERM CARE FACILITIES:OMBUDSMAN PROGRAM
400.0060 Definitions.
400.0061 Legislative findings and intent; long-term care facilities.
400.0063 Establishment of Office of State Long-Term Care Ombudsman; designation of ombudsman and legal advocate.
400.0065 State Long-Term Care Ombudsman; duties and responsibilities.
400.0067 State Long-Term Care Ombudsman Council; duties; membership.
400.0069 Local long-term care ombudsman councils; duties; membership.
400.0070 Conflicts of interest.
400.0071 State Long-Term Care Ombudsman Program complaint procedures.
400.0073 State and local ombudsman council investigations.
400.0074 Local ombudsman council onsite administrative assessments.
400.0075 Complaint notification and resolution procedures.
400.0077 Confidentiality.
400.0078 Citizen access to State Long-Term Care Ombudsman Program services.
400.0079 Immunity.
400.0081 Access to facilities, residents, and records.
400.0083 Interference; retaliation; penalties.
400.0087 Department oversight; funding.
400.0089 Complaint data reports.
400.0091 Training.
400.0060 Definitions.—When used in this part, unless the context clearly dictates otherwise, the term:
(1) “Administrative assessment” means a review of conditions in a long-term care facility which impact the rights, health, safety, and welfare of residents with the purpose of noting needed improvement and making recommendations to enhance the quality of life for residents.
(2) “Agency” means the Agency for Health Care Administration.
(3) “Department” means the Department of Elderly Affairs.
(4) “Local council” means a local long-term care ombudsman council designated by the ombudsman pursuant to s. 400.0069. Local councils are also known as district long-term care ombudsman councils or district councils.
(5) “Long-term care facility” means a nursing home facility, assisted living facility, adult family-care home, board and care facility, or any other similar residential adult care facility.
(6) “Office” means the Office of State Long-Term Care Ombudsman created by s. 400.0063.
(7) “Ombudsman” means the individual appointed by the Secretary of Elderly Affairs to head the Office of State Long-Term Care Ombudsman.
(8) “Resident” means an individual 60 years of age or older who resides in a long-term care facility.
(9) “Secretary” means the Secretary of Elderly Affairs.
(10) “State council” means the State Long-Term Care Ombudsman Council created by s. 400.0067.
History.—ss. 1, 30, ch. 93-177; s. 4, ch. 95-210; s. 1, ch. 2006-121.
400.0061 Legislative findings and intent; long-term care facilities.—
(1) The Legislature finds that conditions in long-term care facilities in this state are such that the rights, health, safety, and welfare of residents are not fully ensured by rules of the Department of Elderly Affairs or the Agency for Health Care Administration or by the good faith of owners or operators of long-term care facilities. Furthermore, there is a need for a formal mechanism whereby a long-term care facility resident, a representative of a long-term care facility resident, or any other concerned citizen may make a complaint against the facility or its employees, or against other persons who are in a position to restrict, interfere with, or threaten the rights, health, safety, or welfare of a long-term care facility resident. The Legislature finds that concerned citizens are often more effective advocates for the rights of others than governmental agencies. The Legislature further finds that in order to be eligible to receive an allotment of funds authorized and appropriated under the federal Older Americans Act, the state must establish and operate an Office of State Long-Term Care Ombudsman, to be headed by the State Long-Term Care Ombudsman, and carry out a long-term care ombudsman program.
(2) It is the intent of the Legislature, therefore, to utilize voluntary citizen ombudsman councils under the leadership of the ombudsman, and through them to operate an ombudsman program which shall, without interference by any executive agency, undertake to discover, investigate, and determine the presence of conditions or individuals which constitute a threat to the rights, health, safety, or welfare of the residents of long-term care facilities. To ensure that the effectiveness and efficiency of such investigations are not impeded by advance notice or delay, the Legislature intends that the ombudsman and ombudsman councils and their designated representatives not be required to obtain warrants in order to enter into or conduct investigations or onsite administrative assessments of long-term care facilities. It is the further intent of the Legislature that the environment in long-term care facilities be conducive to the dignity and independence of residents and that investigations by ombudsman councils shall further the enforcement of laws, rules, and regulations that safeguard the health, safety, and welfare of residents.
History.—ss. 2, 30, ch. 93-177; s. 758, ch. 95-148; s. 111, ch. 99-8; s. 2, ch. 2006-121.
400.0063 Establishment of Office of State Long-Term Care Ombudsman; designation of ombudsman and legal advocate.—
(1) There is created an Office of State Long-Term Care Ombudsman in the Department of Elderly Affairs.
(2)(a) The Office of State Long-Term Care Ombudsman shall be headed by the State Long-Term Care Ombudsman, who shall serve on a full-time basis and shall personally, or through representatives of the office, carry out the purposes and functions of the office in accordance with state and federal law.
(b) The ombudsman shall be appointed by and shall serve at the pleasure of the Secretary of Elderly Affairs. The secretary shall appoint a person who has expertise and experience in the fields of long-term care and advocacy to serve as ombudsman.
(3)(a) There is created in the office the position of legal advocate, who shall be selected by and serve at the pleasure of the ombudsman and shall be a member in good standing of The Florida Bar.
(b) The duties of the legal advocate shall include, but not be limited to:
1. Assisting the ombudsman in carrying out the duties of the office with respect to the abuse, neglect, or violation of rights of residents of long-term care facilities.
2. Assisting the state and local councils in carrying out their responsibilities under this part.
3. Pursuing administrative, legal, and other appropriate remedies on behalf of residents.
4. Serving as legal counsel to the state and local councils, or individual members thereof, against whom any suit or other legal action is initiated in connection with the performance of the official duties of the councils or an individual member.
History.—ss. 3, 30, ch. 93-177; s. 41, ch. 95-196; s. 121, ch. 2000-349; s. 41, ch. 2000-367; s. 20, ch. 2002-223; s. 3, ch. 2006-121; s. 20, ch. 2006-197.
400.0065 State Long-Term Care Ombudsman; duties and responsibilities.—
(1) The purpose of the Office of State Long-Term Care Ombudsman shall be to:
(a) Identify, investigate, and resolve complaints made by or on behalf of residents of long-term care facilities relating to actions or omissions by providers or representatives of providers of long-term care services, other public or private agencies, guardians, or representative payees that may adversely affect the health, safety, welfare, or rights of the residents.
(b) Provide services that assist in protecting the health, safety, welfare, and rights of residents.
(c) Inform residents, their representatives, and other citizens about obtaining the services of the State Long-Term Care Ombudsman Program and its representatives.
(d) Ensure that residents have regular and timely access to the services provided through the office and that residents and complainants receive timely responses from representatives of the office to their complaints.
(e) Represent the interests of residents before governmental agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents.
(f) Administer the state and local councils.
(g) Analyze, comment on, and monitor the development and implementation of federal, state, and local laws, rules, and regulations, and other governmental policies and actions, that pertain to the health, safety, welfare, and rights of the residents, with respect to the adequacy of long-term care facilities and services in the state, and recommend any changes in such laws, rules, regulations, policies, and actions as the office determines to be appropriate and necessary.
(h) Provide technical support for the development of resident and family councils to protect the well-being and rights of residents.
(2) The State Long-Term Care Ombudsman shall have the duty and authority to:
(a) Establish and coordinate local councils throughout the state.
(b) Perform the duties specified in state and federal law, rules, and regulations.
(c) Within the limits of appropriated federal and state funding, employ such personnel as are necessary to perform adequately the functions of the office and provide or contract for legal services to assist the state and local councils in the performance of their duties. Staff positions established for the purpose of coordinating the activities of each local council and assisting its members may be filled by the ombudsman after approval by the secretary. Notwithstanding any other provision of this part, upon certification by the ombudsman that the staff member hired to fill any such position has completed the initial training required under s. 400.0091, such person shall be considered a representative of the State Long-Term Care Ombudsman Program for purposes of this part.
(d) Contract for services necessary to carry out the activities of the office.
(e) Apply for, receive, and accept grants, gifts, or other payments, including, but not limited to, real property, personal property, and services from a governmental entity or other public or private entity or person, and make arrangements for the use of such grants, gifts, or payments.
(f) Coordinate, to the greatest extent possible, state and local ombudsman services with the protection and advocacy systems for individuals with developmental disabilities and mental illnesses and with legal assistance programs for the poor through adoption of memoranda of understanding and other means.
(g) Enter into a cooperative agreement with the Statewide Advocacy Council for the purpose of coordinating and avoiding duplication of advocacy services provided to residents.
(h) Enter into a cooperative agreement with the Medicaid Fraud Division as prescribed under s. 731(e)(2)(B) of the Older Americans Act.
(i) Prepare an annual report describing the activities carried out by the office, the state council, and the local councils in the year for which the report is prepared. The ombudsman shall submit the report to the secretary at least 30 days before the convening of the regular session of the Legislature. The secretary shall in turn submit the report to the United States Assistant Secretary for Aging, the Governor, the President of the Senate, the Speaker of the House of Representatives, the Secretary of Children and Family Services, and the Secretary of Health Care Administration. The report shall, at a minimum:
1. Contain and analyze data collected concerning complaints about and conditions in long-term care facilities and the disposition of such complaints.
2. Evaluate the problems experienced by residents.
3. Analyze the successes of the ombudsman program during the preceding year, including an assessment of how successfully the program has carried out its responsibilities under the Older Americans Act.
4. Provide recommendations for policy, regulatory, and statutory changes designed to solve identified problems; resolve residents’ complaints; improve residents’ lives and quality of care; protect residents’ rights, health, safety, and welfare; and remove any barriers to the optimal operation of the State Long-Term Care Ombudsman Program.
5. Contain recommendations from the State Long-Term Care Ombudsman Council regarding program functions and activities and recommendations for policy, regulatory, and statutory changes designed to protect residents’ rights, health, safety, and welfare.
6. Contain any relevant recommendations from the local councils regarding program functions and activities.
History.—ss. 4, 30, ch. 93-177; s. 112, ch. 99-8; s. 122, ch. 2000-349; s. 42, ch. 2000-367; s. 21, ch. 2002-223; s. 4, ch. 2006-121.
400.0067 State Long-Term Care Ombudsman Council; duties; membership.—
(1) There is created within the Office of State Long-Term Care Ombudsman, the State Long-Term Care Ombudsman Council.
(2) The State Long-Term Care Ombudsman Council shall:
(a) Serve as an advisory body to assist the ombudsman in reaching a consensus among local councils on issues affecting residents and impacting the optimal operation of the program.
(b) Serve as an appellate body in receiving from the local councils complaints not resolved at the local level. Any individual member or members of the state council may enter any long-term care facility involved in an appeal, pursuant to the conditions specified in s. 400.0074(2).
(c) Assist the ombudsman to discover, investigate, and determine the existence of abuse or neglect in any long-term care facility, and work with the adult protective services program as required in ss. 415.101-415.113.
(d) Assist the ombudsman in eliciting, receiving, responding to, and resolving complaints made by or on behalf of residents.
(e) Elicit and coordinate state, local, and voluntary organizational assistance for the purpose of improving the care received by residents.
(f) Assist the ombudsman in preparing the annual report described in s. 400.0065.
(3) The State Long-Term Care Ombudsman Council shall be composed of one active local council member elected by each local council plus three at-large members appointed by the Governor.
(a) Each local council shall elect by majority vote a representative from among the council members to represent the interests of the local council on the state council. A local council chair may not serve as the representative of the local council on the state council.
(b)1. The secretary, after consulting with the ombudsman, shall submit to the Governor a list of persons recommended for appointment to the at-large positions on the state council. The list shall not include the name of any person who is currently serving on a local council.
2. The Governor shall appoint three at-large members chosen from the list.
3. If the Governor does not appoint an at-large member to fill a vacant position within 60 days after the list is submitted, the secretary, after consulting with the ombudsman, shall appoint an at-large member to fill that vacant position.
(c)1. All state council members shall serve 3-year terms.
2. A member of the state council may not serve more than two consecutive terms.
3. A local council may recommend removal of its elected representative from the state council by a majority vote. If the council votes to remove its representative, the local council chair shall immediately notify the ombudsman. The secretary shall advise the Governor of the local council’s vote upon receiving notice from the ombudsman.
4. The position of any member missing three state council meetings within a 1-year period without cause may be declared vacant by the ombudsman. The findings of the ombudsman regarding cause shall be final and binding.
5. Any vacancy on the state council shall be filled in the same manner as the original appointment.
(d)1. The state council shall elect a chair to serve for a term of 1 year. A chair may not serve more than two consecutive terms.
2. The chair shall select a vice chair from among the members. The vice chair shall preside over the state council in the absence of the chair.
3. The chair may create additional executive positions as necessary to carry out the duties of the state council. Any person appointed to an executive position shall serve at the pleasure of the chair, and his or her term shall expire on the same day as the term of the chair.
4. A chair may be immediately removed from office prior to the expiration of his or her term by a vote of two-thirds of all state council members present at any meeting at which a quorum is present. If a chair is removed from office prior to the expiration of his or her term, a replacement chair shall be chosen during the same meeting in the same manner as described in this paragraph, and the term of the replacement chair shall begin immediately. The replacement chair shall serve for the remainder of the term and is eligible to serve two subsequent consecutive terms.
(e)1. The state council shall meet upon the call of the chair or upon the call of the ombudsman. The council shall meet at least quarterly but may meet more frequently as needed.
2. A quorum shall be considered present if more than 50 percent of all active state council members are in attendance at the same meeting.
3. The state council may not vote on or otherwise make any decisions resulting in a recommendation that will directly impact the state council or any local council, outside of a publicly noticed meeting at which a quorum is present.
(f) Members shall receive no compensation but shall, with approval from the ombudsman, be reimbursed for per diem and travel expenses as provided in s. 112.061.
History.—ss. 5, 30, 31, ch. 93-177; s. 759, ch. 95-148; s. 113, ch. 99-8; s. 209, ch. 99-13; s. 15, ch. 2000-263; s. 11, ch. 2000-305; s. 124, ch. 2000-349; s. 44, ch. 2000-367; s. 22, ch. 2002-223; s. 6, ch. 2006-121.
400.0069 Local long-term care ombudsman councils; duties; membership.—
(1)(a) The ombudsman shall designate local long-term care ombudsman councils to carry out the duties of the State Long-Term Care Ombudsman Program within local communities. Each local council shall function under the direction of the ombudsman.
(b) The ombudsman shall ensure that there is at least one local council operating in each of the department’s planning and service areas. The ombudsman may create additional local councils as necessary to ensure that residents throughout the state have adequate access to State Long-Term Care Ombudsman Program services. The ombudsman, after approval from the secretary, shall designate the jurisdictional boundaries of each local council.
(2) The duties of the local councils are to:
(a) Serve as a third-party mechanism for protecting the health, safety, welfare, and civil and human rights of residents.
(b) Discover, investigate, and determine the existence of abuse or neglect in any long-term care facility and to use the procedures provided for in ss. 415.101-415.113 when applicable.
(c) Elicit, receive, investigate, respond to, and resolve complaints made by or on behalf of residents.
(d) Review and, if necessary, comment on all existing or proposed rules, regulations, and other governmental policies and actions relating to long-term care facilities that may potentially have an effect on the rights, health, safety, and welfare of residents.
(e) Review personal property and money accounts of residents who are receiving assistance under the Medicaid program pursuant to an investigation to obtain information regarding a specific complaint or problem.
(f) Recommend that the ombudsman and the legal advocate seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents.
(g) Carry out other activities that the ombudsman determines to be appropriate.
(3) In order to carry out the duties specified in subsection (2), a member of a local council is authorized to enter any long-term care facility without notice or first obtaining a warrant, subject to the provisions of s. 400.0074(2).
(4) Each local council shall be composed of members whose primary residence is located within the boundaries of the local council’s jurisdiction.
(a) The ombudsman shall strive to ensure that each local council include the following persons as members:
1. At least one medical or osteopathic physician whose practice includes or has included a substantial number of geriatric patients and who may practice in a long-term care facility;
2. At least one registered nurse who has geriatric experience;
3. At least one licensed pharmacist;
4. At least one registered dietitian;
5. At least six nursing home residents or representative consumer advocates for nursing home residents;
6. At least three residents of assisted living facilities or adult family-care homes or three representative consumer advocates for alternative long-term care facility residents;
7. At least one attorney; and
8. At least one professional social worker.
(b) In no case shall the medical director of a long-term care facility or an employee of the agency, the department, the Department of Children and Family Services, or the Agency for Persons with Disabilities serve as a member or as an ex officio member of a council.
(5)(a) Individuals wishing to join a local council shall submit an application to the ombudsman. The ombudsman shall review the individual’s application and advise the secretary of his or her recommendation for approval or disapproval of the candidate’s membership on the local council. If the secretary approves of the individual’s membership, the individual shall be appointed as a member of the local council.
(b) The secretary may rescind the ombudsman’s approval of a member on a local council at any time. If the secretary rescinds the approval of a member on a local council, the ombudsman shall ensure that the individual is immediately removed from the local council on which he or she serves and the individual may no longer represent the State Long-Term Care Ombudsman Program until the secretary provides his or her approval.
(c) A local council may recommend the removal of one or more of its members by submitting to the ombudsman a resolution adopted by a two-thirds vote of the members of the council stating the name of the member or members recommended for removal and the reasons for the recommendation. If such a recommendation is adopted by a local council, the local council chair or district coordinator shall immediately report the council’s recommendation to the ombudsman. The ombudsman shall review the recommendation of the local council and advise the secretary of his or her recommendation regarding removal of the council member or members.
(6)(a) Each local council shall elect a chair for a term of 1 year. There shall be no limitation on the number of terms that an approved member of a local council may serve as chair.
(b) The chair shall select a vice chair from among the members of the council. The vice chair shall preside over the council in the absence of the chair.
(c) The chair may create additional executive positions as necessary to carry out the duties of the local council. Any person appointed to an executive position shall serve at the pleasure of the chair, and his or her term shall expire on the same day as the term of the chair.
(d) A chair may be immediately removed from office prior to the expiration of his or her term by a vote of two-thirds of the members of the local council. If any chair is removed from office prior to the expiration of his or her term, a replacement chair shall be elected during the same meeting, and the term of the replacement chair shall begin immediately. The replacement chair shall serve for the remainder of the term of the person he or she replaced.
(7) Each local council shall meet upon the call of its chair or upon the call of the ombudsman. Each local council shall meet at least once a month but may meet more frequently if necessary.
(8) A member of a local council shall receive no compensation but shall, with approval from the ombudsman, be reimbursed for travel expenses both within and outside the jurisdiction of the local council in accordance with the provisions of s. 112.061.
(9) The local councils are authorized to call upon appropriate agencies of state government for such professional assistance as may be needed in the discharge of their duties. All state agencies shall cooperate with the local councils in providing requested information and agency representation at council meetings.
History.—s. 27, ch. 75-233; s. 3, ch. 76-168; s. 136, ch. 77-104; s. 8, ch. 77-401; s. 1, ch. 77-457; s. 4, ch. 78-323; s. 2, ch. 78-393; ss. 6, 12, ch. 80-198; ss. 2, 3, 5, ch. 81-184; ss. 2, 3, ch. 81-318; ss. 1, 4, ch. 82-46; ss. 15, 19, ch. 82-148; ss. 35, 79, 80, 83, 84, ch. 83-181; s. 39, ch. 86-220; s. 2, ch. 87-396; s. 7, ch. 89-294; s. 3, ch. 91-115; s. 27, ch. 92-33; ss. 6, 29, 30, 31, ch. 93-177; s. 49, ch. 93-217; s. 760, ch. 95-148; s. 5, ch. 95-210; s. 114, ch. 99-8; s. 125, ch. 2000-349; s. 45, ch. 2000-367; s. 23, ch. 2002-223; s. 7, ch. 2006-121; s. 21, ch. 2006-197.
Note.—Former s. 400.307.
400.0070 Conflicts of interest.—
(1) The ombudsman shall not:
(a) Have a direct involvement in the licensing or certification of, or an ownership or investment interest in, a long-term care facility or a provider of a long-term care service.
(b) Be employed by, or participate in the management of, a long-term care facility.
(c) Receive, or have a right to receive, directly or indirectly, remuneration, in cash or in kind, under a compensation agreement with the owner or operator of a long-term care facility.
(2) Each employee of the office, each state council member, and each local council member shall certify that he or she has no conflict of interest.
(3) The department shall define by rule:
(a) Situations that constitute a person having a conflict of interest that could materially affect the objectivity or capacity of a person to serve on an ombudsman council, or as an employee of the office, while carrying out the purposes of the State Long-Term Care Ombudsman Program as specified in this part.
(b) The procedure by which a person listed in subsection (2) shall certify that he or she has no conflict of interest.
History.—s. 8, ch. 2006-121.
400.0071 State Long-Term Care Ombudsman Program complaint procedures.—The department shall adopt rules implementing state and local complaint procedures. The rules must include procedures for:
(1) Receiving complaints against a long-term care facility or an employee of a long-term care facility.
(2) Conducting investigations of a long-term care facility or an employee of a long-term care facility subsequent to receiving a complaint.
(3) Conducting onsite administrative assessments of long-term care facilities.
History.—s. 28, ch. 75-233; s. 3, ch. 76-168; s. 9, ch. 77-401; s. 1, ch. 77-457; ss. 7, 12, ch. 80-198; ss. 4, 6, ch. 81-184; ss. 2, 3, ch. 81-318; s. 4, ch. 82-46; ss. 36, 79, 83, ch. 83-181; ss. 16, 29, 30, ch. 93-177; s. 49, ch. 93-217; s. 126, ch. 2000-349; s. 46, ch. 2000-367; s. 24, ch. 2002-223; s. 9, ch. 2006-121.
Note.—Former s. 400.311.
400.0073 State and local ombudsman council investigations.—
(1) A local council shall investigate, within a reasonable time after a complaint is made, any complaint of a resident, a representative of a resident, or any other credible source based on an action or omission by an administrator, an employee, or a representative of a long-term care facility which might be:
(a) Contrary to law;
(b) Unreasonable, unfair, oppressive, or unnecessarily discriminatory, even though in accordance with law;
(c) Based on a mistake of fact;
(d) Based on improper or irrelevant grounds;
(e) Unaccompanied by an adequate statement of reasons;
(f) Performed in an inefficient manner; or
(g) Otherwise adversely affecting the health, safety, welfare, or rights of a resident.
(2) In an investigation, both the state and local councils have the authority to hold public hearings.
(3) Subsequent to an appeal from a local council, the state council may investigate any complaint received by the local council involving a long-term care facility or a resident.
(4) If the ombudsman or any state or local council member is not allowed to enter a long-term care facility, the administrator of the facility shall be considered to have interfered with a representative of the office, the state council, or the local council in the performance of official duties as described in s. 400.0083(1) and to have committed a violation of this part. The ombudsman shall report a facility’s refusal to allow entry to the agency, and the agency shall record the report and take it into consideration when determining actions allowable under s. 400.102, s. 400.121, s. 429.14, s. 429.19, s. 429.69, or s. 429.71.
History.—s. 29, ch. 75-233; s. 3, ch. 76-168; s. 10, ch. 77-401; s. 1, ch. 77-457; ss. 8, 12, ch. 80-198; ss. 4, 6, ch. 81-184; ss. 2, 3, ch. 81-318; s. 4, ch. 82-46; ss. 16, 19, ch. 82-148; ss. 37, 79, 83, ch. 83-181; ss. 7, 29, 30, ch. 93-177; s. 49, ch. 93-217; s. 761, ch. 95-148; s. 127, ch. 2000-349; s. 47, ch. 2000-367; s. 1, ch. 2001-45; s. 10, ch. 2006-121; s. 22, ch. 2006-197; s. 76, ch. 2007-5; s. 53, ch. 2007-230.
Note.—Former s. 400.314.
400.0074 Local ombudsman council onsite administrative assessments.—
(1) In addition to any specific investigation conducted pursuant to a complaint, the local council shall conduct, at least annually, an onsite administrative assessment of each nursing home, assisted living facility, and adult family-care home within its jurisdiction. This administrative assessment shall focus on factors affecting the rights, health, safety, and welfare of the residents. Each local council is encouraged to conduct a similar onsite administrative assessment of each additional long-term care facility within its jurisdiction.
(2) An onsite administrative assessment conducted by a local council shall be subject to the following conditions:
(a) To the extent possible and reasonable, the administrative assessments shall not duplicate the efforts of the agency surveys and inspections conducted under part II of this chapter and parts I and II of chapter 429.
(b) An administrative assessment shall be conducted at a time and for a duration necessary to produce the information required to carry out the duties of the local council.
(c) Advance notice of an administrative assessment may not be provided to a long-term care facility, except that notice of followup assessments on specific problems may be provided.
(d) A local council member physically present for the administrative assessment shall identify himself or herself and cite the specific statutory authority for his or her assessment of the facility.
(e) An administrative assessment may not unreasonably interfere with the programs and activities of residents.
(f) A local council member may not enter a single-family residential unit within a long-term care facility during an administrative assessment without the permission of the resident or the representative of the resident.
(g) An administrative assessment must be conducted in a manner that will impose no unreasonable burden on a long-term care facility.
(3) Regardless of jurisdiction, the ombudsman may authorize a state or local council member to assist another local council to perform the administrative assessments described in this section.
(4) An onsite administrative assessment may not be accomplished by forcible entry. However, if the ombudsman or a state or local council member is not allowed to enter a long-term care facility, the administrator of the facility shall be considered to have interfered with a representative of the office, the state council, or the local council in the performance of official duties as described in s. 400.0083(1) and to have committed a violation of this part. The ombudsman shall report the refusal by a facility to allow entry to the agency, and the agency shall record the report and take it into consideration when determining actions allowable under s. 400.102, s. 400.121, s. 429.14, s. 429.19, s. 429.69, or s. 429.71.
History.—s. 11, ch. 2006-121; s. 77, ch. 2007-5; s. 54, ch. 2007-230.
400.0075 Complaint notification and resolution procedures.—
(1)(a) Any complaint or problem verified by an ombudsman council as a result of an investigation or onsite administrative assessment, which complaint or problem is determined to require remedial action by the local council, shall be identified and brought to the attention of the long-term care facility administrator in writing. Upon receipt of such document, the administrator, with the concurrence of the local council chair, shall establish target dates for taking appropriate remedial action. If, by the target date, the remedial action is not completed or forthcoming, the local council chair may, after obtaining approval from the ombudsman and a majority of the members of the local council:
1. Extend the target date if the chair has reason to believe such action would facilitate the resolution of the complaint.
2. In accordance with s. 400.0077, publicize the complaint, the recommendations of the council, and the response of the long-term care facility.
3. Refer the complaint to the state council.
(b) If the local council chair believes that the health, safety, welfare, or rights of the resident are in imminent danger, the chair shall notify the ombudsman or legal advocate, who, after verifying that such imminent danger exists, shall seek immediate legal or administrative remedies to protect the resident.
(c) If the ombudsman has reason to believe that the long-term care facility or an employee of the facility has committed a criminal act, the ombudsman shall provide the local law enforcement agency with the relevant information to initiate an investigation of the case.
(2)(a) Upon referral from a local council, the state council shall assume the responsibility for the disposition of the complaint. If a long-term care facility fails to take action on a complaint by the state council, the state council may, after obtaining approval from the ombudsman and a majority of the state council members:
1. In accordance with s. 400.0077, publicize the complaint, the recommendations of the local or state council, and the response of the long-term care facility.
2. Recommend to the department and the agency a series of facility reviews pursuant to s. 400.19, s. 429.34, or s. 429.67 to ensure correction and nonrecurrence of conditions that give rise to complaints against a long-term care facility.
3. Recommend to the department and the agency that the long-term care facility no longer receive payments under any state assistance program, including Medicaid.
4. Recommend to the department and the agency that procedures be initiated for revocation of the long-term care facility’s license in accordance with chapter 120.
(b) If the state council chair believes that the health, safety, welfare, or rights of the resident are in imminent danger, the chair shall notify the ombudsman or legal advocate, who, after verifying that such imminent danger exists, shall seek immediate legal or administrative remedies to protect the resident.
(c) If the ombudsman has reason to believe that the long-term care facility or an employee of the facility has committed a criminal act, the ombudsman shall provide local law enforcement with the relevant information to initiate an investigation of the case.
History.—s. 30, ch. 75-233; s. 3, ch. 76-168; s. 244, ch. 77-147; s. 11, ch. 77-401; s. 1, ch. 77-457; s. 19, ch. 78-95; ss. 14, 18, ch. 80-186; ss. 9, 12, ch. 80-198; ss. 4, 6, ch. 81-184; ss. 2, 3, ch. 81-318; s. 4, ch. 82-46; ss. 17, 19, ch. 82-148; ss. 38, 79, 83, ch. 83-181; s. 17, ch. 90-347; ss. 8, 29, 30, ch. 93-177; s. 49, ch. 93-217; s. 762, ch. 95-148; s. 42, ch. 95-196; s. 115, ch. 99-8; s. 128, ch. 2000-349; s. 48, ch. 2000-367; s. 44, ch. 2004-5; s. 12, ch. 2006-121; s. 78, ch. 2007-5.
Note.—Former s. 400.317.
400.0077 Confidentiality.—
(1) The following are confidential and exempt from the provisions of s. 119.07(1):
(a) Resident records held by the ombudsman or by the state or a local ombudsman council.
(b) The names or identities of the complainants or residents involved in a complaint, including any problem identified by an ombudsman council as a result of an investigation, unless:
1. The complainant or resident, or the legal representative of the complainant or resident, consents to the disclosure in writing;
2. The complainant or resident consents orally and the consent is documented contemporaneously in writing by the ombudsman council requesting such consent; or
3. The disclosure is required by court order.
(c) Any other information about a complaint, including any problem identified by an ombudsman council as a result of an investigation, unless an ombudsman council determines that the information does not meet any of the criteria specified in 1s. 119.14(4)(b); or unless the information is to collect data for submission to those entities specified in s. 712(c) of the federal Older Americans Act for the purpose of identifying and resolving significant problems.
(2) That portion of an ombudsman council meeting in which an ombudsman council discusses information that is confidential and exempt from the provisions of s. 119.07(1) is closed to the public and exempt from the provisions of s. 286.011.
(3) All other matters before the council shall be open to the public and subject to chapter 119 and s. 286.011.
(4) Members of any state or local ombudsman council shall not be required to testify in any court with respect to matters held to be confidential under s. 429.14 except as may be necessary to enforce the provisions of this act.
(5) Subject to the provisions of this section, the Office of State Long-Term Care Ombudsman shall adopt rules for the disclosure by the ombudsman or local ombudsman councils of files maintained by the program.
(6) This section does not limit the subpoena power of the Attorney General pursuant to s. 409.920(10)(b).
History.—ss. 31, 32, ch. 75-233; s. 3, ch. 76-168; s. 12, ch. 77-401; s. 1, ch. 77-457; ss. 10, 12, ch. 80-198; ss. 4, 6, ch. 81-184; ss. 2, 3, ch. 81-318; s. 4, ch. 82-46; ss. 39, 79, 83, ch. 83-181; s. 18, ch. 90-347; ss. 9, 29, 30, ch. 93-177; s. 49, ch. 93-217; s. 225, ch. 96-406; s. 3, ch. 2000-163; s. 129, ch. 2000-349; s. 49, ch. 2000-367; s. 18, ch. 2004-344; s. 23, ch. 2006-197; s. 33, ch. 2009-223.
Note.—Former s. 400.321.
400.0078 Citizen access to State Long-Term Care Ombudsman Program services.—
(1) The office shall establish a statewide toll-free telephone number for receiving complaints concerning matters adversely affecting the health, safety, welfare, or rights of residents.
(2) Every resident or representative of a resident shall receive, upon admission to a long-term care facility, information regarding the purpose of the State Long-Term Care Ombudsman Program, the statewide toll-free telephone number for receiving complaints, and other relevant information regarding how to contact the program. Residents or their representatives must be furnished additional copies of this information upon request.
History.—s. 4, ch. 99-394; s. 13, ch. 2006-121.
400.0079 Immunity.—
(1) Any person making a complaint pursuant to this part who does so in good faith shall be immune from any liability, civil or criminal, that otherwise might be incurred or imposed as a direct or indirect result of making the complaint.
(2) The ombudsman or any person authorized by the ombudsman to act on behalf of the office, as well as all members of the state and local councils, shall be immune from any liability, civil or criminal, that otherwise might be incurred or imposed during the good faith performance of official duties.
History.—s. 33, ch. 75-233; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 2, 3, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 10, 29, 30, ch. 93-177; s. 49, ch. 93-217; s. 130, ch. 2000-349; s. 50, ch. 2000-367; s. 14, ch. 2006-121.
Note.—Former s. 400.324.
400.0081 Access to facilities, residents, and records.—
(1) A long-term care facility shall provide the office, the state council and its members, and the local councils and their members access to:
(a) Any portion of the long-term care facility and any resident as necessary to investigate or resolve a complaint.
(b) Medical and social records of a resident for review as necessary to investigate or resolve a complaint, if:
1. The office has the permission of the resident or the legal representative of the resident; or
2. The resident is unable to consent to the review and has no legal representative.
(c) Medical and social records of the resident as necessary to investigate or resolve a complaint, if:
1. A legal representative or guardian of the resident refuses to give permission;
2. The office has reasonable cause to believe that the representative or guardian is not acting in the best interests of the resident; and
3. The state or local council member obtains the approval of the ombudsman.
(d) The administrative records, policies, and documents to which residents or the general public have access.
(e) Upon request, copies of all licensing and certification records maintained by the state with respect to a long-term care facility.
(2) The department, in consultation with the ombudsman and the state council, may adopt rules to establish procedures to ensure access to facilities, residents, and records as described in this section.
History.—ss. 11, 30, ch. 93-177; s. 131, ch. 2000-349; s. 51, ch. 2000-367; s. 15, ch. 2006-121.
400.0083 Interference; retaliation; penalties.—
(1) It shall be unlawful for any person, long-term care facility, or other entity to willfully interfere with a representative of the office, the state council, or a local council in the performance of official duties.
(2) It shall be unlawful for any person, long-term care facility, or other entity to knowingly or willfully take action or retaliate against any resident, employee, or other person for filing a complaint with, providing information to, or otherwise cooperating with any representative of the office, the state council, or a local council.
(3) Any person, long-term care facility, or other entity that violates this section:
(a) Shall be liable for damages and equitable relief as determined by law.
(b) Commits a misdemeanor of the second degree, punishable as provided in s. 775.083.
History.—ss. 12, 30, ch. 93-177; s. 132, ch. 2000-349; s. 52, ch. 2000-367; s. 16, ch. 2006-121.
400.0087 Department oversight; funding.—
(1) The department shall meet the costs associated with the State Long-Term Care Ombudsman Program from funds appropriated to it.
(a) The department shall include the costs associated with support of the State Long-Term Care Ombudsman Program when developing its budget requests for consideration by the Governor and submittal to the Legislature.
(b) The department may divert from the federal ombudsman appropriation an amount equal to the department’s administrative cost ratio to cover the costs associated with administering the program. The remaining allotment from the Older Americans Act program shall be expended on direct ombudsman activities.
(2) The department shall monitor the office, the state council, and the local councils to ensure that each is carrying out the duties delegated to it by state and federal law.
(3) The department is responsible for ensuring that the office:
(a) Has the objectivity and independence required to qualify it for funding under the federal Older Americans Act.
(b) Provides information to public and private agencies, legislators, and others.
(c) Provides appropriate training to representatives of the office or of the state or local councils.
(d) Coordinates ombudsman services with the Advocacy Center for Persons with Disabilities and with providers of legal services to residents of long-term care facilities in compliance with state and federal laws.
(4) The department shall also:
(a) Receive and disburse state and federal funds for purposes that the ombudsman has formulated in accordance with the Older Americans Act.
(b) Whenever necessary, act as liaison between agencies and branches of the federal and state governments and the State Long-Term Care Ombudsman Program.
History.—ss. 13, 30, ch. 93-177; s. 43, ch. 95-196; s. 133, ch. 2000-349; s. 53, ch. 2000-367; s. 25, ch. 2002-223; s. 18, ch. 2006-121.
400.0089 Complaint data reports.—The office shall maintain a statewide uniform reporting system to collect and analyze data relating to complaints and conditions in long-term care facilities and to residents for the purpose of identifying and resolving significant problems. The office shall publish quarterly and make readily available information pertaining to the number and types of complaints received by the State Long-Term Care Ombudsman Program and shall include such information in the annual report required under s. 400.0065.
History.—ss. 14, 30, ch. 93-177; s. 44, ch. 95-196; s. 116, ch. 99-8; s. 16, ch. 2000-263; s. 134, ch. 2000-349; s. 54, ch. 2000-367; s. 26, ch. 2002-223; s. 37, ch. 2003-1; s. 19, ch. 2006-121.
400.0091 Training.—The ombudsman shall ensure that appropriate training is provided to all employees of the office and to the members of the state and local councils.
(1) All state and local council members and employees of the office shall be given a minimum of 20 hours of training upon employment with the office or approval as a state or local council member and 10 hours of continuing education annually thereafter.
(2) The ombudsman shall approve the curriculum for the initial and continuing education training, which must, at a minimum, address:
(a) Resident confidentiality.
(b) Guardianships and powers of attorney.
(c) Medication administration.
(d) Care and medication of residents with dementia and Alzheimer’s disease.
(e) Accounting for residents’ funds.
(f) Discharge rights and responsibilities.
(g) Cultural sensitivity.
(h) Any other topic recommended by the secretary.
(3) No employee, officer, or representative of the office or of the state or local councils, other than the ombudsman, may hold himself or herself out as a representative of the State Long-Term Care Ombudsman Program or conduct any authorized program duty described in this part unless the person has received the training required by this section and has been certified by the ombudsman as qualified to carry out ombudsman activities on behalf of the office or the state or local councils.
History.—ss. 15, 30, ch. 93-177; s. 135, ch. 2000-349; s. 55, ch. 2000-367; s. 32, ch. 2001-62; s. 27, ch. 2002-223; s. 20, ch. 2006-121.
PART II
NURSING HOMES400.011 Purpose.
400.021 Definitions.
400.022 Residents’ rights.
400.023 Civil enforcement.
400.0233 Presuit notice; investigation; notification of violation of resident’s rights or alleged negligence; claims evaluation procedure; informal discovery; review; settlement offer; mediation.
400.0234 Availability of facility records for investigation of resident’s rights violations and defenses; penalty.
400.0235 Certain provisions not applicable to actions under this part.
400.0236 Statute of limitations.
400.0237 Punitive damages; pleading; burden of proof.
400.0238 Punitive damages; limitation.
400.0239 Quality of Long-Term Care Facility Improvement Trust Fund.
400.0255 Resident transfer or discharge; requirements and procedures; hearings.
400.051 Homes or institutions exempt from the provisions of this part.
400.062 License required; fee; disposition.
400.0625 Minimum standards for clinical laboratory test results and diagnostic X-ray results.
400.063 Resident protection.
400.071 Application for license.
400.0712 Application for inactive license.
400.102 Action by agency against licensee; grounds.
400.111 Disclosure of controlling interest.
400.118 Quality assurance; early warning system; monitoring; rapid response teams.
400.1183 Resident grievance procedures.
400.119 Confidentiality of records and meetings of risk management and quality assurance committees.
400.121 Denial, suspension, revocation of license; administrative fines; procedure; order to increase staffing.
400.126 Receivership proceedings.
400.141 Administration and management of nursing home facilities.
400.1413 Volunteers in nursing homes.
400.1415 Patient records; penalties for alteration.
400.142 Emergency medication kits; orders not to resuscitate.
400.145 Records of care and treatment of resident; copies to be furnished.
400.147 Internal risk management and quality assurance program.
400.148 Medicaid “Up-or-Out” Quality of Care Contract Management Program.
400.151 Contracts.
400.162 Property and personal affairs of residents.
400.165 Itemized resident billing, form and content prescribed by the agency.
400.17 Bribes, kickbacks, certain solicitations prohibited.
400.172 Respite care provided in nursing home facilities.
400.175 Patients with Alzheimer’s disease or other related disorders; certain disclosures.
400.1755 Care for persons with Alzheimer’s disease or related disorders.
400.176 Rebates prohibited; penalties.
400.179 Liability for Medicaid underpayments and overpayments.
400.18 Closing of nursing facility.
400.19 Right of entry and inspection.
400.191 Availability, distribution, and posting of reports and records.
400.20 Licensed nursing home administrator required.
400.211 Persons employed as nursing assistants; certification requirement.
400.215 Personnel screening requirement.
400.23 Rules; evaluation and deficiencies; licensure status.
400.232 Review and approval of plans; fees and costs.
400.235 Nursing home quality and licensure status; Gold Seal Program.
400.241 Prohibited acts; penalties for violations.
400.25 Educational program authorized.
400.275 Agency duties.
400.33 Legislative intent; community-based care for the elderly.
400.332 Funds received not revenues for purpose of Medicaid program.
400.334 Activity relating to unions by nursing home employees.
400.011 Purpose.—The purpose of this part is to provide for the development, establishment, and enforcement of basic standards for:
(1) The health, care, and treatment of persons in nursing homes and related health care facilities; and
(2) The maintenance and operation of such institutions that will ensure safe, adequate, and appropriate care, treatment, and health of persons in such facilities.
History.—s. 1, ch. 69-309; s. 1, ch. 70-361; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 2, 3, ch. 81-318; ss. 3, 79, 83, ch. 83-181; s. 30, ch. 93-177; ss. 1, 49, ch. 93-217; s. 28, ch. 2000-141; s. 34, ch. 2001-186; s. 3, ch. 2001-372.
400.021 Definitions.—When used in this part, unless the context otherwise requires, the term:
(1) “Administrator” means the licensed individual who has the general administrative charge of a facility.
(2) “Agency” means the Agency for Health Care Administration, which is the licensing agency under this part.
(3) “Bed reservation policy” means the number of consecutive days and the number of days per year that a resident may leave the nursing home facility for overnight therapeutic visits with family or friends or for hospitalization for an acute condition before the licensee may discharge the resident due to his or her absence from the facility.
(4) “Board” means the Board of Nursing Home Administrators.
(5) “Custodial service” means care for a person which entails observation of diet and sleeping habits and maintenance of a watchfulness over the general health, safety, and well-being of the aged or infirm.
(6) “Department” means the Department of Children and Family Services.
(7) “Facility” means any institution, building, residence, private home, or other place, whether operated for profit or not, including a place operated by a county or municipality, which undertakes through its ownership or management to provide for a period exceeding 24-hour nursing care, personal care, or custodial care for three or more persons not related to the owner or manager by blood or marriage, who by reason of illness, physical infirmity, or advanced age require such services, but does not include any place providing care and treatment primarily for the acutely ill. A facility offering services for fewer than three persons is within the meaning of this definition if it holds itself out to the public to be an establishment which regularly provides such services.
(8) “Geriatric outpatient clinic” means a site for providing outpatient health care to persons 60 years of age or older, which is staffed by a registered nurse, a physician assistant, or a licensed practical nurse under the direct supervision of a registered nurse, advanced registered nurse practitioner, physician assistant, or physician.
(9) “Geriatric patient” means any patient who is 60 years of age or older.
(10) “Local ombudsman council” means a local long-term care ombudsman council established pursuant to s. 400.0069, located within the Older Americans Act planning and service areas.
(11) “Nursing home bed” means an accommodation which is ready for immediate occupancy, or is capable of being made ready for occupancy within 48 hours, excluding provision of staffing; and which conforms to minimum space requirements, including the availability of appropriate equipment and furnishings within the 48 hours, as specified by rule of the agency, for the provision of services specified in this part to a single resident.
(12) “Nursing home facility” means any facility which provides nursing services as defined in part I of chapter 464 and which is licensed according to this part.
(13) “Nursing service” means such services or acts as may be rendered, directly or indirectly, to and in behalf of a person by individuals as defined in s. 464.003.
(14) “Planning and service area” means the geographic area in which the Older Americans Act programs are administered and services are delivered by the Department of Elderly Affairs.
(15) “Respite care” means admission to a nursing home for the purpose of providing a short period of rest or relief or emergency alternative care for the primary caregiver of an individual receiving care at home who, without home-based care, would otherwise require institutional care.
(16) “Resident care plan” means a written plan developed, maintained, and reviewed not less than quarterly by a registered nurse, with participation from other facility staff and the resident or his or her designee or legal representative, which includes a comprehensive assessment of the needs of an individual resident; the type and frequency of services required to provide the necessary care for the resident to attain or maintain the highest practicable physical, mental, and psychosocial well-being; a listing of services provided within or outside the facility to meet those needs; and an explanation of service goals.
(17) “Resident designee” means a person, other than the owner, administrator, or employee of the facility, designated in writing by a resident or a resident’s guardian, if the resident is adjudicated incompetent, to be the resident’s representative for a specific, limited purpose.
(18) “State ombudsman council” means the State Long-Term Care Ombudsman Council established pursuant to s. 400.0067.
(19) “Therapeutic spa services” means bathing, nail, and hair care services and other similar services related to personal hygiene.
History.—s. 2, ch. 69-309; ss. 19, 35, ch. 69-106; s. 2, ch. 70-361; s. 1, ch. 70-439; ss. 21, 25, ch. 75-233; s. 3, ch. 76-168; s. 234, ch. 77-147; s. 1, ch. 77-457; ss. 1, 18, ch. 80-186; ss. 1, 12, ch. 80-198; s. 249, ch. 81-259; ss. 2, 3, ch. 81-318; ss. 4, 79, 83, ch. 83-181; s. 1, ch. 90-330; ss. 20, 30, ch. 93-177; ss. 2, 49, ch. 93-217; s. 763, ch. 95-148; s. 117, ch. 99-8; s. 94, ch. 2000-318; s. 136, ch. 2000-349; s. 1, ch. 2000-350; s. 56, ch. 2000-367; s. 2, ch. 2001-45; s. 3, ch. 2004-298; s. 55, ch. 2007-230; s. 4, ch. 2012-160.
400.022 Residents’ rights.—
(1) All licensees of nursing home facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the following:
(a) The right to civil and religious liberties, including knowledge of available choices and the right to independent personal decision, which will not be infringed upon, and the right to encouragement and assistance from the staff of the facility in the fullest possible exercise of these rights.
(b) The right to private and uncensored communication, including, but not limited to, receiving and sending unopened correspondence, access to a telephone, visiting with any person of the resident’s choice during visiting hours, and overnight visitation outside the facility with family and friends in accordance with facility policies, physician orders, and Title XVIII (Medicare) and Title XIX (Medicaid) of the Social Security Act regulations, without the resident’s losing his or her bed. Facility visiting hours shall be flexible, taking into consideration special circumstances such as, but not limited to, out-of-town visitors and working relatives or friends. Unless otherwise indicated in the resident care plan, the licensee shall, with the consent of the resident and in accordance with policies approved by the agency, permit recognized volunteer groups, representatives of community-based legal, social, mental health, and leisure programs, and members of the clergy access to the facility during visiting hours for the purpose of visiting with and providing services to any resident.
(c) Any entity or individual that provides health, social, legal, or other services to a resident has the right to have reasonable access to the resident. The resident has the right to deny or withdraw consent to access at any time by any entity or individual. Notwithstanding the visiting policy of the facility, the following individuals must be permitted immediate access to the resident:
1. Any representative of the federal or state government, including, but not limited to, representatives of the Department of Children and Family Services, the Department of Health, the Agency for Health Care Administration, the Office of the Attorney General, and the Department of Elderly Affairs; any law enforcement officer; members of the state or local ombudsman council; and the resident’s individual physician.
2. Subject to the resident’s right to deny or withdraw consent, immediate family or other relatives of the resident.
The facility must allow representatives of the State Long-Term Care Ombudsman Council to examine a resident’s clinical records with the permission of the resident or the resident’s legal representative and consistent with state law.
(d) The right to present grievances on behalf of himself or herself or others to the staff or administrator of the facility, to governmental officials, or to any other person; to recommend changes in policies and services to facility personnel; and to join with other residents or individuals within or outside the facility to work for improvements in resident care, free from restraint, interference, coercion, discrimination, or reprisal. This right includes access to ombudsmen and advocates and the right to be a member of, to be active in, and to associate with advocacy or special interest groups. The right also includes the right to prompt efforts by the facility to resolve resident grievances, including grievances with respect to the behavior of other residents.
(e) The right to organize and participate in resident groups in the facility and the right to have the resident’s family meet in the facility with the families of other residents.
(f) The right to participate in social, religious, and community activities that do not interfere with the rights of other residents.
(g) The right to examine, upon reasonable request, the results of the most recent inspection of the facility conducted by a federal or state agency and any plan of correction in effect with respect to the facility.
(h) The right to manage his or her own financial affairs or to delegate such responsibility to the licensee, but only to the extent of the funds held in trust by the licensee for the resident. A quarterly accounting of any transactions made on behalf of the resident shall be furnished to the resident or the person responsible for the resident. The facility may not require a resident to deposit personal funds with the facility. However, upon written authorization of a resident, the facility must hold, safeguard, manage, and account for the personal funds of the resident deposited with the facility as follows:
1. The facility must establish and maintain a system that ensures a full, complete, and separate accounting, according to generally accepted accounting principles, of each resident’s personal funds entrusted to the facility on the resident’s behalf.
2. The accounting system established and maintained by the facility must preclude any commingling of resident funds with facility funds or with the funds of any person other than another resident.
3. A quarterly accounting of any transaction made on behalf of the resident shall be furnished to the resident or the person responsible for the resident.
4. Upon the death of a resident with personal funds deposited with the facility, the facility must convey within 30 days the resident’s funds, including interest, and a final accounting of those funds, to the individual or probate jurisdiction administering the resident’s estate, or, if a personal representative has not been appointed within 30 days, to the resident’s spouse or adult next of kin named in the beneficiary designation form provided for in s. 400.162(6).
5. The facility may not impose a charge against the personal funds of a resident for any item or service for which payment is made under Title XVIII or Title XIX of the Social Security Act.
(i) The right to be fully informed, in writing and orally, prior to or at the time of admission and during his or her stay, of services available in the facility and of related charges for such services, including any charges for services not covered under Title XVIII or Title XIX of the Social Security Act or not covered by the basic per diem rates and of bed reservation and refund policies of the facility.
(j) The right to be adequately informed of his or her medical condition and proposed treatment, unless the resident is determined to be unable to provide informed consent under Florida law, or the right to be fully informed in advance of any nonemergency changes in care or treatment that may affect the resident’s well-being; and, except with respect to a resident adjudged incompetent, the right to participate in the planning of all medical treatment, including the right to refuse medication and treatment, unless otherwise indicated by the resident’s physician; and to know the consequences of such actions.
(k) The right to refuse medication or treatment and to be informed of the consequences of such decisions, unless determined unable to provide informed consent under state law. When the resident refuses medication or treatment, the nursing home facility must notify the resident or the resident’s legal representative of the consequences of such decision and must document the resident’s decision in his or her medical record. The nursing home facility must continue to provide other services the resident agrees to in accordance with the resident’s care plan.
(l) The right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency.
(m) The right to have privacy in treatment and in caring for personal needs; to close room doors and to have facility personnel knock before entering the room, except in the case of an emergency or unless medically contraindicated; and to security in storing and using personal possessions. Privacy of the resident’s body shall be maintained during, but not limited to, toileting, bathing, and other activities of personal hygiene, except as needed for resident safety or assistance. Residents’ personal and medical records shall be confidential and exempt from the provisions of s. 119.07(1).
(n) The right to be treated courteously, fairly, and with the fullest measure of dignity and to receive a written statement and an oral explanation of the services provided by the licensee, including those required to be offered on an as-needed basis.
(o) The right to be free from mental and physical abuse, corporal punishment, extended involuntary seclusion, and from physical and chemical restraints, except those restraints authorized in writing by a physician for a specified and limited period of time or as are necessitated by an emergency. In case of an emergency, restraint may be applied only by a qualified licensed nurse who shall set forth in writing the circumstances requiring the use of restraint, and, in the case of use of a chemical restraint, a physician shall be consulted immediately thereafter. Restraints may not be used in lieu of staff supervision or merely for staff convenience, for punishment, or for reasons other than resident protection or safety.
(p) The right to be transferred or discharged only for medical reasons or for the welfare of other residents, and the right to be given reasonable advance notice of no less than 30 days of any involuntary transfer or discharge, except in the case of an emergency as determined by a licensed professional on the staff of the nursing home, or in the case of conflicting rules and regulations which govern Title XVIII or Title XIX of the Social Security Act. For nonpayment of a bill for care received, the resident shall be given 30 days’ advance notice. A licensee certified to provide services under Title XIX of the Social Security Act may not transfer or discharge a resident solely because the source of payment for care changes. Admission to a nursing home facility operated by a licensee certified to provide services under Title XIX of the Social Security Act may not be conditioned upon a waiver of such right, and any document or provision in a document which purports to waive or preclude such right is void and unenforceable. Any licensee certified to provide services under Title XIX of the Social Security Act that obtains or attempts to obtain such a waiver from a resident or potential resident shall be construed to have violated the resident’s rights as established herein and is subject to disciplinary action as provided in subsection (3). The resident and the family or representative of the resident shall be consulted in choosing another facility.
(q) The right to freedom of choice in selecting a personal physician; to obtain pharmaceutical supplies and services from a pharmacy of the resident’s choice, at the resident’s own expense or through Title XIX of the Social Security Act; and to obtain information about, and to participate in, community-based activities programs, unless medically contraindicated as documented by a physician in the resident’s medical record. If a resident chooses to use a community pharmacy and the facility in which the resident resides uses a unit-dose system, the pharmacy selected by the resident shall be one that provides a compatible unit-dose system, provides service delivery, and stocks the drugs normally used by long-term care residents. If a resident chooses to use a community pharmacy and the facility in which the resident resides does not use a unit-dose system, the pharmacy selected by the resident shall be one that provides service delivery and stocks the drugs normally used by long-term care residents.
(r) The right to retain and use personal clothing and possessions as space permits, unless to do so would infringe upon the rights of other residents or unless medically contraindicated as documented in the resident’s medical record by a physician. If clothing is provided to the resident by the licensee, it shall be of reasonable fit.
(s) The right to have copies of the rules and regulations of the facility and an explanation of the responsibility of the resident to obey all reasonable rules and regulations of the facility and to respect the personal rights and private property of the other residents.
(t) The right to receive notice before the room of the resident in the facility is changed.
(u) The right to be informed of the bed reservation policy for a hospitalization. The nursing home shall inform a private-pay resident and his or her responsible party that his or her bed will be reserved for any single hospitalization for a period up to 30 days provided the nursing home receives reimbursement. Any resident who is a recipient of assistance under Title XIX of the Social Security Act, or the resident’s designee or legal representative, shall be informed by the licensee that his or her bed will be reserved for any single hospitalization for the length of time for which Title XIX reimbursement is available, up to 15 days; but that the bed will not be reserved if it is medically determined by the agency that the resident will not need it or will not be able to return to the nursing home, or if the agency determines that the nursing home’s occupancy rate ensures the availability of a bed for the resident. Notice shall be provided within 24 hours of the hospitalization.
(v) For residents of Medicaid or Medicare certified facilities, the right to challenge a decision by the facility to discharge or transfer the resident, as required under Title 42 C.F.R. part 483.13.
(2) The licensee for each nursing home shall orally inform the resident of the resident’s rights and provide a copy of the statement required by subsection (1) to each resident or the resident’s legal representative at or before the resident’s admission to a facility. The licensee shall provide a copy of the resident’s rights to each staff member of the facility. Each such licensee shall prepare a written plan and provide appropriate staff training to implement the provisions of this section. The written statement of rights must include a statement that a resident may file a complaint with the agency or local ombudsman council. The statement must be in boldfaced type and shall include the name, address, and telephone numbers of the local ombudsman council and central abuse hotline where complaints may be lodged.
(3) Any violation of the resident’s rights set forth in this section shall constitute grounds for action by the agency under the provisions of s. 400.102, s. 400.121, or part II of chapter 408. In order to determine whether the licensee is adequately protecting residents’ rights, the licensure inspection of the facility shall include private informal conversations with a sample of residents to discuss residents’ experiences within the facility with respect to rights specified in this section and general compliance with standards, and consultation with the ombudsman council in the local planning and service area of the Department of Elderly Affairs in which the nursing home is located.
(4) Any person who submits or reports a complaint concerning a suspected violation of the resident’s rights or concerning services or conditions in a facility or who testifies in any administrative or judicial proceeding arising from such complaint shall have immunity from any criminal or civil liability therefor, unless that person has acted in bad faith, with malicious purpose, or if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.
History.—s. 8, ch. 76-201; s. 1, ch. 77-174; ss. 1, 9, ch. 79-268; ss. 2, 18, ch. 80-186; s. 2, ch. 81-318; ss. 11, 19, ch. 82-148; ss. 5, 79, 83, ch. 83-181; s. 1, ch. 84-144; s. 15, ch. 90-347; s. 30, ch. 93-177; ss. 3, 49, ch. 93-217; s. 764, ch. 95-148; s. 226, ch. 96-406; s. 118, ch. 99-8; s. 5, ch. 99-394; ss. 70, 137, ch. 2000-349; s. 57, ch. 2000-367; s. 33, ch. 2001-62; s. 56, ch. 2007-230.
400.023 Civil enforcement.—
(1) Any resident whose rights as specified in this part are violated shall have a cause of action. The action may be brought by the resident or his or her guardian, by a person or organization acting on behalf of a resident with the consent of the resident or his or her guardian, or by the personal representative of the estate of a deceased resident regardless of the cause of death. If the action alleges a claim for the resident’s rights or for negligence that caused the death of the resident, the claimant shall be required to elect either survival damages pursuant to s. 46.021 or wrongful death damages pursuant to s. 768.21. If the action alleges a claim for the resident’s rights or for negligence that did not cause the death of the resident, the personal representative of the estate may recover damages for the negligence that caused injury to the resident. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for any violation of the rights of a resident or for negligence. Any resident who prevails in seeking injunctive relief or a claim for an administrative remedy is entitled to recover the costs of the action, and a reasonable attorney’s fee assessed against the defendant not to exceed $25,000. Fees shall be awarded solely for the injunctive or administrative relief and not for any claim or action for damages whether such claim or action is brought together with a request for an injunction or administrative relief or as a separate action, except as provided under s. 768.79 or the Florida Rules of Civil Procedure. Sections 400.023-400.0238 provide the exclusive remedy for a cause of action for recovery of damages for the personal injury or death of a nursing home resident arising out of negligence or a violation of rights specified in s. 400.022. This section does not preclude theories of recovery not arising out of negligence or s. 400.022 which are available to a resident or to the agency. The provisions of chapter 766 do not apply to any cause of action brought under ss. 400.023-400.0238.
(2) In any claim brought pursuant to this part alleging a violation of resident’s rights or negligence causing injury to or the death of a resident, the claimant shall have the burden of proving, by a preponderance of the evidence, that:
(a) The defendant owed a duty to the resident;
(b) The defendant breached the duty to the resident;
(c) The breach of the duty is a legal cause of loss, injury, death, or damage to the resident; and
(d) The resident sustained loss, injury, death, or damage as a result of the breach.
Nothing in this part shall be interpreted to create strict liability. A violation of the rights set forth in s. 400.022 or in any other standard or guidelines specified in this part or in any applicable administrative standard or guidelines of this state or a federal regulatory agency shall be evidence of negligence but shall not be considered negligence per se.
(3) In any claim brought pursuant to this section, a licensee, person, or entity shall have a duty to exercise reasonable care. Reasonable care is that degree of care which a reasonably careful licensee, person, or entity would use under like circumstances.
(4) In any claim for resident’s rights violation or negligence by a nurse licensed under part I of chapter 464, such nurse shall have the duty to exercise care consistent with the prevailing professional standard of care for a nurse. The prevailing professional standard of care for a nurse shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar nurses.
(5) A licensee shall not be liable for the medical negligence of any physician rendering care or treatment to the resident except for the administrative services of a medical director as required in this part. Nothing in this subsection shall be construed to protect a licensee, person, or entity from liability for failure to provide a resident with appropriate observation, assessment, nursing diagnosis, planning, intervention, and evaluation of care by nursing staff.
(6) The resident or the resident’s legal representative shall serve a copy of any complaint alleging in whole or in part a violation of any rights specified in this part to the Agency for Health Care Administration at the time of filing the initial complaint with the clerk of the court for the county in which the action is pursued. The requirement of providing a copy of the complaint to the agency does not impair the resident’s legal rights or ability to seek relief for his or her claim.
(7) An action under this part for a violation of rights or negligence recognized herein is not a claim for medical malpractice, and the provisions of s. 768.21(8) do not apply to a claim alleging death of the resident.
History.—ss. 3, 18, ch. 80-186; s. 2, ch. 81-318; ss. 6, 79, 83, ch. 83-181; s. 51, ch. 83-218; s. 1, ch. 86-79; s. 30, ch. 93-177; ss. 4, 49, ch. 93-217; s. 765, ch. 95-148; s. 30, ch. 99-225; s. 4, ch. 2001-45; s. 34, ch. 2001-62.
400.0233 Presuit notice; investigation; notification of violation of resident’s rights or alleged negligence; claims evaluation procedure; informal discovery; review; settlement offer; mediation.—
(1) As used in this section, the term:
(a) “Claim for resident’s rights violation or negligence” means a negligence claim alleging injury to or the death of a resident arising out of an asserted violation of the rights of a resident under s. 400.022 or an asserted deviation from the applicable standard of care.
(b) “Insurer” means any self-insurer authorized under s. 627.357, liability insurance carrier, joint underwriting association, or uninsured prospective defendant.
(2) Prior to filing a claim for a violation of a resident’s rights or a claim for negligence, a claimant alleging injury to or the death of a resident shall notify each prospective defendant by certified mail, return receipt requested, of an asserted violation of a resident’s rights provided in s. 400.022 or deviation from the standard of care. Such notification shall include an identification of the rights the prospective defendant has violated and the negligence alleged to have caused the incident or incidents and a brief description of the injuries sustained by the resident which are reasonably identifiable at the time of notice. The notice shall contain a certificate of counsel that counsel’s reasonable investigation gave rise to a good faith belief that grounds exist for an action against each prospective defendant.
(3)(a) No suit may be filed for a period of 75 days after notice is mailed to any prospective defendant. During the 75-day period, the prospective defendants or their insurers shall conduct an evaluation of the claim to determine the liability of each defendant and to evaluate the damages of the claimants. Each defendant or insurer of the defendant shall have a procedure for the prompt evaluation of claims during the 75-day period. The procedure shall include one or more of the following:
1. Internal review by a duly qualified facility risk manager or claims adjuster;
2. Internal review by counsel for each prospective defendant;
3. A quality assurance committee authorized under any applicable state or federal statutes or regulations; or
4. Any other similar procedure that fairly and promptly evaluates the claims.
Each defendant or insurer of the defendant shall evaluate the claim in good faith.
(b) At or before the end of the 75 days, the defendant or insurer of the defendant shall provide the claimant with a written response:
1. Rejecting the claim; or
2. Making a settlement offer.
(c) The response shall be delivered to the claimant if not represented by counsel or to the claimant’s attorney, by certified mail, return receipt requested. Failure of the prospective defendant or insurer of the defendant to reply to the notice within 75 days after receipt shall be deemed a rejection of the claim for purposes of this section.
(4) The notification of a violation of a resident’s rights or alleged negligence shall be served within the applicable statute of limitations period; however, during the 75-day period, the statute of limitations is tolled as to all prospective defendants. Upon stipulation by the parties, the 75-day period may be extended and the statute of limitations is tolled during any such extension. Upon receiving written notice by certified mail, return receipt requested, of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.
(5) No statement, discussion, written document, report, or other work product generated by presuit claims evaluation procedures under this section is discoverable or admissible in any civil action for any purpose by the opposing party. All participants, including, but not limited to, physicians, investigators, witnesses, and employees or associates of the defendant, are immune from civil liability arising from participation in the presuit claims evaluation procedure. Any licensed physician or registered nurse may be retained by either party to provide an opinion regarding the reasonable basis of the claim. The presuit opinions of the expert are not discoverable or admissible in any civil action for any purpose by the opposing party.
(6) Upon receipt by a prospective defendant of a notice of claim, the parties shall make discoverable information available without formal discovery as provided in subsection (7).
(7) Informal discovery may be used by a party to obtain unsworn statements and the production of documents or things as follows:
(a) Unsworn statements.—Any party may require other parties to appear for the taking of an unsworn statement. Such statements may be used only for the purpose of claims evaluation and are not discoverable or admissible in any civil action for any purpose by any party. A party seeking to take the unsworn statement of any party must give reasonable notice in writing to all parties. The notice must state the time and place for taking the statement and the name and address of the party to be examined. Unless otherwise impractical, the examination of any party must be done at the same time by all other parties. Any party may be represented by counsel at the taking of an unsworn statement. An unsworn statement may be recorded electronically, stenographically, or on videotape. The taking of unsworn statements is subject to the provisions of the Florida Rules of Civil Procedure and may be terminated for abuses.
(b) Documents or things.—Any party may request discovery of relevant documents or things. The documents or things must be produced, at the expense of the requesting party, within 20 days after the date of receipt of the request. A party is required to produce relevant and discoverable documents or things within that party’s possession or control, if in good faith it can reasonably be done within the timeframe of the claims evaluation process.
(8) Each request for and notice concerning informal discovery pursuant to this section must be in writing, and a copy thereof must be sent to all parties. Such a request or notice must bear a certificate of service identifying the name and address of the person to whom the request or notice is served, the date of the request or notice, and the manner of service thereof.
(9) If a prospective defendant makes a written settlement offer, the claimant shall have 15 days from the date of receipt to accept the offer. An offer shall be deemed rejected unless accepted by delivery of a written notice of acceptance.
(10) To the extent not inconsistent with this part, the provisions of the Florida Mediation Code, Florida Rules of Civil Procedure, shall be applicable to such proceedings.
(11) Within 30 days after the claimant’s receipt of the defendant’s response to the claim, the parties or their designated representatives shall meet in mediation to discuss the issues of liability and damages in accordance with the mediation rules of practice and procedures adopted by the Supreme Court. Upon stipulation of the parties, this 30-day period may be extended and the statute of limitations is tolled during the mediation and any such extension. At the conclusion of mediation, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.
History.—s. 5, ch. 2001-45.
400.0234 Availability of facility records for investigation of resident’s rights violations and defenses; penalty.—
(1) Failure to provide complete copies of a resident’s records, including, but not limited to, all medical records and the resident’s chart, within the control or possession of the facility in accordance with s. 400.145 shall constitute evidence of failure of that party to comply with good faith discovery requirements and shall waive the good faith certificate and presuit notice requirements under this part by the requesting party.
(2) No facility shall be held liable for any civil damages as a result of complying with this section.
History.—s. 6, ch. 2001-45.
400.0235 Certain provisions not applicable to actions under this part.—An action under this part for a violation of rights or negligence recognized under this part is not a claim for medical malpractice, and the provisions of s. 768.21(8) do not apply to a claim alleging death of the resident.
History.—s. 7, ch. 2001-45.
400.0236 Statute of limitations.—
(1) Any action for damages brought under this part shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.
(2) In those actions covered by this subsection in which it can be shown that fraudulent concealment or intentional misrepresentation of fact prevented the discovery of the injury, the period of limitations is extended forward 2 years from the time that the injury is discovered with the exercise of due diligence, but in no event for more than 6 years from the date the incident giving rise to the injury occurred.
(3) This section shall apply to causes of action that have accrued prior to the effective date of this section; however, any such cause of action that would not have been barred under prior law may be brought within the time allowed by prior law or within 2 years after the effective date of this section, whichever is earlier, and will be barred thereafter. In actions where it can be shown that fraudulent concealment or intentional misrepresentation of fact prevented the discovery of the injury, the period of limitations is extended forward 2 years from the time that the injury is discovered with the exercise of due diligence, but in no event more than 4 years from the effective date of this section.
History.—s. 8, ch. 2001-45.
400.0237 Punitive damages; pleading; burden of proof.—
(1) In any action for damages brought under this part, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted.
(2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:
(a) “Intentional misconduct” means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.
(b) “Gross negligence” means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.
(3) In the case of an employer, principal, corporation, or other legal entity, punitive damages may be imposed for the conduct of an employee or agent only if the conduct of the employee or agent meets the criteria specified in subsection (2) and:
(a) The employer, principal, corporation, or other legal entity actively and knowingly participated in such conduct;
(b) The officers, directors, or managers of the employer, principal, corporation, or other legal entity condoned, ratified, or consented to such conduct; or
(c) The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant.
(4) The plaintiff must establish at trial, by clear and convincing evidence, its entitlement to an award of punitive damages. The “greater weight of the evidence” burden of proof applies to a determination of the amount of damages.
(5) This section is remedial in nature and shall take effect upon becoming a law.
History.—s. 9, ch. 2001-45.
400.0238 Punitive damages; limitation.—
(1)(a) Except as provided in paragraphs (b) and (c), an award of punitive damages may not exceed the greater of:
1. Three times the amount of compensatory damages awarded to each claimant entitled thereto, consistent with the remaining provisions of this section; or
2. The sum of $1 million.
(b) Where the fact finder determines that the wrongful conduct proven under this section was motivated primarily by unreasonable financial gain and determines that the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was actually known by the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant, it may award an amount of punitive damages not to exceed the greater of:
1. Four times the amount of compensatory damages awarded to each claimant entitled thereto, consistent with the remaining provisions of this section; or
2. The sum of $4 million.
(c) Where the fact finder determines that at the time of injury the defendant had a specific intent to harm the claimant and determines that the defendant’s conduct did in fact harm the claimant, there shall be no cap on punitive damages.
(d) This subsection is not intended to prohibit an appropriate court from exercising its jurisdiction under s. 768.74 in determining the reasonableness of an award of punitive damages that is less than three times the amount of compensatory damages.
(e) In any case in which the findings of fact support an award of punitive damages pursuant to paragraph (b) or paragraph (c), the clerk of the court shall refer the case to the appropriate law enforcement agencies, to the state attorney in the circuit where the long-term care facility that is the subject of the underlying civil cause of action is located, and, for multijurisdictional facility owners, to the Office of the Statewide Prosecutor; and such agencies, state attorney, or Office of the Statewide Prosecutor shall initiate a criminal investigation into the conduct giving rise to the award of punitive damages. All findings by the trier of fact which support an award of punitive damages under this paragraph shall be admissible as evidence in any subsequent civil or criminal proceeding relating to the acts giving rise to the award of punitive damages under this paragraph.
(2) The claimant’s attorney’s fees, if payable from the judgment, are, to the extent that the fees are based on the punitive damages, calculated based on the final judgment for punitive damages. This subsection does not limit the payment of attorney’s fees based upon an award of damages other than punitive damages.
(3) The jury may neither be instructed nor informed as to the provisions of this section.
(4) Notwithstanding any other law to the contrary, the amount of punitive damages awarded pursuant to this section shall be equally divided between the claimant and the Quality of Long-Term Care Facility Improvement Trust Fund, in accordance with the following provisions:
(a) The clerk of the court shall transmit a copy of the jury verdict to the Chief Financial Officer by certified mail. In the final judgment, the court shall order the percentages of the award, payable as provided herein.
(b) A settlement agreement entered into between the original parties to the action after a verdict has been returned must provide a proportionate share payable to the Quality of Long-Term Care Facility Improvement Trust Fund specified herein. For purposes of this paragraph, a proportionate share is a 50-percent share of that percentage of the settlement amount which the punitive damages portion of the verdict bore to the total of the compensatory and punitive damages in the verdict.
(c) The Department of Financial Services shall collect or cause to be collected all payments due the state under this section. Such payments are made to the Chief Financial Officer and deposited in the appropriate fund specified in this subsection.
(d) If the full amount of punitive damages awarded cannot be collected, the claimant and the other recipient designated pursuant to this subsection are each entitled to a proportionate share of the punitive damages collected.
(5) This section is remedial in nature and shall take effect upon becoming a law.
History.—s. 10, ch. 2001-45; s. 415, ch. 2003-261.
400.0239 Quality of Long-Term Care Facility Improvement Trust Fund.—
(1) There is created within the Agency for Health Care Administration a Quality of Long-Term Care Facility Improvement Trust Fund to support activities and programs directly related to improvement of the care of nursing home and assisted living facility residents. The trust fund shall be funded through proceeds generated pursuant to ss. 400.0238 and 429.298, through funds specifically appropriated by the Legislature, through gifts, endowments, and other charitable contributions allowed under federal and state law, and through federal nursing home civil monetary penalties collected by the Centers for Medicare and Medicaid Services and returned to the state. These funds must be utilized in accordance with federal requirements.
(2) Expenditures from the trust fund shall be allowable for direct support of the following:
(a) Development and operation of a mentoring program, in consultation with the Department of Health and the Department of Elderly Affairs, for increasing the competence, professionalism, and career preparation of long-term care facility direct care staff, including nurses, nursing assistants, and social service and dietary personnel.
(b) Development and implementation of specialized training programs for long-term care facility personnel who provide direct care for residents with Alzheimer’s disease and other dementias, residents at risk of developing pressure sores, and residents with special nutrition and hydration needs.
(c) Addressing areas of deficient practice identified through regulation or state monitoring.
(d) Provision of economic and other incentives to enhance the stability and career development of the nursing home direct care workforce, including paid sabbaticals for exemplary direct care career staff to visit facilities throughout the state to train and motivate younger workers to commit to careers in long-term care.
(e) Promotion and support for the formation and active involvement of resident and family councils in the improvement of nursing home care.
(f) Evaluation of special residents’ needs in long-term care facilities, including challenges in meeting special residents’ needs, appropriateness of placement and setting, and cited deficiencies related to caring for special needs.
(g) Other initiatives authorized by the Centers for Medicare and Medicaid Services for the use of federal civil monetary penalties, including projects recommended through the Medicaid “Up-or-Out” Quality of Care Contract Management Program pursuant to s. 400.148.
(3) The agency shall carry out through the trust fund the priorities and directives specified in legislative appropriations.
(4) Notwithstanding the provisions of s. 216.301, and pursuant to s. 216.351, any balance in the trust fund at the end of any fiscal year shall remain in the trust fund at the end of the year and shall be available for carrying out the purposes of the trust fund.
History.—s. 1, ch. 2001-205; s. 22, ch. 2003-57; s. 2, ch. 2004-229; s. 24, ch. 2006-197.
400.0255 Resident transfer or discharge; requirements and procedures; hearings.—
(1) As used in this section, the term:
(a) “Discharge” means to move a resident to a noninstitutional setting when the releasing facility ceases to be responsible for the resident’s care.
(b) “Transfer” means to move a resident from the facility to another legally responsible institutional setting.
(2) Each facility licensed under this part must comply with subsection (9) and s. 400.022(1)(p) when deciding to discharge or transfer a resident.
(3) When a discharge or transfer is initiated by the nursing home, the nursing home administrator employed by the nursing home that is discharging or transferring the resident, or an individual employed by the nursing home who is designated by the nursing home administrator to act on behalf of the administration, must sign the notice of discharge or transfer. Any notice indicating a medical reason for transfer or discharge must either be signed by the resident’s attending physician or the medical director of the facility, or include an attached written order for the discharge or transfer. The notice or the order must be signed by the resident’s physician, medical director, treating physician, nurse practitioner, or physician assistant.
(4)(a) Each facility must notify the agency of any proposed discharge or transfer of a resident when such discharge or transfer is necessitated by changes in the physical plant of the facility that make the facility unsafe for the resident.
(b) Upon receipt of such a notice, the agency shall conduct an onsite inspection of the facility to verify the necessity of the discharge or transfer.
(5) A resident of any Medicaid or Medicare certified facility may challenge a decision by the facility to discharge or transfer the resident.
(6) A facility that has been reimbursed for reserving a bed and, for reasons other than those permitted under this section, refuses to readmit a resident within the prescribed timeframe shall refund the bed reservation payment.
(7) At least 30 days prior to any proposed transfer or discharge, a facility must provide advance notice of the proposed transfer or discharge to the resident and, if known, to a family member or the resident’s legal guardian or representative, except, in the following circumstances, the facility shall give notice as soon as practicable before the transfer or discharge:
(a) The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility, and the circumstances are documented in the resident’s medical records by the resident’s physician; or
(b) The health or safety of other residents or facility employees would be endangered, and the circumstances are documented in the resident’s medical records by the resident’s physician or the medical director if the resident’s physician is not available.
(8) The notice required by subsection (7) must be in writing and must contain all information required by state and federal law, rules, or regulations applicable to Medicaid or Medicare cases. The agency shall develop a standard document to be used by all facilities licensed under this part for purposes of notifying residents of a discharge or transfer. Such document must include a means for a resident to request the local long-term care ombudsman council to review the notice and request information about or assistance with initiating a fair hearing with the department’s Office of Appeals Hearings. In addition to any other pertinent information included, the form shall specify the reason allowed under federal or state law that the resident is being discharged or transferred, with an explanation to support this action. Further, the form shall state the effective date of the discharge or transfer and the location to which the resident is being discharged or transferred. The form shall clearly describe the resident’s appeal rights and the procedures for filing an appeal, including the right to request the local ombudsman council to review the notice of discharge or transfer. A copy of the notice must be placed in the resident’s clinical record, and a copy must be transmitted to the resident’s legal guardian or representative and to the local ombudsman council within 5 business days after signature by the resident or resident designee.
(9) A resident may request that the local ombudsman council review any notice of discharge or transfer given to the resident. When requested by a resident to review a notice of discharge or transfer, the local ombudsman council shall do so within 7 days after receipt of the request. The nursing home administrator, or the administrator’s designee, must forward the request for review contained in the notice to the local ombudsman council within 24 hours after such request is submitted. Failure to forward the request within 24 hours after the request is submitted shall toll the running of the 30-day advance notice period until the request has been forwarded.
(10)(a) A resident is entitled to a fair hearing to challenge a facility’s proposed transfer or discharge. The resident, or the resident’s legal representative or designee, may request a hearing at any time within 90 days after the resident’s receipt of the facility’s notice of the proposed discharge or transfer.
(b) If a resident requests a hearing within 10 days after receiving the notice from the facility, the request shall stay the proposed transfer or discharge pending a hearing decision. The facility may not take action, and the resident may remain in the facility, until the outcome of the initial fair hearing, which must be completed within 90 days after receipt of a request for a fair hearing.
(c) If the resident fails to request a hearing within 10 days after receipt of the facility notice of the proposed discharge or transfer, the facility may transfer or discharge the resident after 30 days from the date the resident received the notice.
(11) Notwithstanding paragraph (10)(b), an emergency discharge or transfer may be implemented as necessary pursuant to state or federal law during the period of time after the notice is given and before the time a hearing decision is rendered. Notice of an emergency discharge or transfer to the resident, the resident’s legal guardian or representative, and the local ombudsman council if requested pursuant to subsection (9) must be by telephone or in person. This notice shall be given before the transfer, if possible, or as soon thereafter as practicable. A local ombudsman council conducting a review under this subsection shall do so within 24 hours after receipt of the request. The resident’s file must be documented to show who was contacted, whether the contact was by telephone or in person, and the date and time of the contact. If the notice is not given in writing, written notice meeting the requirements of subsection (8) must be given the next working day.
(12) After receipt of any notice required under this section, the local ombudsman council may request a private informal conversation with a resident to whom the notice is directed, and, if known, a family member or the resident’s legal guardian or designee, to ensure that the facility is proceeding with the discharge or transfer in accordance with the requirements of this section. If requested, the local ombudsman council shall assist the resident with filing an appeal of the proposed discharge or transfer.
(13) The following persons must be present at all hearings authorized under this section:
(a) The resident, or the resident’s legal representative or designee.
(b) The facility administrator, or the facility’s legal representative or designee.
A representative of the local long-term care ombudsman council may be present at all hearings authorized by this section.
(14) In any hearing under this section, the following information concerning the parties shall be confidential and exempt from the provisions of s. 119.07(1):
(a) Names and addresses.
(b) Medical services provided.
(c) Social and economic conditions or circumstances.
(d) Evaluation of personal information.
(e) Medical data, including diagnosis and past history of disease or disability.
(f) Any information received verifying income eligibility and amount of medical assistance payments. Income information received from the Social Security Administration or the Internal Revenue Service must be safeguarded according to the requirements of the agency that furnished the data.
The exemption created by this subsection does not prohibit access to such information by a local long-term care ombudsman council upon request, by a reviewing court if such information is required to be part of the record upon subsequent review, or as specified in s. 24(a), Art. I of the State Constitution.
(15)(a) The department’s Office of Appeals Hearings shall conduct hearings under this section. The office shall notify the facility of a resident’s request for a hearing.
(b) The department shall, by rule, establish procedures to be used for fair hearings requested by residents. These procedures shall be equivalent to the procedures used for fair hearings for other Medicaid cases, chapter 10-2, part VI, Florida Administrative Code. The burden of proof must be clear and convincing evidence. A hearing decision must be rendered within 90 days after receipt of the request for hearing.
(c) If the hearing decision is favorable to the resident who has been transferred or discharged, the resident must be readmitted to the facility’s first available bed.
(d) The decision of the hearing officer shall be final. Any aggrieved party may appeal the decision to the district court of appeal in the appellate district where the facility is located. Review procedures shall be conducted in accordance with the Florida Rules of Appellate Procedure.
(16) The department may adopt rules necessary to administer this section.
(17) The provisions of this section apply to transfers or discharges that are initiated by the nursing home facility, and not by the resident or by the resident’s physician or legal guardian or representative.
History.—s. 6, ch. 93-217; s. 4, ch. 95-407; s. 34, ch. 96-169; s. 227, ch. 96-406; s. 8, ch. 99-394; s. 138, ch. 2000-349; s. 3, ch. 2000-350; s. 58, ch. 2000-367; ss. 13, 53, ch. 2001-45.
400.051 Homes or institutions exempt from the provisions of this part.—
(1) The following shall be exempt from the provisions of this part:
(a) Any facility, institution, or other place operated by the Federal Government or a federal agency.
(b) Any hospital, as defined in s. 395.002, that is licensed under chapter 395.
(c) Any facility, together with improvements or additions thereto, which has existed and operated continuously in this state for at least 60 years on or before July 1, 1989, and is directly or indirectly owned and operated by a nationally recognized fraternal organization, is not open to the public, and accepts only its own members and their spouses as residents.
(2) Any facility or institution operated by and for persons who rely exclusively upon treatment by spiritual means through prayer, in accordance with the creed or tenets of any organized church or religious denomination, shall be exempt from the provisions of this part. However, such facility or institution shall comply with all applicable laws and rules relating to sanitation and safety.
History.—s. 4, ch. 69-309; s. 4, ch. 70-361; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 2, 3, ch. 81-318; ss. 8, 79, 83, ch. 83-181; s. 1, ch. 88-411; s. 30, ch. 93-177; ss. 7, 49, ch. 93-217; s. 5, ch. 94-206; s. 2, ch. 94-317; s. 34, ch. 98-89; s. 40, ch. 98-171; s. 210, ch. 99-13; s. 57, ch. 2007-230.
400.062 License required; fee; disposition.—
(1) The requirements of part II of chapter 408 apply to the provision of services that require licensure pursuant to this part and part II of chapter 408 and to entities licensed by or applying for such licensure from the Agency for Health Care Administration pursuant to this part. A license issued by the agency is required for the operation of a nursing home in this state.
(2) Separate licenses shall be required for facilities maintained in separate premises, even though operated under the same management. However, a separate license shall not be required for separate buildings on the same grounds.
(3) In accordance with s. 408.805, an applicant or licensee shall pay a fee for each license application submitted under this part, part II of chapter 408, and applicable rules. The license fee shall be comprised of two parts. Part I of the license fee shall be the basic license fee. The rate per bed for the basic license fee shall be established biennially and shall be $100 per bed unless modified by rule. Part II of the license fee shall be the resident protection fee, which shall be at the rate of not less than 50 cents per bed. The rate per bed shall be the minimum rate per bed, and such rate shall remain in effect until the effective date of a rate per bed adopted by rule by the agency pursuant to this part. At such time as the amount on deposit in the Health Care Trust Fund for resident protection is less than $1 million, the agency may adopt rules to establish a rate which may not exceed $20 per bed. The rate per bed shall revert back to the minimum rate per bed when the amount on deposit in the Health Care Trust Fund for resident protection reaches $1 million, except that any rate established by rule shall remain in effect until such time as the rate has been equally required for each license issued under this part. Any amount in the fund in excess of $2 million may not be expended without prior approval of the Legislature. The agency may prorate the biennial license fee for those licenses which it issues under this part for less than 2 years. The resident protection fee collected shall be deposited in the Health Care Trust Fund for the sole purpose of paying, in accordance with the provisions of s. 400.063, for the appropriate alternate placement, care, and treatment of a resident removed from a nursing home facility on a temporary, emergency basis or for the maintenance and care of residents in a nursing home facility pending removal and alternate placement.
(4) Counties or municipalities applying for licenses under this part are exempt from license fees authorized under this section.
History.—s. 5, ch. 70-361; s. 3, ch. 76-168; s. 235, ch. 77-147; s. 1, ch. 77-457; ss. 2, 9, ch. 79-268; ss. 2, 3, ch. 81-318; ss. 1, 19, ch. 82-148; ss. 9, 79, 83, ch. 83-181; s. 8, ch. 91-282; s. 30, ch. 93-177; ss. 8, 49, ch. 93-217; s. 14, ch. 2001-45; s. 58, ch. 2007-230; s. 11, ch. 2008-9.
400.0625 Minimum standards for clinical laboratory test results and diagnostic X-ray results.—
(1) Each nursing home, as a requirement for issuance or renewal of its license, shall require that all clinical laboratory tests performed for the nursing home be performed by a clinical laboratory licensed under the provisions of chapter 483, except for such self-testing procedures as are approved by the agency by rule. Results of clinical laboratory tests performed prior to admission which meet the minimum standards provided in s. 483.181(3) shall be accepted in lieu of routine examinations required upon admission and clinical laboratory tests which may be ordered by a physician for residents of the nursing home.
(2) Each nursing home, as a requirement for issuance or renewal of its license, shall establish minimum standards for acceptance of results of diagnostic X rays performed by or for the nursing home. Such minimum standards shall require licensure or registration of the source of ionizing radiation under the provisions of chapter 404. Diagnostic X-ray results which meet the minimum standards shall be accepted in lieu of routine examinations required upon admission and in lieu of diagnostic X rays which may be ordered by a physician for residents of the nursing home.
History.—ss. 22, 28, ch. 82-182; ss. 10, 79, 81, 83, ch. 83-181; s. 26, ch. 83-215; s. 30, ch. 93-177; ss. 9, 49, ch. 93-217.
Note.—Former s. 400.4175.
400.063 Resident protection.—
(1) The Health Care Trust Fund shall be used for the purpose of collecting and disbursing funds generated from the license fees and administrative fines as provided for in ss. 393.0673(4), 400.062(3), 400.121(2), and 400.23(8). Such funds shall be for the sole purpose of paying for the appropriate alternate placement, care, and treatment of residents who are removed from a facility licensed under this part or a facility specified in s. 393.0678(1) in which the agency determines that existing conditions or practices constitute an immediate danger to the health, safety, or security of the residents. If the agency determines that it is in the best interest of the health, safety, or security of the residents to provide for an orderly removal of the residents from the facility, the agency may utilize such funds to maintain and care for the residents in the facility pending removal and alternative placement. The maintenance and care of the residents shall be under the direction and control of a receiver appointed pursuant to s. 393.0678(1) or s. 400.126(1). However, funds may be expended in an emergency upon a filing of a petition for a receiver, upon the declaration of a state of local emergency pursuant to s. 252.38(3)(a)5., or upon a duly authorized local order of evacuation of a facility by emergency personnel to protect the health and safety of the residents.
(2) The agency is authorized to establish for each facility, subject to intervention by the agency, a separate bank account for the deposit to the credit of the agency of any moneys received from the Health Care Trust Fund or any other moneys received for the maintenance and care of residents in the facility, and the agency is authorized to disburse moneys from such account to pay obligations incurred for the purposes of this section. The agency is authorized to requisition moneys from the Health Care Trust Fund in advance of an actual need for cash on the basis of an estimate by the agency of moneys to be spent under the authority of this section. Any bank account established under this section need not be approved in advance of its creation as required by s. 17.58, but shall be secured by depository insurance equal to or greater than the balance of such account or by the pledge of collateral security in conformance with criteria established in 1s. 18.11. The agency shall notify the Chief Financial Officer of any such account so established and shall make a quarterly accounting to the Chief Financial Officer for all moneys deposited in such account.
(3) Funds authorized under this section shall be expended on behalf of all residents transferred to an alternate placement, at the usual and customary charges of the facility used for the alternate placement, provided no other source of private or public funding is available. However, such funds may not be expended on behalf of a resident who is eligible for Title XIX of the Social Security Act, if the alternate placement accepts Title XIX of the Social Security Act. Funds shall be utilized for maintenance and care of residents in a facility in receivership only to the extent private or public funds, including funds available under Title XIX of the Social Security Act, are not available or are not sufficient to adequately manage and operate the facility, as determined by the agency. The existence of the Health Care Trust Fund shall not make the agency liable for the maintenance of any resident in any facility. The state shall be liable for the cost of alternate placement of residents removed from a deficient facility, or for the maintenance of residents in a facility in receivership, only to the extent that funds are available in the Health Care Trust Fund.
(4) The agency is authorized to adopt rules necessary to implement this section.
History.—ss. 3, 9, ch. 79-268; ss. 4, 18, ch. 80-186; s. 2, ch. 81-318; ss. 11, 79, 83, ch. 83-181; s. 51, ch. 83-218; s. 14, ch. 83-230; s. 1, ch. 87-371; s. 30, ch. 93-177; ss. 10, 49, ch. 93-217; s. 211, ch. 99-13; s. 23, ch. 99-394; s. 416, ch. 2003-261; s. 59, ch. 2007-230; s. 101, ch. 2008-4; s. 12, ch. 2008-9; s. 12, ch. 2008-244.
400.071 Application for license.—
(1) In addition to the requirements of part II of chapter 408, the application for a license shall be under oath and must contain the following:
(a) The location of the facility for which a license is sought and an indication, as in the original application, that such location conforms to the local zoning ordinances.
(b) A signed affidavit disclosing any financial or ownership interest that a controlling interest as defined in part II of chapter 408 has held in the last 5 years in any entity licensed by this state or any other state to provide health or residential care which has closed voluntarily or involuntarily; has filed for bankruptcy; has had a receiver appointed; has had a license denied, suspended, or revoked; or has had an injunction issued against it which was initiated by a regulatory agency. The affidavit must disclose the reason any such entity was closed, whether voluntarily or involuntarily.
(c) The total number of beds and the total number of Medicare and Medicaid certified beds.
(d) Information relating to the applicant and employees which the agency requires by rule. The applicant must demonstrate that sufficient numbers of qualified staff, by training or experience, will be employed to properly care for the type and number of residents who will reside in the facility.
(e) Copies of any civil verdict or judgment involving the applicant rendered within the 10 years preceding the application, relating to medical negligence, violation of residents’ rights, or wrongful death. As a condition of licensure, the licensee agrees to provide to the agency copies of any new verdict or judgment involving the applicant, relating to such matters, within 30 days after filing with the clerk of the court. The information required in this paragraph shall be maintained in the facility’s licensure file and in an agency database which is available as a public record.
(2) As a condition of licensure, each licensee, except one offering continuing care agreements as defined in chapter 651, must agree to accept recipients of Title XIX of the Social Security Act on a temporary, emergency basis. The persons whom the agency may require such licensees to accept are those recipients of Title XIX of the Social Security Act who are residing in a facility in which existing conditions constitute an immediate danger to the health, safety, or security of the residents of the facility.
(3) It is the intent of the Legislature that, in reviewing a certificate-of-need application to add beds to an existing nursing home facility, preference be given to the application of a licensee who has been awarded a Gold Seal as provided for in s. 400.235, if the applicant otherwise meets the review criteria specified in s. 408.035.
(4) The agency may develop an abbreviated survey for licensure renewal applicable to a licensee that has continuously operated as a nursing facility since 1991 or earlier, has operated under the same management for at least the preceding 30 months, and has had during the preceding 30 months no class I or class II deficiencies.
(5) As a condition of licensure, each facility must establish and submit with its application a plan for quality assurance and for conducting risk management.
History.—s. 6, ch. 69-309; ss. 19, 35, ch. 69-106; ss. 5, 6, ch. 70-361; s. 1, ch. 70-439; s. 3, ch. 76-168; s. 2, ch. 76-201; s. 236, ch. 77-147; s. 2, ch. 77-323; s. 1, ch. 77-457; ss. 4, 9, ch. 79-268; ss. 5, 18, ch. 80-186; ss. 2, 3, ch. 81-318; ss. 12, 79, 83, ch. 83-181; s. 44, ch. 87-92; s. 30, ch. 93-177; ss. 11, 49, ch. 93-217; s. 11, ch. 97-87; s. 1, ch. 98-85; ss. 41, 71, ch. 98-171; s. 9, ch. 99-394; s. 71, ch. 2000-349; s. 15, ch. 2001-45; s. 25, ch. 2001-53; s. 2, ch. 2001-67; s. 148, ch. 2001-277; s. 18, ch. 2001-377; s. 18, ch. 2003-57; s. 417, ch. 2003-261; s. 46, ch. 2004-267; s. 2, ch. 2004-298; s. 60, ch. 2007-230.
400.0712 Application for inactive license.—
(1) As specified in this section, the agency may issue an inactive license to a nursing home facility for all or a portion of its beds. Any request by a licensee that a nursing home or portion of a nursing home become inactive must be submitted to the agency in the approved format. The facility may not initiate any suspension of services, notify residents, or initiate inactivity before receiving approval from the agency; and a licensee that violates this provision may not be issued an inactive license.
(2) The agency may issue an inactive license to a nursing home that chooses to use an unoccupied contiguous portion of the facility for an alternative use to meet the needs of elderly persons through the use of less restrictive, less institutional services.
(a) An inactive license issued under this subsection may be granted for a period not to exceed the current licensure expiration date but may be renewed by the agency at the time of licensure renewal.
(b) A request to extend the inactive license must be submitted to the agency in the approved format and approved by the agency in writing.
(c) Nursing homes that receive an inactive license to provide alternative services shall not receive preference for participation in the Assisted Living for the Elderly Medicaid waiver.
(3) The agency shall adopt rules pursuant to ss. 120.536(1) and 120.54 necessary to implement this section.
History.—s. 1, ch. 2004-298; s. 61, ch. 2007-230; s. 102, ch. 2008-4; s. 37, ch. 2009-223.
400.102 Action by agency against licensee; grounds.—In addition to the grounds listed in part II of chapter 408, any of the following conditions shall be grounds for action by the agency against a licensee:
(1) An intentional or negligent act materially affecting the health or safety of residents of the facility;
(2) Misappropriation or conversion of the property of a resident of the facility;
(3) Failure to follow the criteria and procedures provided under part I of chapter 394 relating to the transportation, voluntary admission, and involuntary examination of a nursing home resident; or
(4) Fraudulent altering, defacing, or falsifying any medical or nursing home records, or causing or procuring any of these offenses to be committed.
History.—s. 8, ch. 70-361; s. 1, ch. 70-439; s. 3, ch. 76-168; s. 237, ch. 77-147; s. 1, ch. 77-457; ss. 2, 3, ch. 81-318; ss. 13, 79, 83, ch. 83-181; s. 30, ch. 93-177; ss. 12, 49, ch. 93-217; s. 35, ch. 96-169; s. 16, ch. 2001-45; s. 62, ch. 2007-230.
400.111 Disclosure of controlling interest.—In addition to the requirements of part II of chapter 408, the licensee shall submit a signed affidavit disclosing any financial or ownership interest that a controlling interest has held within the last 5 years in any entity licensed by the state or any other state to provide health or residential care which entity has closed voluntarily or involuntarily; has filed for bankruptcy; has had a receiver appointed; has had a license denied, suspended, or revoked; or has had an injunction issued against it which was initiated by a regulatory agency. The affidavit must disclose the reason such entity was closed, whether voluntarily or involuntarily.
History.—s. 10, ch. 69-309; ss. 19, 35, ch. 69-106; s. 7, ch. 70-361; s. 1, ch. 70-439; s. 3, ch. 76-168; s. 238, ch. 77-147; s. 1, ch. 77-457; ss. 5, 9, ch. 79-268; ss. 6, 18, ch. 80-186; ss. 2, 3, ch. 81-318; ss. 2, 19, ch. 82-148; ss. 14, 79, 83, ch. 83-181; s. 30, ch. 93-177; ss. 13, 49, ch. 93-217; s. 17, ch. 2001-45; s. 63, ch. 2007-230.
400.118 Quality assurance; early warning system; monitoring; rapid response teams.—
(1) The agency shall establish an early warning system to detect conditions in nursing facilities that could be detrimental to the health, safety, and welfare of residents. The early warning system shall include, but not be limited to, analysis of financial and quality-of-care indicators that would predict the need for the agency to take action pursuant to the authority set forth in this part.
(2) The agency shall also create teams of experts that can function as rapid response teams to visit nursing facilities identified through the agency’s early warning system. Rapid response teams may visit facilities that request the agency’s assistance. The rapid response teams shall not be deployed for the purpose of helping a facility prepare for a regular survey.
History.—s. 10, ch. 99-394; s. 17, ch. 2000-263; s. 18, ch. 2001-45; s. 38, ch. 2009-223.
400.1183 Resident grievance procedures.—
(1) Every nursing home must have a grievance procedure available to its residents and their families. The grievance procedure must include:
(a) An explanation of how to pursue redress of a grievance.
(b) The names, job titles, and telephone numbers of the employees responsible for implementing the facility’s grievance procedure. The list must include the address and the toll-free telephone numbers of the ombudsman and the agency.
(c) A simple description of the process through which a resident may, at any time, contact the toll-free telephone hotline of the ombudsman or the agency to report the unresolved grievance.
(d) A procedure for providing assistance to residents who cannot prepare a written grievance without help.
(2) Each nursing home facility shall maintain records of all grievances and a report, subject to agency inspection, of the total number of grievances handled, a categorization of the cases underlying the grievances, and the final disposition of the grievances.
(3) Each facility must respond to the grievance within a reasonable time after its submission.
(4) The agency may investigate any grievance at any time.
History.—s. 19, ch. 2001-45; s. 64, ch. 2007-230; s. 5, ch. 2012-160.
400.119 Confidentiality of records and meetings of risk management and quality assurance committees.—
(1) Incident reports filed with the risk manager and administrator of a long-term care facility licensed under this part or part I of chapter 429, notifications of the occurrence of an adverse incident, and adverse incident reports from the facility are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
(2)(a) The meetings of an internal risk management and quality assurance committee of a long-term care facility licensed under this part or part I of chapter 429 are exempt from s. 286.011 and s. 24(b), Art. I of the State Constitution.
(b) Records of those meetings are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
(3)(a) If the Agency for Health Care Administration has a reasonable belief that conduct by a staff member or employee of a facility is criminal activity or grounds for disciplinary action by a regulatory board, the agency may disclose records made confidential and exempt pursuant to this section to the appropriate law enforcement agency or regulatory board.
(b) Records disclosed to a law enforcement agency remain confidential and exempt until criminal charges are filed.
(4) Records made confidential and exempt under this section and that are obtained by a regulatory board are not available to the public as part of the record of investigation and prosecution in a disciplinary proceeding made available to the public by the agency or the appropriate regulatory board. However, the agency or the appropriate regulatory board shall make available, upon request by a health care professional against whom probable cause has been found, any such records that form the basis of the determination of probable cause.
History.—s. 1, ch. 2001-44; s. 59, ch. 2002-1; s. 1, ch. 2006-110; s. 25, ch. 2006-197.
400.121 Denial, suspension, revocation of license; administrative fines; procedure; order to increase staffing.—
(1) The agency may deny an application, revoke or suspend a license, and impose an administrative fine, not to exceed $500 per violation per day for the violation of any provision of this part, part II of chapter 408, or applicable rules, against any applicant or licensee for the following violations by the applicant, licensee, or other controlling interest:
(a) A violation of any provision of this part, part II of chapter 408, or applicable rules; or
(b) 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 or part II of chapter 408 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 Health Care 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 issued pursuant to this part or part II of chapter 408 which are 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) If the agency has placed a moratorium pursuant to this part or part II of chapter 408 on any facility two times within a 7-year period, the agency may suspend the nursing home license.
(5) An action taken by the agency to deny, suspend, or revoke a facility’s license under this part or part II of chapter 408 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.
(6) 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.
(7) 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.
(8) In addition to any other sanction imposed under this part or part II of chapter 408, 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; s. 65, ch. 2007-230; s. 13, ch. 2008-9.
400.126 Receivership proceedings.—
(1) As an alternative to or in conjunction with an injunctive proceeding, the agency may petition a court of competent jurisdiction for the appointment of a receiver, when any of the following conditions exist:
(a) Any person is operating a facility without a license and refuses to make application for a license as required by s. 400.062.
(b) The licensee is closing the facility or has informed the agency that it intends to close the facility and adequate arrangements have not been made for relocation of the residents within 7 days, exclusive of weekends and holidays, of the closing of the facility. However, the failure on the part of the agency, after receiving notice of the closing of a facility that is certified to provide services under Title XIX of the Social Security Act, a minimum of 90 days prior to the closing date, to make adequate arrangement for relocating those residents who are receiving assistance under the Medicaid program shall in and of itself not be grounds to petition for the appointment of a receiver. Under these circumstances, if a facility remains open beyond the closing date, the agency shall reimburse the facility for all costs incurred, up to the cap, for those residents who are receiving assistance under the Medicaid program, provided the facility continues to be licensed pursuant to this part and certified to provide services under Title XIX of the Social Security Act.
(c) The agency determines that conditions exist in the facility which present an imminent danger to the health, safety, or welfare of the residents of the facility or a substantial probability that death or serious physical harm would result therefrom.
(d) The licensee cannot meet its financial obligation for providing food, shelter, care, and utilities. Evidence such as the issuance of bad checks or an accumulation of delinquent bills for such items as personnel salaries, food, drugs, or utilities shall constitute prima facie evidence that the ownership of the facility lacks the financial ability to operate the home.
(2) Petitions for receivership shall take precedence over other court business unless the court determines that some other pending proceeding, having similar statutory precedence, shall have priority. A hearing shall be conducted within 5 days of the filing of the petition, at which time all interested parties shall have the opportunity to present evidence pertaining to the petition. The agency shall notify the owner or administrator of the facility named in the petition of the filing of the petition and the date set for the hearing. The court may grant the petition only upon finding that the health, safety, or welfare of residents of the facility would be threatened if a condition existing at the time the petition was filed is permitted to continue. A receiver may not be appointed when the owner or administrator, or a representative of the owner or administrator, is not present at the hearing on the petition, unless the court determines that one or more of the conditions in subsection (1) exist; that the facility owner or administrator cannot be found; that all reasonable means of locating the owner or the administrator and notifying him or her of the petition and hearing have been exhausted; or that the owner or administrator, after notification of the hearing, chooses not to attend. After such findings, the court may appoint any person qualified by education, training, or experience to carry out the responsibilities of a receiver pursuant to this section, who must either be qualified pursuant to s. 400.20 or who must employ a licensed nursing home administrator in compliance with s. 400.20, except that the court may not appoint any owner or affiliate of the facility which is in receivership. The receiver may be selected from a list of persons qualified to act as receivers developed by the agency and presented to the court with each petition for receivership. Under no circumstances shall the agency or designated agency employee be appointed as a receiver for more than 60 days; however, the receiver may petition the court, one time only, for a 30-day extension. The court shall grant the extension upon a showing of good cause.
(3) The receiver shall make provisions for the continued health, safety, and welfare of all residents of the facility and:
(a) Shall exercise those powers and perform those duties set out by the court.
(b) Shall operate the facility in such a manner as to assure safety and adequate health care for the residents.
(c) Shall take such action as is reasonably necessary to protect or conserve the assets or property of the facility for which the receiver is appointed, or the proceeds from any transfer thereof, and may use them only in the performance of the powers and duties set forth in this section and by order of the court.
(d) May use the building, fixtures, furnishings, and any accompanying consumable goods in the provision of care and services to residents and to any other persons receiving services from the facility at the time the petition for receivership was filed. The receiver shall collect payments for all goods and services provided to residents or others during the period of the receivership at the same rate of payment charged by the owners at the time the petition for receivership was filed, or at a fair and reasonable rate otherwise approved by the court for private-pay residents. The receiver may apply to the agency for a rate increase for Title XIX of the Social Security Act residents if the facility is not receiving the “state reimbursement cap” and expenditures justify an increase in the rate.
(e) May correct or eliminate any deficiency in the structure or furnishings of the facility which endangers the safety or health of residents while they remain in the facility, provided the total cost of correction does not exceed $10,000. The court may order expenditures for this purpose in excess of $10,000 on application from the receiver after notice to the owner and a hearing.
(f) May let contracts and hire agents and employees to carry out the powers and duties of the receiver under this section.
(g) Shall honor all leases, mortgages, and secured transactions governing the building in which the facility is located and all goods and fixtures in the building of which the receiver has taken possession, but only to the extent of payments which, in the case of a rental agreement, are for the use of the property during the period of receivership, or which, in the case of a purchase agreement, become due during the period of receivership.
(h) Shall have full power to direct and manage and to discharge employees of the facility, subject to any contract rights they may have. The receiver shall pay employees at the rate of compensation, including benefits, approved by the court. A receivership does not relieve the owner of any obligation to employees made prior to the appointment of a receiver and not carried out by the receiver.
(i) Shall be entitled to take possession of all property or assets of residents which are in the possession of a facility or its owner. The receiver shall preserve all property or assets and all resident records of which the receiver takes possession and shall provide for the prompt transfer of the property, assets, and records to the new placement of any transferred resident. An inventory list certified by the owner and receiver shall be made at the time the receiver takes possession of the facility.
(4)(a) A person who is served with notice of an order of the court appointing a receiver and of the receiver’s name and address shall be liable to pay the receiver for any goods or services provided by the receiver after the date of the order if the person would have been liable for the goods or services as supplied by the owner. The receiver shall give a receipt for each payment and shall keep a copy of each receipt on file. The receiver shall deposit accounts received in a separate account and shall use this account for all disbursements.
(b) The receiver may bring an action to enforce the liability created by paragraph (a).
(c) A payment to the receiver of any sum owing to the facility or its owner shall discharge any obligation to the facility to the extent of the payment.
(5)(a) A receiver may petition the court that he or she not be required to honor any lease, mortgage, secured transaction, or other wholly or partially executory contract entered into by the owner of the facility if the rent, price, or rate of interest required to be paid under the agreement was substantially in excess of a reasonable rent, price, or rate of interest at the time the contract was entered into, or if any material provision of the agreement was unreasonable, when compared to contracts negotiated under similar conditions. Any relief in this form provided by the court shall be limited to the life of the receivership, unless otherwise determined by the court.
(b) If the receiver is in possession of real estate or goods subject to a lease, mortgage, or security interest which the receiver has obtained a court order to avoid under paragraph (a), and if the real estate or goods are necessary for the continued operation of the facility under this section, the receiver may apply to the court to set a reasonable rental, price, or rate of interest to be paid by the receiver during the duration of the receivership. The court shall hold a hearing on the application within 15 days. The receiver shall send notice of the application to any known persons who own the property involved or mortgage holders at least 10 days prior to the hearing. Payment by the receiver of the amount determined by the court to be reasonable is a defense to any action against the receiver for payment or for possession of the goods or real estate subject to the lease, security interest, or mortgage involved by any person who received such notice, but the payment does not relieve the owner of the facility of any liability for the difference between the amount paid by the receiver and the amount due under the original lease, security interest, or mortgage involved.
(6) The court shall set the compensation of the receiver, which will be considered a necessary expense of a receivership.
(7) A receiver may be held liable in a personal capacity only for the receiver’s own gross negligence, intentional acts, or breach of fiduciary duty.
(8) The court may require a receiver to post a bond.
(9) The court may terminate a receivership when:
(a) The court determines that the receivership is no longer necessary because the conditions which gave rise to the receivership no longer exist; or
(b) All of the residents in the facility have been transferred or discharged.
(10) Within 30 days after the termination, unless this time period is extended by the court, the receiver shall give the court a complete accounting of all property of which the receiver has taken possession, of all funds collected and disbursed, and of the expenses of the receivership.
(11) Nothing in this section shall be deemed to relieve any owner, administrator, or employee of a facility placed in receivership of any civil or criminal liability incurred, or of any duty imposed by law, by reason of acts or omissions of the owner, administrator, or employee prior to the appointment of a receiver; nor shall anything contained in this section be construed to suspend during the receivership any obligation of the owner, administrator, or employee for payment of taxes or other operating and maintenance expenses of the facility, or of the owner, administrator, employee, or any other person for the payment of mortgages or liens. The owner shall retain the right to sell or mortgage any facility under receivership, subject to approval of the court which ordered the receivership. A licensee that is placed in receivership by the court is liable for all expenses and costs incurred by the Health Care Trust Fund that are related to capital improvement and operating costs and are no more than 10 percent above the facility’s Medicaid rate which occur as a result of the receivership.
(12) Concurrently with the appointment of a receiver, the agency and the Department of Elderly Affairs shall coordinate an assessment of each resident in the facility by the Comprehensive Assessment and Review for Long-Term-Care (CARES) Program for the purpose of evaluating each resident’s need for the level of care provided in a nursing facility and the potential for providing such care in alternative settings. If the CARES assessment determines that a resident could be cared for in a less restrictive setting or does not meet the criteria for skilled or intermediate care in a nursing home, the department and agency shall refer the resident for such care, as is appropriate for the resident. Residents referred pursuant to this subsection shall be given primary consideration for receiving services under the community care for the elderly program in the same manner as persons classified to receive such services pursuant to s. 430.205.
History.—ss. 8, 18, ch. 80-186; s. 2, ch. 81-318; ss. 17, 79, 83, ch. 83-181; s. 51, ch. 83-218; s. 57, ch. 91-282; s. 30, ch. 93-177; ss. 16, 49, ch. 93-217; s. 766, ch. 95-148; s. 21, ch. 2001-45; s. 14, ch. 2008-9.
400.141 Administration and management of nursing home facilities.—
(1) Every licensed facility shall comply with all applicable standards and rules of the agency and shall:
(a) Be under the administrative direction and charge of a licensed administrator.
(b) Appoint a medical director licensed pursuant to chapter 458 or chapter 459. The agency may establish by rule more specific criteria for the appointment of a medical director.
(c) Have available the regular, consultative, and emergency services of physicians licensed by the state.
(d) Provide for resident use of a community pharmacy as specified in s. 400.022(1)(q). Any other law to the contrary notwithstanding, a registered pharmacist licensed in Florida, that is under contract with a facility licensed under this chapter or chapter 429, shall repackage a nursing facility resident’s bulk prescription medication which has been packaged by another pharmacist licensed in any state in the United States into a unit dose system compatible with the system used by the nursing facility, if the pharmacist is requested to offer such service. In order to be eligible for the repackaging, a resident or the resident’s spouse must receive prescription medication benefits provided through a former employer as part of his or her retirement benefits, a qualified pension plan as specified in s. 4972 of the Internal Revenue Code, a federal retirement program as specified under 5 C.F.R. s. 831, or a long-term care policy as defined in s. 627.9404(1). A pharmacist who correctly repackages and relabels the medication and the nursing facility which correctly administers such repackaged medication under this paragraph may not be held liable in any civil or administrative action arising from the repackaging. In order to be eligible for the repackaging, a nursing facility resident for whom the medication is to be repackaged shall sign an informed consent form provided by the facility which includes an explanation of the repackaging process and which notifies the resident of the immunities from liability provided in this paragraph. A pharmacist who repackages and relabels prescription medications, as authorized under this paragraph, may charge a reasonable fee for costs resulting from the implementation of this provision.
(e) Provide for the access of the facility residents to dental and other health-related services, recreational services, rehabilitative services, and social work services appropriate to their needs and conditions and not directly furnished by the licensee. When a geriatric outpatient nurse clinic is conducted in accordance with rules adopted by the agency, outpatients attending such clinic shall not be counted as part of the general resident population of the nursing home facility, nor shall the nursing staff of the geriatric outpatient clinic be counted as part of the nursing staff of the facility, until the outpatient clinic load exceeds 15 a day.
(f) Be allowed and encouraged by the agency to provide other needed services under certain conditions. If the facility has a standard licensure status, it may provide services, including, but not limited to, respite, therapeutic spa, and adult day services to nonresidents of the facility. A facility is not subject to any additional licensure requirements for providing these services. Respite care may be offered to persons in need of short-term or temporary nursing home services. Respite care must be provided in accordance with this part. Providers of adult day services must comply with the requirements of s. 429.905(2). The agency shall allow for shared programming and staff in a facility which meets minimum standards and offers services pursuant to this paragraph, but, if the facility is cited for deficiencies in patient care, may require additional staff and programs appropriate to the needs of service recipients. A person who receives respite care may not be counted as a resident of the facility for purposes of the facility’s licensed capacity unless that person receives 24-hour respite care. A person receiving either respite care for 24 hours or longer or adult day services must be included when calculating minimum staffing for the facility. Any costs and revenues generated by a nursing home facility from nonresidential programs or services shall be excluded from the calculations of Medicaid per diems for nursing home institutional care reimbursement.
(g) If the facility has a standard license, exceeds the minimum required hours of licensed nursing and certified nursing assistant direct care per resident per day, and is part of a continuing care facility licensed under chapter 651 or a retirement community that offers other services pursuant to part III of this chapter or part I or part III of chapter 429 on a single campus, be allowed to share programming and staff. At the time of inspection, a continuing care facility or retirement community that uses this option must demonstrate through staffing records that minimum staffing requirements for the facility were met. Licensed nurses and certified nursing assistants who work in the facility may be used to provide services elsewhere on campus if the facility exceeds the minimum number of direct care hours required per resident per day and the total number of residents receiving direct care services from a licensed nurse or a certified nursing assistant does not cause the facility to violate the staffing ratios required under s. 400.23(3)(a). Compliance with the minimum staffing ratios must be based on the total number of residents receiving direct care services, regardless of where they reside on campus. If the facility receives a conditional license, it may not share staff until the conditional license status ends. This paragraph does not restrict the agency’s authority under federal or state law to require additional staff if a facility is cited for deficiencies in care which are caused by an insufficient number of certified nursing assistants or licensed nurses. The agency may adopt rules for the documentation necessary to determine compliance with this provision.
(h) Maintain the facility premises and equipment and conduct its operations in a safe and sanitary manner.
(i) If the licensee furnishes food service, provide a wholesome and nourishing diet sufficient to meet generally accepted standards of proper nutrition for its residents and provide such therapeutic diets as may be prescribed by attending physicians. In making rules to implement this paragraph, the agency shall be guided by standards recommended by nationally recognized professional groups and associations with knowledge of dietetics.
(j) Keep full records of resident admissions and discharges; medical and general health status, including medical records, personal and social history, and identity and address of next of kin or other persons who may have responsibility for the affairs of the resident; and individual resident care plans, including, but not limited to, prescribed services, service frequency and duration, and service goals. The records must be open to agency inspection. The licensee shall maintain clinical records on each resident in accordance with accepted professional standards and practices, which must be complete, accurately documented, readily accessible, and systematically organized.
(k) Keep such fiscal records of its operations and conditions as may be necessary to provide information pursuant to this part.
(l) Furnish copies of personnel records for employees affiliated with such facility, to any other facility licensed by this state requesting this information pursuant to this part. Such information contained in the records may include, but is not limited to, disciplinary matters and any reason for termination. Any facility releasing such records pursuant to this part shall be considered to be acting in good faith and may not be held liable for information contained in such records, absent a showing that the facility maliciously falsified such records.
(m) Publicly display a poster provided by the agency containing the names, addresses, and telephone numbers for the state’s abuse hotline, the State Long-Term Care Ombudsman, the Agency for Health Care Administration consumer hotline, the Advocacy Center for Persons with Disabilities, the Florida Statewide Advocacy Council, and the Medicaid Fraud Control Unit, with a clear description of the assistance to be expected from each.
(n) Comply with state minimum-staffing requirements:
1. A facility that has failed to comply with state minimum-staffing requirements for 2 consecutive days is prohibited from accepting new admissions until the facility has achieved the minimum-staffing requirements for 6 consecutive days. For the purposes of this subparagraph, any person who was a resident of the facility and was absent from the facility for the purpose of receiving medical care at a separate location or was on a leave of absence is not considered a new admission. Failure by the facility to impose such an admissions moratorium is subject to a $1,000 fine.
2. A facility that does not have a conditional license may be cited for failure to comply with the standards in s. 400.23(3)(a)1.b. and c. only if it has failed to meet those standards on 2 consecutive days or if it has failed to meet at least 97 percent of those standards on any one day.
3. A facility that has a conditional license must be in compliance with the standards in s. 400.23(3)(a) at all times.
(o) Notify a licensed physician when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment. The notification must occur within 30 days after the acknowledgment of such signs by facility staff. If an underlying condition is determined to exist, the facility shall, with the appropriate health care provider, arrange for the necessary care and services to treat the condition.
(p) If the facility implements a dining and hospitality attendant program, ensure that the program is developed and implemented under the supervision of the facility director of nursing. A licensed nurse, licensed speech or occupational therapist, or a registered dietitian must conduct training of dining and hospitality attendants. A person employed by a facility as a dining and hospitality attendant must perform tasks under the direct supervision of a licensed nurse.
(q) Maintain general and professional liability insurance coverage that is in force at all times. In lieu of such coverage, a state-designated teaching nursing home and its affiliated assisted living facilities created under s. 430.80 may demonstrate proof of financial responsibility as provided in s. 430.80(3)(g).
(r) Maintain in the medical record for each resident a daily chart of certified nursing assistant services provided to the resident. The certified nursing assistant who is caring for the resident must complete this record by the end of his or her shift. This record must indicate assistance with activities of daily living, assistance with eating, and assistance with drinking, and must record each offering of nutrition and hydration for those residents whose plan of care or assessment indicates a risk for malnutrition or dehydration.
(s) Before November 30 of each year, subject to the availability of an adequate supply of the necessary vaccine, provide for immunizations against influenza viruses to all its consenting residents in accordance with the recommendations of the United States Centers for Disease Control and Prevention, subject to exemptions for medical contraindications and religious or personal beliefs. Subject to these exemptions, any consenting person who becomes a resident of the facility after November 30 but before March 31 of the following year must be immunized within 5 working days after becoming a resident. Immunization shall not be provided to any resident who provides documentation that he or she has been immunized as required by this paragraph. This paragraph does not prohibit a resident from receiving the immunization from his or her personal physician if he or she so chooses. A resident who chooses to receive the immunization from his or her personal physician shall provide proof of immunization to the facility. The agency may adopt and enforce any rules necessary to comply with or implement this paragraph.
(t) Assess all residents for eligibility for pneumococcal polysaccharide vaccination (PPV) and vaccinate residents when indicated within 60 days after the effective date of this act in accordance with the recommendations of the United States Centers for Disease Control and Prevention, subject to exemptions for medical contraindications and religious or personal beliefs. Residents admitted after the effective date of this act shall be assessed within 5 working days of admission and, when indicated, vaccinated within 60 days in accordance with the recommendations of the United States Centers for Disease Control and Prevention, subject to exemptions for medical contraindications and religious or personal beliefs. Immunization shall not be provided to any resident who provides documentation that he or she has been immunized as required by this paragraph. This paragraph does not prohibit a resident from receiving the immunization from his or her personal physician if he or she so chooses. A resident who chooses to receive the immunization from his or her personal physician shall provide proof of immunization to the facility. The agency may adopt and enforce any rules necessary to comply with or implement this paragraph.
(u) Annually encourage and promote to its employees the benefits associated with immunizations against influenza viruses in accordance with the recommendations of the United States Centers for Disease Control and Prevention. The agency may adopt and enforce any rules necessary to comply with or implement this paragraph.
(2) Facilities that have been awarded a Gold Seal under the program established in s. 400.235 may develop a plan to provide certified nursing assistant training as prescribed by federal regulations and state rules and may apply to the agency for approval of their program.
History.—s. 13, ch. 69-309; ss. 19, 35, ch. 69-106; s. 12, ch. 70-361; s. 3, ch. 76-168; s. 241, ch. 77-147; s. 3, ch. 77-401; s. 1, ch. 77-457; ss. 9, 18, ch. 80-186; ss. 2, 3, ch. 81-318; ss. 18, 79, 83, ch. 83-181; s. 30, ch. 93-177; ss. 17, 49, ch. 93-217; s. 21, ch. 95-418; s. 12, ch. 99-394; s. 18, ch. 2000-263; s. 4, ch. 2000-350; s. 1, ch. 2001-42; ss. 22, 57, ch. 2001-45; s. 35, ch. 2001-62; s. 144, ch. 2001-277; s. 60, ch. 2002-1; s. 29, ch. 2002-223; s. 6, ch. 2002-400; s. 23, ch. 2003-57; s. 2, ch. 2003-120; s. 1, ch. 2005-136; s. 2, ch. 2006-28; s. 26, ch. 2006-197; s. 67, ch. 2007-230; s. 39, ch. 2009-223; s. 82, ch. 2010-5; s. 1, ch. 2010-156; s. 2, ch. 2010-197; s. 6, ch. 2012-160.
400.1413 Volunteers in nursing homes.—
(1) It is the intent of the Legislature to encourage the involvement of volunteers in nursing homes in this state. The Legislature also acknowledges that the licensee is responsible for all the activities that take place in the nursing home and recognizes the licensee’s need to be aware of and coordinate volunteer activities in the nursing home. Therefore, a nursing home may require that volunteers:
(a) Sign in and out with staff of the nursing home upon entering or leaving the facility.
(b) Wear an identification badge while in the building.
(c) Participate in a facility orientation and training program.
(2) This section does not affect the activities of state or local long-term care ombudsman councils authorized under part I.
History.—s. 23, ch. 2001-45.
400.1415 Patient records; penalties for alteration.—
(1) Any person who fraudulently alters, defaces, or falsifies any medical record or releases medical records for the purposes of solicitation or marketing the sale of goods or services absent a specific written release or authorization permitting utilization of patient information, or other nursing home record, or causes or procures any of these offenses to be committed, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(2) A conviction under subsection (1) is also grounds for restriction, suspension, or termination of license privileges.
History.—s. 5, ch. 93-217; s. 7, ch. 99-394; s. 11, ch. 2001-222; s. 142, ch. 2001-277.
Note.—Former s. 400.0231.
400.142 Emergency medication kits; orders not to resuscitate.—
(1) Other provisions of this chapter or of chapter 465, chapter 499, or chapter 893 to the contrary notwithstanding, each nursing home operating pursuant to a license issued by the agency may maintain an emergency medication kit for the purpose of storing medicinal drugs to be administered under emergency conditions to residents residing in such facility.
(2) The agency shall adopt such rules as it may deem appropriate to the effective implementation of this act, including, but not limited to, rules which:
(a) Define the term “emergency medication kit.”
(b) Describe the medicinal drugs eligible to be placed in emergency medication kits.
(c) Establish requirements for the storing of medicinal drugs in emergency medication kits and the maintenance of records with respect thereto.
(d) Establish requirements for the administration of medicinal drugs to residents under emergency conditions from emergency medication kits.
(3) Facility staff may withhold or withdraw cardiopulmonary resuscitation if presented with an order not to resuscitate executed pursuant to s. 401.45. Facility staff and facilities are not subject to criminal prosecution or civil liability, or considered to have engaged in negligent or unprofessional conduct, for withholding or withdrawing cardiopulmonary resuscitation pursuant to such order. The absence of an order not to resuscitate executed pursuant to s. 401.45 does not preclude a physician from withholding or withdrawing cardiopulmonary resuscitation as otherwise permitted by law.
History.—ss. 40, 83, ch. 83-181; s. 30, ch. 93-177; ss. 32, 49, ch. 93-217; s. 3, ch. 99-331; s. 2, ch. 2000-295; s. 7, ch. 2012-160.
Note.—Former s. 400.3221.
400.145 Records of care and treatment of resident; copies to be furnished.—
(1) Unless expressly prohibited by a legally competent resident, any nursing home licensed pursuant to this part shall furnish to the spouse, guardian, surrogate, proxy, or attorney in fact, as provided in chapters 744 and 765, of a current resident, within 7 working days after receipt of a written request, or of a former resident, within 10 working days after receipt of a written request, a copy of that resident’s records which are in the possession of the facility. Such records shall include medical and psychiatric records and any records concerning the care and treatment of the resident performed by the facility, except progress notes and consultation report sections of a psychiatric nature. Copies of such records shall not be considered part of a deceased resident’s estate and may be made available prior to the administration of an estate, upon request, to the spouse, guardian, surrogate, proxy, or attorney in fact, as provided in chapters 744 and 765. A facility may charge a reasonable fee for the copying of resident records. Such fee shall not exceed $1 per page for the first 25 pages and 25 cents per page for each page in excess of 25 pages. The facility shall further allow any such spouse, guardian, surrogate, proxy, or attorney in fact, as provided in chapters 744 and 765, to examine the original records in its possession, or microfilms or other suitable reproductions of the records, upon such reasonable terms as shall be imposed, to help assure that the records are not damaged, destroyed, or altered.
(2) No person shall be allowed to obtain copies of residents’ records pursuant to this section more often than once per month, except that physician’s reports in the residents’ records may be obtained as often as necessary to effectively monitor the residents’ condition.
History.—s. 1, ch. 87-302; s. 23, ch. 91-71; s. 30, ch. 93-177; s. 18, ch. 93-217; s. 228, ch. 96-406.
400.147 Internal risk management and quality assurance program.—
(1) Every facility shall, as part of its administrative functions, establish an internal risk management and quality assurance program, the purpose of which is to assess resident care practices; review facility quality indicators, facility incident reports, deficiencies cited by the agency, and resident grievances; and develop plans of action to correct and respond quickly to identified quality deficiencies. The program must include:
(a) A designated person to serve as risk manager, who is responsible for implementation and oversight of the facility’s risk management and quality assurance program as required by this section.
(b) A risk management and quality assurance committee consisting of the facility risk manager, the administrator, the director of nursing, the medical director, and at least three other members of the facility staff. The risk management and quality assurance committee shall meet at least monthly.
(c) Policies and procedures to implement the internal risk management and quality assurance program, which must include the investigation and analysis of the frequency and causes of general categories and specific types of adverse incidents to residents.
(d) The development and implementation of an incident reporting system based upon the affirmative duty of all health care providers and all agents and employees of the licensed health care facility to report adverse incidents to the risk manager, or to his or her designee, within 3 business days after their occurrence.
(e) The development of appropriate measures to minimize the risk of adverse incidents to residents, including, but not limited to, education and training in risk management and risk prevention for all nonphysician personnel, as follows:
1. Such education and training of all nonphysician personnel must be part of their initial orientation; and
2. At least 1 hour of such education and training must be provided annually for all nonphysician personnel of the licensed facility working in clinical areas and providing resident care.
(f) The analysis of resident grievances that relate to resident care and the quality of clinical services.
(2) The internal risk management and quality assurance program is the responsibility of the facility administrator.
(3) In addition to the programs mandated by this section, other innovative approaches intended to reduce the frequency and severity of adverse incidents to residents and violations of residents’ rights shall be encouraged and their implementation and operation facilitated.
(4) Each internal risk management and quality assurance program shall include the use of incident reports to be filed with the risk manager and the facility administrator. The risk manager shall have free access to all resident records of the licensed facility. The incident reports are part of the workpapers of the attorney defending the licensed facility in litigation relating to the licensed facility and are subject to discovery, but are not admissible as evidence in court. A person filing an incident report is not subject to civil suit by virtue of such incident report. As a part of each internal risk management and quality assurance program, the incident reports shall be used to develop categories of incidents which identify problem areas. Once identified, procedures shall be adjusted to correct the problem areas.
(5) For purposes of reporting to the agency under this section, the term “adverse incident” means:
(a) An event over which facility personnel could exercise control and which is associated in whole or in part with the facility’s intervention, rather than the condition for which such intervention occurred, and which results in one of the following:
1. Death;
2. Brain or spinal damage;
3. Permanent disfigurement;
4. Fracture or dislocation of bones or joints;
5. A limitation of neurological, physical, or sensory function;
6. Any condition that required medical attention to which the resident has not given his or her informed consent, including failure to honor advanced directives;
7. Any condition that required the transfer of the resident, within or outside the facility, to a unit providing a more acute level of care due to the adverse incident, rather than the resident’s condition prior to the adverse incident; or
8. An event that is reported to law enforcement or its personnel for investigation; or
(b) Resident elopement, if the elopement places the resident at risk of harm or injury.
(6) The internal risk manager of each licensed facility shall:
(a) Investigate every allegation of sexual misconduct which is made against a member of the facility’s personnel who has direct patient contact when the allegation is that the sexual misconduct occurred at the facility or at the grounds of the facility;
(b) Report every allegation of sexual misconduct to the administrator of the licensed facility; and
(c) Notify the resident representative or guardian of the victim that an allegation of sexual misconduct has been made and that an investigation is being conducted.
(7) The nursing home facility shall initiate an investigation within 1 business day after the risk manager or his or her designee has received a report pursuant to paragraph (1)(d). The facility must complete the investigation and submit a report to the agency within 15 calendar days after the adverse incident occurred. The agency shall develop a form for the report which must include the name of the risk manager, information regarding the identity of the affected resident, the type of adverse incident, the initiation of an investigation by the facility, and whether the events causing or resulting in the adverse incident represent a potential risk to any other resident. The report is confidential as provided by law and is not discoverable or admissible in any civil or administrative action, except in disciplinary proceedings by the agency or the appropriate regulatory board. The agency may investigate, as it deems appropriate, any such incident and prescribe measures that must or may be taken in response to the incident. The agency shall review each report and determine whether it potentially involved conduct by the health care professional who is subject to disciplinary action, in which case the provisions of s. 456.073 shall apply.
(8) Abuse, neglect, or exploitation must be reported to the agency as required by 42 C.F.R. s. 483.13(c) and to the department as required by chapters 39 and 415.
(9) The agency shall review, as part of its licensure inspection process, the internal risk management and quality assurance program at each facility regulated by this section to determine whether the program meets standards established in statutory laws and rules, is being conducted in a manner designed to reduce adverse incidents, and is appropriately reporting incidents as required by this section.
(10) There is no monetary liability on the part of, and a cause of action for damages may not arise against, any risk manager for the implementation and oversight of the internal risk management and quality assurance program in a facility licensed under this part as required by this section, or for any act or proceeding undertaken or performed within the scope of the functions of such internal risk management and quality assurance program if the risk manager acts without intentional fraud.
(11) If the agency, through its receipt of the adverse incident reports prescribed in subsection (7), or through any investigation, has a reasonable belief that conduct by a staff member or employee of a facility is grounds for disciplinary action by the appropriate regulatory board, the agency shall report this fact to the regulatory board.
(12) The agency may adopt rules to administer this section.
(13) Information gathered by a credentialing organization under a quality assurance program is not discoverable from the credentialing organization. This subsection does not limit discovery of, access to, or use of facility records, including those records from which the credentialing organization gathered its information.
History.—s. 24, ch. 2001-45; s. 8, ch. 2002-400; s. 40, ch. 2009-223; s. 8, ch. 2012-160.
400.148 Medicaid “Up-or-Out” Quality of Care Contract Management Program.—
(1) The Legislature finds that the federal Medicare program has implemented successful models of managing the medical and supportive-care needs of long-term nursing home residents. These programs have maintained the highest practicable level of good health and have the potential to reduce the incidence of preventable illnesses among long-stay residents of nursing homes, thereby increasing the quality of care for residents and reducing the number of lawsuits against nursing homes. Such models are operated at no cost to the state. It is the intent of the Legislature that the Agency for Health Care Administration replicate such oversight for Medicaid recipients in poor-performing nursing homes and in assisted living facilities and nursing homes that are experiencing disproportionate numbers of lawsuits, with the goal of improving the quality of care in such homes or facilitating the revocation of licensure.
(2) The pilot project must ensure:
(a) Oversight and coordination of all aspects of a resident’s medical care and stay in a nursing home;
(b) Facilitation of close communication between the resident, the resident’s guardian or legal representative, the resident’s attending physician, the resident’s family, and staff of the nursing facility;
(c) Frequent onsite visits to the resident;
(d) Early detection of medical or quality problems that have the potential to lead to adverse outcomes and unnecessary hospitalization;
(e) Close communication with regulatory staff;
(f) Immediate investigation of resident quality-of-care complaints and communication and cooperation with the appropriate entity to address those complaints, including the ombudsman, state agencies, agencies responsible for Medicaid program integrity, and local law enforcement agencies;
(g) Assistance to the resident or the resident’s representative to relocate the resident if quality-of-care issues are not otherwise addressed; and
(h) Use of Medicare and other third-party funds to support activities of the program, to the extent possible.
(3) The agency shall model the pilot project activities after such Medicare-approved demonstration projects.
(4) The agency may contract to provide similar oversight services to Medicaid recipients.
(5) The agency shall, jointly with the Statewide Public Guardianship Office, develop a system in the pilot project areas to identify Medicaid recipients who are residents of a participating nursing home or assisted living facility who have diminished ability to make their own decisions and who do not have relatives or family available to act as guardians in nursing homes listed on the Nursing Home Guide Watch List. The agency and the Statewide Public Guardianship Office shall give such residents priority for publicly funded guardianship services.
History.—s. 25, ch. 2001-45; s. 107, ch. 2010-102.
400.151 Contracts.—
(1) The presence of each resident in a facility shall be covered by a contract, executed by the licensee and the resident or his or her designee or legal representative at the time of admission or prior thereto and at the expiration of the term of a previous contract, and modified by the licensee and the resident or his or her designee or legal representative at the time the source of payment for the resident’s care changes. Each party to the contract is entitled to a duplicate original thereof, printed in boldfaced type, and the licensee shall keep on file all contracts which it has with residents. The licensee may not destroy or otherwise dispose of any such contract until 5 years after its expiration or such longer period as may be provided in the rules of the agency. Microfilmed records or records reproduced by a similar process of duplication may be kept in lieu of the original records.
(2) Each contract to which this section applies shall contain express provisions specifically setting forth the services and accommodations to be provided by the licensee, the rates or charges therefor, bed reservation and refund policies, and any other matters which the parties deem appropriate. The licensee shall attach to the contract a list of services and supplies available but not covered by the per diem rate of the facility or by Titles XVIII and XIX of the Social Security Act and the standard charge to the resident for each item. The licensee shall provide written notification to each party to the contract of any changes in any attachment thereto, no fewer than 14 days in advance of the effective date of those changes. The agency shall specify by rule an alternative method for notification of changes in the cost of supplies. If the resident is a party to the contract, the licensee shall provide him or her with a written and oral notification of the changes.
History.—s. 14, ch. 69-309; ss. 19, 35, ch. 69-106; s. 13, ch. 70-361; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 10, 18, ch. 80-186; ss. 2, 3, ch. 81-318; ss. 19, 79, 83, ch. 83-181; s. 46, ch. 85-81; s. 30, ch. 93-177; ss. 19, 49, ch. 93-217; s. 767, ch. 95-148.
400.162 Property and personal affairs of residents.—
(1) The admission of a resident to a facility and his or her presence in the facility shall not confer on the facility or its owner, administrator, employees, or representatives any authority to manage, use, or dispose of any property of the resident; nor shall such admission or presence confer on any of the aforementioned persons any authority or responsibility for the personal affairs of the resident, except that which may be necessary for the safety and orderly management of the facility.
(2) No licensee, owner, administrator, employee, or representative thereof shall act as guardian, trustee, or conservator for any resident of the facility or any of such resident’s property unless the person is the resident’s spouse or a blood relative within the third degree of consanguinity.
(3) A licensee shall provide for the safekeeping of personal effects, funds, and other property of the resident in the facility. Whenever necessary for the protection of valuables, or in order to avoid unreasonable responsibility therefor, the licensee may require that such valuables be excluded or removed from the facility and kept at some place not subject to the control of the licensee. At the request of a resident, the facility shall mark the resident’s personal property with the resident’s name or another type of identification, without defacing the property. Any theft or loss of a resident’s personal property shall be documented by the facility. The facility shall develop policies and procedures to minimize the risk of theft or loss of the personal property of residents. A copy of the policy shall be provided to every employee and to each resident and the resident’s representative if appropriate at admission and when revised. Facility policies must include provisions related to reporting theft or loss of a resident’s property to law enforcement and any facility waiver of liability for loss or theft.
(4) A licensee shall keep complete and accurate records of all funds and other effects and property of its residents received by it for safekeeping.
(5)(a) Any funds or other property belonging to a resident which are received by a licensee shall be held in trust. Funds held in trust shall be kept separate from the funds and property of the facility; shall be deposited in a bank, savings association, trust company, or credit union located in this state and, if possible, located in the same district in which the facility is located; shall not be represented as part of the assets of the facility on a financial statement; and shall be used or otherwise expended only for the account of the resident.
(b)1. Any licensee which holds resident funds in trust, as provided in paragraph (a), during the period for which a license is requested or issued shall file a surety bond with the agency in an amount equal to twice the average monthly balance in the resident trust fund during the prior year or $5,000, whichever is greater. The bond shall be executed by the licensee as principal and by a surety company authorized and licensed to do business in the state as surety. The bond shall be conditioned upon the faithful compliance of the licensee with the provisions of this section and shall run to the agency for the benefit of any resident injured by the violation by the licensee of the provisions of this section.
2. A new bond or a proper continuation certificate shall be required on the annual renewal date of each licensee’s bond. Such bond or certificate shall be filed with the agency as provided in subparagraph 1.
3. Any surety company which cancels or does not renew the bond of any licensee shall notify the agency, in writing, not less than 30 days in advance of such action, giving the reason for the cancellation or nonrenewal.
(c) As an alternative to posting a surety bond, the licensee may enter into a self-insurance agreement as specified in rules adopted by the agency. Funds contained in the pool shall run to any resident suffering financial loss as a result of the violation by the licensee of the provisions of this section. Such funds shall be awarded to any resident in an amount equal to the amount that the resident can establish, by affidavit or other adequate evidence, was deposited in trust with the licensee and which could not be paid to the resident within 30 days of the resident’s request. The agency shall promulgate rules with regard to the establishment, organization, and operation of such self-insurance pools. Such rules shall include, but shall not be limited to, requirements for monetary reserves to be maintained by such self-insurers to assure their financial solvency.
(d) If, at any time during the period for which a license is issued, a licensee that has not purchased a surety bond or entered into a self-insurance agreement, as provided in paragraphs (b) and (c), is requested to provide safekeeping for the personal funds of a resident, the licensee shall notify the agency of the request and make application for a surety bond or for participation in a self-insurance agreement within 7 days of the request, exclusive of weekends and holidays. Copies of the application, along with written documentation of related correspondence with an insurance agency or group, shall be maintained by the licensee for review by the agency and the State Nursing Home and Long-Term Care Facility Ombudsman Council.
(e) Moneys or securities received as advance payment for care may at no time exceed the cost of care for a 6-month period.
(f) At least every 3 months, the licensee shall furnish the resident and the guardian, trustee, or conservator, if any, for the resident a complete and verified statement of all funds and other property to which this subsection applies, detailing the amounts and items received, together with their sources and disposition. In any event, the licensee shall furnish such a statement annually and upon the discharge or transfer of a resident. Any governmental agency or private charitable agency contributing funds or other property on account of a resident also shall be entitled to receive such statement annually and upon discharge or transfer and such other report as it may require pursuant to law.
(6) In the event of the death of a resident, a licensee shall return all refunds and funds held in trust to the resident’s personal representative, if one has been appointed at the time the nursing home disburses such funds, and if not, to the resident’s spouse or adult next of kin named in a beneficiary designation form provided by the nursing home to the resident. In the event the resident has no spouse or adult next of kin or such person cannot be located, funds due to the resident shall be placed in an interest-bearing account in a bank, savings association, trust company, or credit union located in this state and, if possible, located within the same district in which the facility is located, which funds shall not be represented as part of the assets of the facility on a financial statement, and the licensee shall maintain such account until such time as the trust funds are disbursed pursuant to the provisions of the Florida Probate Code. All other property of a deceased resident being held in trust by the licensee shall be returned to the resident’s personal representative, if one has been appointed at the time the nursing home disburses such property, and if not, to the resident’s spouse or adult next of kin named in a beneficiary designation form provided by the nursing home to the resident. In the event the resident has no spouse or adult next of kin or such person cannot be located, property being held in trust shall be safeguarded until such time as the property is disbursed pursuant to the provisions of the Florida Probate Code. The trust funds and property of deceased residents shall be kept separate from the funds and the property of the licensee and from the funds and property of the residents of the facility. The nursing home needs to maintain only one account in which the trust funds amounting to less than $100 of deceased residents are placed. However, it shall be the obligation of the nursing home to maintain adequate records to permit compilation of interest due each individual resident’s account. Separate accounts shall be maintained with respect to trust funds of deceased residents equal to or in excess of $100. In the event the trust funds of the deceased resident are not disbursed pursuant to the provisions of the Florida Probate Code within 2 years of the death of the resident, the trust funds shall be deposited in the Health Care Trust Fund and expended as provided for in s. 400.063, notwithstanding the provisions of any other law of this state. Any other property of a deceased resident held in trust by a licensee which is not disbursed in accordance with the provisions of the Florida Probate Code shall escheat to the state as provided by law.
History.—s. 15, ch. 69-309; s. 14, ch. 70-361; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 7, 9, ch. 79-268; ss. 2, 3, ch. 81-318; ss. 3, 19, ch. 82-148; ss. 20, 79, 83, ch. 83-181; s. 1, ch. 85-286; s. 37, ch. 87-225; s. 30, ch. 93-177; ss. 20, 49, ch. 93-217; s. 768, ch. 95-148; s. 13, ch. 99-394; s. 15, ch. 2008-9; s. 41, ch. 2009-223.
400.165 Itemized resident billing, form and content prescribed by the agency.—
(1) Within 7 days following discharge or release from a nursing home, or within 7 days after the earliest date at which the cost of all goods or services provided on behalf of the resident are billed to the facility, the nursing home shall submit to the resident, or to his or her survivor or legal guardian, an itemized statement detailing in language comprehensible to an ordinary layperson the specific nature of charges or expenses incurred by the resident. The initial billing shall contain a statement of specific services received and expenses incurred for such items of service, enumerating in detail the constituent components of the services received within each department of the nursing home and including unit price data on rates charged by the nursing home as may be prescribed by the agency.
(2) Each statement shall:
(a) Not include charges of nursing home-based physicians if billed separately.
(b) Not include any generalized category of expenses such as “other” or “miscellaneous” or similar categories.
(c) List drugs by brand or generic name and may not refer to drug code numbers when referring to drugs of any sort.
(d) Specifically identify therapy treatment as to the date, type, and length of treatment when therapy treatment is a part of the statement. The person receiving a statement pursuant to this section shall be fully and accurately informed as to each charge and service provided by the institution preparing the statement.
(3) On each itemized statement there shall appear the words “A FOR-PROFIT (or NOT-FOR-PROFIT or PUBLIC) NURSING HOME LICENSED BY THE STATE OF FLORIDA” or substantially similar words sufficient to identify clearly and plainly the ownership status of the nursing home.
(4) In any billing for services subsequent to the initial billing for such services, the resident, or the resident’s survivor or legal guardian, may elect, at his or her option, to receive a copy of the detailed statement of specific services received and expenses incurred for each such item of service as provided in subsection (1).
(5) No physician, dentist, or nursing home may add to the price charged by any third party except for a service or handling charge representing a cost actually incurred as an item of expense; however, the physician, dentist, or nursing home is entitled to fair compensation for all professional services rendered. The amount of the service or handling charge, if any, shall be set forth clearly in the bill to the resident.
History.—ss. 22, 27, ch. 82-182; ss. 21, 79, 81, 83, ch. 83-181; s. 30, ch. 93-177; ss. 21, 49, ch. 93-217; s. 769, ch. 95-148.
Note.—Former s. 400.425.
400.17 Bribes, kickbacks, certain solicitations prohibited.—
(1) As used in this section, the term:
(a) “Bribe” means any consideration corruptly given, received, promised, solicited, or offered to any individual with intent or purpose to influence the performance of any act or omission.
(b) “Kickback” means that part of the payment for items or services which is returned to the payor by the provider of such items or services with the intent or purpose to induce the payor to purchase the items or services from the provider.
(2) Whoever furnishes items or services directly or indirectly to a nursing home resident and solicits, offers, or receives any:
(a) Kickback or bribe in connection with the furnishing of such items or services or the making or receipt of such payment; or
(b) Return of part of an amount given in payment for referring any such individual to another person for the furnishing of such items or services;
is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by fine not exceeding $5,000, or both.
(3) No person shall, in connection with the solicitation of contributions to nursing homes, willfully misrepresent or mislead anyone, by any manner, means, practice, or device whatsoever, to believe that the receipts of such solicitation will be used for charitable purposes, if such is not the fact.
(4) Solicitation of contributions of any kind in a threatening, coercive, or unduly forceful manner by or on behalf of a nursing home by any agent, employee, owner, or representative of a nursing home shall be grounds for denial, suspension, or revocation of the license for any nursing home on behalf of which such contributions were solicited.
(5) The admission, maintenance, or treatment of a nursing home resident whose care is supported in whole or in part by state funds may not be made conditional upon the receipt of any manner of contribution or donation from any person. However, this may not be construed to prohibit the offer or receipt of contributions or donations to a nursing home which are not related to the care of a specific resident. Contributions solicited or received in violation of this subsection shall be grounds for denial, suspension, or revocation of a license for any nursing home on behalf of which such contributions were solicited.
History.—s. 16, ch. 69-309; s. 16, ch. 70-361; s. 3, ch. 76-168; s. 3, ch. 76-201; s. 1, ch. 77-457; ss. 2, 3, ch. 81-318; ss. 22, 79, 83, ch. 83-181; s. 30, ch. 93-177; s. 49, ch. 93-217.
400.172 Respite care provided in nursing home facilities.—
(1) For each person admitted for respite care as authorized under s. 400.141(1)(f), a nursing home facility operated by a licensee must:
(a) Have a written abbreviated plan of care that, at a minimum, includes nutritional requirements, medication orders, physician orders, nursing assessments, and dietary preferences. The nursing or physician assessments may take the place of all other assessments required for full-time residents.
(b) Have a contract that, at a minimum, specifies the services to be provided to a resident receiving respite care, including charges for services, activities, equipment, emergency medical services, and the administration of medications. If multiple admissions for a single person for respite care are anticipated, the original contract is valid for 1 year after the date the contract is executed.
(c) Ensure that each resident is released to his or her caregiver or an individual designated in writing by the caregiver.
(2) A person admitted under the respite care program shall:
(a) Be exempt from department rules relating to the discharge planning process.
(b) Be covered by the residents’ rights specified in s. 400.022(1)(a)-(o) and (r)-(t). Funds or property of the resident are not 1to be considered trust funds subject to the requirements of s. 400.022(1)(h) until the resident has been in the facility for more than 14 consecutive days.
(c) Be allowed to use his or her personal medications during the respite stay if permitted by facility policy. The facility must obtain a physician’s order for the medications. The caregiver may provide information regarding the medications as part of the nursing assessment, and that information must agree with the physician’s order. Medications shall be released with the resident upon discharge in accordance with current physician’s orders.
(d) Be entitled to reside in the facility for a total of 60 days within a contract year or for a total of 60 days within a calendar year if the contract is for less than 12 months. However, each single stay may not exceed 14 days. If a stay exceeds 14 consecutive days, the facility must comply with all assessment and care planning requirements applicable to nursing home residents.
(e) Reside in a licensed nursing home bed.
(3) A prospective respite care resident must provide medical information from a physician, physician assistant, or nurse practitioner and any other information provided by the primary caregiver required by the facility before or when the person is admitted to receive respite care. The medical information must include a physician’s order for respite care and proof of a physical examination by a licensed physician, physician assistant, or nurse practitioner. The physician’s order and physical examination may be used to provide intermittent respite care for up to 12 months after the date the order is written.
(4) The facility shall assume the duties of the primary caregiver. To ensure continuity of care and services, the resident may retain his or her personal physician and shall have access to medically necessary services such as physical therapy, occupational therapy, or speech therapy, as needed. The facility shall arrange for transportation of the resident to these services, if necessary.
History.—s. 9, ch. 2012-160.
400.175 Patients with Alzheimer’s disease or other related disorders; certain disclosures.—A facility licensed under this part which claims that it provides special care for persons who have Alzheimer’s disease or other related disorders must disclose in its advertisements or in a separate document those services that distinguish the care as being especially applicable to, or suitable for, such persons. The facility must give a copy of all such advertisements or a copy of the document to each person who requests information about programs and services for persons with Alzheimer’s disease or other related disorders offered by the facility and must maintain a copy of all such advertisements and documents in its records. The agency shall examine all such advertisements and documents in the facility’s records as part of the license renewal procedure.
History.—s. 1, ch. 93-105.
400.1755 Care for persons with Alzheimer’s disease or related disorders.—
(1) As a condition of licensure, facilities licensed under this part must provide to each of their employees, upon beginning employment, basic written information about interacting with persons with Alzheimer’s disease or a related disorder.
(2) All employees who are expected to, or whose responsibilities require them to, have direct contact with residents with Alzheimer’s disease or a related disorder must, in addition to being provided the information required in subsection (1), also have an initial training of at least 1 hour completed in the first 3 months after beginning employment. This training must include, but is not limited to, an overview of dementias and must provide basic skills in communicating with persons with dementia.
(3) An individual who provides direct care shall be considered a direct caregiver and must complete the required initial training and an additional 3 hours of training within 9 months after beginning employment. This training shall include, but is not limited to, managing problem behaviors, promoting the resident’s independence in activities of daily living, and skills in working with families and caregivers.
(a) The required 4 hours of training for certified nursing assistants are part of the total hours of training required annually.
(b) For a health care practitioner as defined in s. 456.001, continuing education hours taken as required by that practitioner’s licensing board shall be counted toward this total of 4 hours.
(4) For an employee who is a licensed health care practitioner as defined in s. 456.001, training that is sanctioned by that practitioner’s licensing board shall be considered to be approved by the Department of Elderly Affairs.
(5) The Department of Elderly Affairs or its designee must approve the initial and continuing training provided in the facilities. The department must approve training offered in a variety of formats, including, but not limited to, Internet-based training, videos, teleconferencing, and classroom instruction. The department shall keep a list of current providers who are approved to provide initial and continuing training. The department shall adopt rules to establish standards for the trainers and the training required in this section.
(6) Upon completing any training listed in this section, the employee or direct caregiver shall be issued a certificate that includes the name of the training provider, the topic covered, and the date and signature of the training provider. The certificate is evidence of completion of training in the identified topic, and the employee or direct caregiver is not required to repeat training in that topic if the employee or direct caregiver changes employment to a different facility or to an assisted living facility, home health agency, adult day care center, or adult family-care home. The direct caregiver must comply with other applicable continuing education requirements.
History.—s. 26, ch. 2001-45; s. 62, ch. 2005-2.
400.176 Rebates prohibited; penalties.—
(1) It is unlawful for any person to pay or receive any commission, bonus, kickback, or rebate or engage in any split-fee arrangement in any form whatsoever with any physician, surgeon, organization, agency, or person, either directly or indirectly, for residents referred to a nursing home licensed under this part.
(2) The agency shall adopt rules which assess administrative penalties for acts prohibited by subsection (1). In the case of an entity licensed by the agency, such penalties may include any disciplinary action available to the agency under the appropriate licensing laws. In the case of an entity not licensed by the agency, such penalties may include:
(a) A fine not to exceed $5,000; and
(b) If applicable, a recommendation by the agency to the appropriate licensing board that disciplinary action be taken.
History.—s. 2, ch. 79-106; s. 2, ch. 81-318; ss. 23, 79, 83, ch. 83-181; s. 30, ch. 93-177; ss. 22, 49, ch. 93-217.
400.179 Liability for Medicaid underpayments and overpayments.—
(1) It is the intent of the Legislature to protect the rights of nursing home residents and the security of public funds when a nursing facility is sold or the ownership is transferred.
(2) Because any transfer of a nursing facility may expose the fact that Medicaid may have underpaid or overpaid the transferor, and because in most instances, any such underpayment or overpayment can only be determined following a formal field audit, the liabilities for any such underpayments or overpayments shall be as follows:
(a) The Medicaid program shall be liable to the transferor for any underpayments owed during the transferor’s period of operation of the facility.
(b) Without regard to whether the transferor had leased or owned the nursing facility, the transferor shall remain liable to the Medicaid program for all Medicaid overpayments received during the transferor’s period of operation of the facility, regardless of when determined.
(c) Where the facility transfer takes any form of a sale of assets, in addition to the transferor’s continuing liability for any such overpayments, if the transferor fails to meet these obligations, the transferee shall be liable for all liabilities that can be readily identifiable 90 days in advance of the transfer. Such liability shall continue in succession until the debt is ultimately paid or otherwise resolved. It shall be the burden of the transferee to determine the amount of all such readily identifiable overpayments from the Agency for Health Care Administration, and the agency shall cooperate in every way with the identification of such amounts. Readily identifiable overpayments shall include overpayments that will result from, but not be limited to:
1. Medicaid rate changes or adjustments;
2. Any depreciation recapture;
3. Any recapture of fair rental value system indexing; or
4. Audits completed by the agency.
The transferor shall remain liable for any such Medicaid overpayments that were not readily identifiable 90 days in advance of the nursing facility transfer.
(d) Where the transfer involves a facility that has been leased by the transferor:
1. The transferee shall, as a condition to being issued a license by the agency, acquire, maintain, and provide proof to the agency of a bond with a term of 30 months, renewable annually, in an amount not less than the total of 3 months’ Medicaid payments to the facility computed on the basis of the preceding 12-month average Medicaid payments to the facility.
2. A leasehold licensee may meet the requirements of subparagraph 1. by payment of a nonrefundable fee, paid at initial licensure, paid at the time of any subsequent change of ownership, and paid annually thereafter, in the amount of 1 percent of the total of 3 months’ Medicaid payments to the facility computed on the basis of the preceding 12-month average Medicaid payments to the facility. If a preceding 12-month average is not available, projected Medicaid payments may be used. The fee shall be deposited into the Grants and Donations Trust Fund and shall be accounted for separately as a Medicaid nursing home overpayment account. These fees shall be used at the sole discretion of the agency to repay nursing home Medicaid overpayments. Payment of this fee shall not release the licensee from any liability for any Medicaid overpayments, nor shall payment bar the agency from seeking to recoup overpayments from the licensee and any other liable party. As a condition of exercising this lease bond alternative, licensees paying this fee must maintain an existing lease bond through the end of the 30-month term period of that bond. The agency is herein granted specific authority to promulgate all rules pertaining to the administration and management of this account, including withdrawals from the account, subject to federal review and approval. This provision shall take effect upon becoming law and shall apply to any leasehold license application. The financial viability of the Medicaid nursing home overpayment account shall be determined by the agency through annual review of the account balance and the amount of total outstanding, unpaid Medicaid overpayments owing from leasehold licensees to the agency as determined by final agency audits. By March 31 of each year, the agency shall assess the cumulative fees collected under this subparagraph, minus any amounts used to repay nursing home Medicaid overpayments and amounts transferred to contribute to the General Revenue Fund pursuant to s. 215.20. If the net cumulative collections, minus amounts utilized to repay nursing home Medicaid overpayments, exceed $25 million, the provisions of this subparagraph shall not apply for the subsequent fiscal year.
3. The leasehold licensee may meet the bond requirement through other arrangements acceptable to the agency. The agency is herein granted specific authority to promulgate rules pertaining to lease bond arrangements.
4. All existing nursing facility licensees, operating the facility as a leasehold, shall acquire, maintain, and provide proof to the agency of the 30-month bond required in subparagraph 1., above, on and after July 1, 1993, for each license renewal.
5. It shall be the responsibility of all nursing facility operators, operating the facility as a leasehold, to renew the 30-month bond and to provide proof of such renewal to the agency annually.
6. Any failure of the nursing facility operator to acquire, maintain, renew annually, or provide proof to the agency shall be grounds for the agency to deny, revoke, and suspend the facility license to operate such facility and to take any further action, including, but not limited to, enjoining the facility, asserting a moratorium pursuant to part II of chapter 408, or applying for a receiver, deemed necessary to ensure compliance with this section and to safeguard and protect the health, safety, and welfare of the facility’s residents. A lease agreement required as a condition of bond financing or refinancing under s. 154.213 by a health facilities authority or required under s. 159.30 by a county or municipality is not a leasehold for purposes of this paragraph and is not subject to the bond requirement of this paragraph.
History.—ss. 12, 18, ch. 80-186; s. 2, ch. 81-318; ss. 24, 79, 83, ch. 83-181; s. 51, ch. 83-218; s. 30, ch. 93-177; ss. 23, 49, ch. 93-217; s. 119, ch. 99-8; s. 15, ch. 2001-377; s. 28, ch. 2002-223; s. 10, ch. 2002-400; s. 1, ch. 2003-405; s. 63, ch. 2005-2; s. 3, ch. 2006-28; s. 68, ch. 2007-230; s. 1, ch. 2008-143; s. 3, ch. 2009-47; s. 13, ch. 2009-82; s. 2, ch. 2010-156; s. 13, ch. 2011-3.
400.18 Closing of nursing facility.—
(1) In addition to the requirements of part II of chapter 408, the licensee also shall inform each resident or the next of kin, legal representative, or agency acting on behalf of the resident of the fact, and the proposed time, of discontinuance of operation and give at least 90 days’ notice so that suitable arrangements may be made for the transfer and care of the resident. In the event any resident has no such person to represent him or her, the licensee shall be responsible for securing a suitable transfer of the resident before the discontinuance of operation. The agency shall be responsible for arranging for the transfer of those residents requiring transfer who are receiving assistance under the Medicaid program.
(2) A representative of the agency shall be placed in a facility 30 days before the voluntary discontinuance of operation, or immediately upon the determination by the agency that the licensee is discontinuing operation or that existing conditions or practices represent an immediate danger to the health, safety, or security of the residents in the facility, to:
(a) Monitor the transfer of residents to other facilities.
(b) Ensure that the rights of residents are protected.
(c) Observe the operation of the facility.
(d) Assist the management of the facility by advising the management on compliance with state and federal laws and rules.
(e) Recommend further action by the agency.
(3) The agency shall discontinue the monitoring of a facility pursuant to subsection (2) when:
(a) All residents in the facility have been relocated; or
(b) The agency determines that the conditions which gave rise to the placement of a representative of the agency in the facility no longer exist and the agency is reasonably assured that those conditions will not recur.
History.—s. 17, ch. 69-309; ss. 19, 35, ch. 69-106; s. 15, ch. 70-361; s. 3, ch. 76-168; s. 4, ch. 76-201; s. 1, ch. 77-457; ss. 11, 18, ch. 80-186; ss. 2, 3, ch. 81-318; ss. 5, 22, ch. 82-182; ss. 25, 79, 83, ch. 83-181; s. 58, ch. 91-282; s. 30, ch. 93-177; ss. 24, 49, ch. 93-217; s. 770, ch. 95-148; s. 69, ch. 2007-230.
400.19 Right of entry and inspection.—
(1) In accordance with part II of chapter 408, the agency and any duly designated officer or employee thereof or a member of the State Long-Term Care Ombudsman Council or the local long-term care ombudsman council shall have the right to enter upon and into the premises of any facility licensed pursuant to this part, or any distinct nursing home unit of a hospital licensed under chapter 395 or any freestanding facility licensed under chapter 395 that provides extended care or other long-term care services, at any reasonable time in order to determine the state of compliance with the provisions of this part, part II of chapter 408, and applicable rules in force pursuant thereto. The agency shall, within 60 days after receipt of a complaint made by a resident or resident’s representative, complete its investigation and provide to the complainant its findings and resolution.
(2) The agency shall coordinate nursing home facility licensing activities and responsibilities of any duly designated officer or employee involved in nursing home facility inspection to assure necessary, equitable, and consistent supervision of inspection personnel without unnecessary duplication of inspections, consultation services, or complaint investigations.
(3) The agency shall every 15 months conduct at least one unannounced inspection to determine compliance by the licensee with statutes, and with rules promulgated under the provisions of those statutes, governing minimum standards of construction, quality and adequacy of care, and rights of residents. The survey shall be conducted every 6 months for the next 2-year period if the facility has been cited for a class I deficiency, has been cited for two or more class II deficiencies arising from separate surveys or investigations within a 60-day period, or has had three or more substantiated complaints within a 6-month period, each resulting in at least one class I or class II deficiency. In addition to any other fees or fines in this part, the agency shall assess a fine for each facility that is subject to the 6-month survey cycle. The fine for the 2-year period shall be $6,000, one-half to be paid at the completion of each survey. The agency may adjust this fine by the change in the Consumer Price Index, based on the 12 months immediately preceding the increase, to cover the cost of the additional surveys. The agency shall verify through subsequent inspection that any deficiency identified during inspection is corrected. However, the agency may verify the correction of a class III or class IV deficiency unrelated to resident rights or resident care without reinspecting the facility if adequate written documentation has been received from the facility, which provides assurance that the deficiency has been corrected. The giving or causing to be given of advance notice of such unannounced inspections by an employee of the agency to any unauthorized person shall constitute cause for suspension of not fewer than 5 working days according to the provisions of chapter 110.
(4) The agency shall conduct unannounced onsite facility reviews following written verification of licensee noncompliance in instances in which a long-term care ombudsman council, pursuant to ss. 400.0071 and 400.0075, has received a complaint and has documented deficiencies in resident care or in the physical plant of the facility that threaten the health, safety, or security of residents, or when the agency documents through inspection that conditions in a facility present a direct or indirect threat to the health, safety, or security of residents. However, the agency shall conduct unannounced onsite reviews every 3 months of each facility while the facility has a conditional license. Deficiencies related to physical plant do not require followup reviews after the agency has determined that correction of the deficiency has been accomplished and that the correction is of the nature that continued compliance can be reasonably expected.
History.—s. 18, ch. 69-309; ss. 19, 35, ch. 69-106; s. 17, ch. 70-361; s. 3, ch. 76-168; s. 5, ch. 76-201; s. 1, ch. 77-457; ss. 35, 36, ch. 79-190; ss. 13, 18, ch. 80-186; ss. 2, 3, ch. 81-318; ss. 12, 19, ch. 82-148; ss. 26, 79, 83, ch. 83-181; ss. 21, 30, ch. 93-177; ss. 25, 49, ch. 93-217; s. 14, ch. 99-394; s. 139, ch. 2000-349; s. 59, ch. 2000-367; s. 27, ch. 2001-45; s. 70, ch. 2007-230.
400.191 Availability, distribution, and posting of reports and records.—
(1) The agency shall provide information to the public about all of the licensed nursing home facilities operating in the state. The agency shall, within 60 days after a licensure inspection visit or within 30 days after any interim visit to a facility, send copies of the inspection reports to the local long-term care ombudsman council, the agency’s local office, and a public library or the county seat for the county in which the facility is located. The agency may provide electronic access to inspection reports as a substitute for sending copies.
(2) The agency shall publish the Nursing Home Guide quarterly in electronic form to assist consumers and their families in comparing and evaluating nursing home facilities.
(a) The agency shall provide an Internet site which shall include at least the following information either directly or indirectly through a link to another established site or sites of the agency’s choosing:
1. A section entitled “Have you considered programs that provide alternatives to nursing home care?” which shall be the first section of the Nursing Home Guide and which shall prominently display information about available alternatives to nursing homes and how to obtain additional information regarding these alternatives. The Nursing Home Guide shall explain that this state offers alternative programs that permit qualified elderly persons to stay in their homes instead of being placed in nursing homes and shall encourage interested persons to call the Comprehensive Assessment Review and Evaluation for Long-Term Care Services (CARES) Program to inquire if they qualify. The Nursing Home Guide shall list available home and community-based programs which shall clearly state the services that are provided and indicate whether nursing home services are included if needed.
2. A list by name and address of all nursing home facilities in this state, including any prior name by which a facility was known during the previous 24-month period.
3. Whether such nursing home facilities are proprietary or nonproprietary.
4. The current owner of the facility’s license and the year that that entity became the owner of the license.
5. The name of the owner or owners of each facility and whether the facility is affiliated with a company or other organization owning or managing more than one nursing facility in this state.
6. The total number of beds in each facility and the most recently available occupancy levels.
7. The number of private and semiprivate rooms in each facility.
8. The religious affiliation, if any, of each facility.
9. The languages spoken by the administrator and staff of each facility.
10. Whether or not each facility accepts Medicare or Medicaid recipients or insurance, health maintenance organization, Veterans Administration, CHAMPUS program, or workers’ compensation coverage.
11. Recreational and other programs available at each facility.
12. Special care units or programs offered at each facility.
13. Whether the facility is a part of a retirement community that offers other services pursuant to part III of this chapter or part I or part III of chapter 429.
14. Survey and deficiency information, including all federal and state recertification, licensure, revisit, and complaint survey information, for each facility for the past 30 months. For noncertified nursing homes, state survey and deficiency information, including licensure, revisit, and complaint survey information for the past 30 months shall be provided.
(b) The agency may provide the following additional information on an Internet site or in printed form as the information becomes available:
1. The licensure status history of each facility.
2. The rating history of each facility.
3. The regulatory history of each facility, which may include federal sanctions, state sanctions, federal fines, state fines, and other actions.
4. Whether the facility currently possesses the Gold Seal designation awarded pursuant to s. 400.235.
5. Internet links to the Internet sites of the facilities or their affiliates.
(3) Each nursing home facility licensee shall maintain as public information, available upon request, records of all cost and inspection reports pertaining to that facility that have been filed with, or issued by, any governmental agency. Copies of the reports shall be retained in the records for not less than 5 years following the date the reports are filed or issued.
(a) The agency shall publish in the Nursing Home Guide a “Nursing Home Guide Watch List” to assist consumers in evaluating the quality of nursing home care in Florida. The watch list must identify each facility that met the criteria for a conditional licensure status and each facility that is operating under bankruptcy protection. The watch list must include, but is not limited to, the facility’s name, address, and ownership; the county in which the facility operates; the license expiration date; the number of licensed beds; a description of the deficiency causing the facility to be placed on the list; any corrective action taken; and the cumulative number of days and percentage of days the facility had a conditional license in the past 30 months. The watch list must include a brief description regarding how to choose a nursing home, the categories of licensure, the agency’s inspection process, an explanation of terms used in the watch list, and the addresses and phone numbers of the agency’s health quality assurance field offices.
(b) Upon publication of each Nursing Home Guide, the agency must post a copy on its website by the 15th calendar day of the second month following the end of the calendar quarter. Each nursing home licensee must retrieve the most recent version of the Nursing Home Guide from the agency’s website.
(4) Any records of a nursing home facility determined by the agency to be necessary and essential to establish lawful compliance with any rules or standards must be made available to the agency on the premises of the facility and submitted to the agency. Each facility must submit this information to the agency by electronic transmission when available.
(5) Every nursing home facility licensee shall:
(a) Post, in a sufficient number of prominent positions in the nursing home so as to be accessible to all residents and to the general public:
1. A concise summary of the last inspection report pertaining to the nursing home and issued by the agency, with references to the page numbers of the full reports, noting any deficiencies found by the agency and the actions taken by the licensee to rectify the deficiencies and indicating in the summaries where the full reports may be inspected in the nursing home.
2. A copy of all of the pages that list the facility in the most recent version of the Nursing Home Guide.
(b) Upon request, provide to any person who has completed a written application with an intent to be admitted to, or to any resident of, a nursing home, or to any relative, spouse, or guardian of the person, a copy of the last inspection report pertaining to the nursing home and issued by the agency, provided the person requesting the report agrees to pay a reasonable charge to cover copying costs.
(6) The agency may adopt rules as necessary to administer this section.
History.—s. 6, ch. 76-201; ss. 2, 12, ch. 80-198; s. 250, ch. 81-259; s. 2, ch. 81-318; ss. 6, 22, ch. 82-182; ss. 27, 79, 83, ch. 83-181; s. 16, ch. 90-347; s. 30, ch. 93-177; ss. 26, 49, ch. 93-217; s. 26, ch. 97-100; s. 15, ch. 99-394; s. 140, ch. 2000-349; s. 5, ch. 2000-350; s. 60, ch. 2000-367; ss. 28, 55, ch. 2001-45; s. 16, ch. 2001-377; s. 38, ch. 2003-1; s. 1, ch. 2006-49; s. 27, ch. 2006-197; s. 71, ch. 2007-230; s. 42, ch. 2009-223.
400.20 Licensed nursing home administrator required.—No nursing home shall operate except under the supervision of a licensed nursing home administrator, and no person shall be a nursing home administrator unless he or she is the holder of a current license as provided in chapter 468.
History.—s. 19, ch. 69-309; s. 18, ch. 70-361; s. 3, ch. 76-168; s. 242, ch. 77-147; s. 1, ch. 77-457; ss. 2, 3, ch. 81-318; ss. 28, 79, 83, ch. 83-181; s. 30, ch. 93-177; ss. 27, 49, ch. 93-217; s. 771, ch. 95-148.
400.211 Persons employed as nursing assistants; certification requirement.—
(1) To serve as a nursing assistant in any nursing home, a person must be certified as a nursing assistant under part II of chapter 464, unless the person is a registered nurse or practical nurse licensed in accordance with part I of chapter 464 or an applicant for such licensure who is permitted to practice nursing in accordance with rules adopted by the Board of Nursing pursuant to part I of chapter 464.
(2) The following categories of persons who are not certified as nursing assistants under part II of chapter 464 may be employed by a nursing facility for a period of 4 months:
(a) Persons who are enrolled in, or have completed, a state-approved nursing assistant program;
(b) Persons who have been positively verified as actively certified and on the registry in another state with no findings of abuse, neglect, or exploitation in that state; or
(c) Persons who have preliminarily passed the state’s certification exam.
The certification requirement must be met within 4 months after initial employment as a nursing assistant in a licensed nursing facility.
(3) Nursing homes shall require persons seeking employment as a certified nursing assistant to submit an employment history to the facility. The facility shall verify the employment history unless, through diligent efforts, such verification is not possible. There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, a former employer who reasonably and in good faith communicates his or her honest opinion about a former employee’s job performance.
(4) When employed by a nursing home facility for a 12-month period or longer, a nursing assistant, to maintain certification, shall submit to a performance review every 12 months and must receive regular inservice education based on the outcome of such reviews. The inservice training must:
(a) Be sufficient to ensure the continuing competence of nursing assistants and must meet the standard specified in s. 464.203(7);
(b) Include, at a minimum:
1. Techniques for assisting with eating and proper feeding;
2. Principles of adequate nutrition and hydration;
3. Techniques for assisting and responding to the cognitively impaired resident or the resident with difficult behaviors;
4. Techniques for caring for the resident at the end-of-life; and
5. Recognizing changes that place a resident at risk for pressure ulcers and falls; and
(c) Address areas of weakness as determined in nursing assistant performance reviews and may address the special needs of residents as determined by the nursing home facility staff.
Costs associated with this training may not be reimbursed from additional Medicaid funding through interim rate adjustments.
History.—ss. 2, 3, ch. 82-163; ss. 29, 79, 82, 83, ch. 83-181; s. 1, ch. 86-253; s. 8, ch. 89-294; s. 61, ch. 92-136; s. 30, ch. 93-177; ss. 28, 49, ch. 93-217; s. 49, ch. 94-218; s. 1054, ch. 95-148; s. 38, ch. 95-228; s. 127, ch. 95-418; s. 10, ch. 96-268; s. 24, ch. 98-166; s. 3, ch. 98-248; s. 120, ch. 99-8; s. 206, ch. 99-397; s. 95, ch. 2000-318; s. 29, ch. 2001-45; s. 5, ch. 2004-298.
400.215 Personnel screening requirement.—
(1) The agency shall require level 2 background screening for personnel as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809.
(2) The agency shall, as allowable, reimburse nursing facilities for the cost of conducting background screening as required by this section. This reimbursement is not subject to any rate ceilings or payment targets in the Medicaid Reimbursement plan.
History.—s. 2, ch. 98-248; s. 16, ch. 99-394; s. 96, ch. 2000-318; s. 72, ch. 2000-349; s. 10, ch. 2004-267; s. 28, ch. 2006-197; s. 6, ch. 2010-114.
400.23 Rules; evaluation and deficiencies; licensure status.—
(1) It is the intent of the Legislature that rules published and enforced pursuant to this part and part II of chapter 408 shall include criteria by which a reasonable and consistent quality of resident care may be ensured and the results of such resident care can be demonstrated and by which safe and sanitary nursing homes can be provided. It is further intended that reasonable efforts be made to accommodate the needs and preferences of residents to enhance the quality of life in a nursing home. In addition, efforts shall be made to minimize the paperwork associated with the reporting and documentation requirements of these rules.
(2) Pursuant to the intention of the Legislature, the agency, in consultation with the Department of Health and the Department of Elderly Affairs, shall adopt and enforce rules to implement this part and part II of chapter 408, which shall include reasonable and fair criteria in relation to:
(a) The location of the facility and housing conditions that will ensure the health, safety, and comfort of residents, including an adequate call system. In making such rules, the agency shall be guided by criteria recommended by nationally recognized reputable professional groups and associations with knowledge of such subject matters. The agency shall update or revise such criteria as the need arises. The agency may require alterations to a building if it determines that an existing condition constitutes a distinct hazard to life, health, or safety. In performing any inspections of facilities authorized by this part or part II of chapter 408, the agency may enforce the special-occupancy provisions of the Florida Building Code and the Florida Fire Prevention Code which apply to nursing homes. Residents or their representatives shall be able to request a change in the placement of the bed in their room, provided that at admission they are presented with a room that meets requirements of the Florida Building Code. The location of a bed may be changed if the requested placement does not infringe on the resident’s roommate or interfere with the resident’s care or safety as determined by the care planning team in accordance with facility policies and procedures. In addition, the bed placement may not be used as a restraint. Each facility shall maintain a log of resident rooms with beds that are not in strict compliance with the Florida Building Code in order for such log to be used by surveyors and nurse monitors during inspections and visits. A resident or resident representative who requests that a bed be moved shall sign a statement indicating that he or she understands the room will not be in compliance with the Florida Building Code, but they would prefer to exercise their right to self-determination. The statement must be retained as part of the resident’s care plan. Any facility that offers this option must submit a letter signed by the nursing home administrator of record to the agency notifying it of this practice with a copy of the policies and procedures of the facility. The agency is directed to provide assistance to the Florida Building Commission in updating the construction standards of the code relative to nursing homes.
(b) The number and qualifications of all personnel, including management, medical, nursing, and other professional personnel, and nursing assistants, orderlies, and support personnel, having responsibility for any part of the care given residents.
(c) All sanitary conditions within the facility and its surroundings, including water supply, sewage disposal, food handling, and general hygiene which will ensure the health and comfort of residents.
(d) The equipment essential to the health and welfare of the residents.
(e) A uniform accounting system.
(f) The care, treatment, and maintenance of residents and measurement of the quality and adequacy thereof, based on rules developed under this chapter and the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health-Related Programs), Subtitle C (Nursing Home Reform), as amended.
(g) The preparation and annual update of a comprehensive emergency management plan. The agency shall adopt rules establishing minimum criteria for the plan after consultation with the Division of Emergency Management. At a minimum, the rules must provide for plan components that address emergency evacuation transportation; adequate sheltering arrangements; postdisaster activities, including emergency power, food, and water; postdisaster transportation; supplies; staffing; emergency equipment; individual identification of residents and transfer of records; and responding to family inquiries. The comprehensive emergency management plan is subject to review and approval by the local emergency management agency. During its review, the local emergency management agency shall ensure that the following agencies, at a minimum, are given the opportunity to review the plan: the Department of Elderly Affairs, the Department of Health, the Agency for Health Care Administration, and the Division of Emergency Management. Also, appropriate volunteer organizations must be given the opportunity to review the plan. The local emergency management agency shall complete its review within 60 days and either approve the plan or advise the facility of necessary revisions.
(h) The availability, distribution, and posting of reports and records pursuant to s. 400.191 and the Gold Seal Program pursuant to s. 400.235.
(3)(a)1. The agency shall adopt rules providing minimum staffing requirements for nursing home facilities. These requirements must include, for each facility:
a. A minimum weekly average of certified nursing assistant and licensed nursing staffing combined of 3.6 hours of direct care per resident per day. As used in this sub-subparagraph, a week is defined as Sunday through Saturday.
b. A minimum certified nursing assistant staffing of 2.5 hours of direct care per resident per day. A facility may not staff below one certified nursing assistant per 20 residents.
c. A minimum licensed nursing staffing of 1.0 hour of direct care per resident per day. A facility may not staff below one licensed nurse per 40 residents.
2. Nursing assistants employed under s. 400.211(2) may be included in computing the staffing ratio for certified nursing assistants if their job responsibilities include only nursing-assistant-related duties.
3. Each nursing home facility must document compliance with staffing standards as required under this paragraph and post daily the names of staff on duty for the benefit of facility residents and the public.
4. The agency shall recognize the use of licensed nurses for compliance with minimum staffing requirements for certified nursing assistants if the nursing home facility otherwise meets the minimum staffing requirements for licensed nurses and the licensed nurses are performing the duties of a certified nursing assistant. Unless otherwise approved by the agency, licensed nurses counted toward the minimum staffing requirements for certified nursing assistants must exclusively perform the duties of a certified nursing assistant for the entire shift and not also be counted toward the minimum staffing requirements for licensed nurses. If the agency approved a facility’s request to use a licensed nurse to perform both licensed nursing and certified nursing assistant duties, the facility must allocate the amount of staff time specifically spent on certified nursing assistant duties for the purpose of documenting compliance with minimum staffing requirements for certified and licensed nursing staff. The hours of a licensed nurse with dual job responsibilities may not be counted twice.
(b) Nonnursing staff providing eating assistance to residents shall not count toward compliance with minimum staffing standards.
(c) Licensed practical nurses licensed under chapter 464 who are providing nursing services in nursing home facilities under this part may supervise the activities of other licensed practical nurses, certified nursing assistants, and other unlicensed personnel providing services in such facilities in accordance with rules adopted by the Board of Nursing.
(4) Rules developed pursuant to this section shall not restrict the use of shared staffing and shared programming in facilities which are part of retirement communities that provide multiple levels of care and otherwise meet the requirement of law or rule.
(5) The agency, in collaboration with the Division of Children’s Medical Services of the Department of Health, must adopt rules for:
(a) Minimum standards of care for persons under 21 years of age who reside in nursing home facilities. A facility may be exempted from these standards for specific persons between 18 and 21 years of age, if the person’s physician agrees that minimum standards of care based on age are not necessary.
(b) Minimum staffing requirements for persons under 21 years of age who reside in nursing home facilities, which apply in lieu of the requirements contained in subsection (3).
1. For persons under 21 years of age who require skilled care:
a. A minimum combined average of 3.9 hours of direct care per resident per day must be provided by licensed nurses, respiratory therapists, respiratory care practitioners, and certified nursing assistants.
b. A minimum licensed nursing staffing of 1.0 hour of direct care per resident per day must be provided.
c. No more than 1.5 hours of certified nursing assistant care per resident per day may be counted in determining the minimum direct care hours required.
d. One registered nurse must be on duty on the site 24 hours per day on the unit where children reside.
2. For persons under 21 years of age who are medically fragile:
a. A minimum combined average of 5.0 hours of direct care per resident per day must be provided by licensed nurses, respiratory therapists, respiratory care practitioners, and certified nursing assistants.
b. A minimum licensed nursing staffing of 1.7 hours of direct care per resident per day must be provided.
c. No more than 1.5 hours of certified nursing assistant care per resident per day may be counted in determining the minimum direct care hours required.
d. One registered nurse must be on duty on the site 24 hours per day on the unit where children reside.
(6) Prior to conducting a survey of the facility, the survey team shall obtain a copy of the local long-term care ombudsman council report on the facility. Problems noted in the report shall be incorporated into and followed up through the agency’s inspection process. This procedure does not preclude the local long-term care ombudsman council from requesting the agency to conduct a followup visit to the facility.
(7) The agency shall, at least every 15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules adopted under this part as a basis for assigning a licensure status to that facility. The agency shall base its evaluation on the most recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations, and inspections. In addition to license categories authorized under part II of chapter 408, the agency shall assign a licensure status of standard or conditional to each nursing home.
(a) A standard licensure status means that a facility has no class I or class II deficiencies and has corrected all class III deficiencies within the time established by the agency.
(b) A conditional licensure status means that a facility, due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part or with rules adopted by the agency. If the facility has no class I, class II, or class III deficiencies at the time of the followup survey, a standard licensure status may be assigned.
(c) In evaluating the overall quality of care and services and determining whether the facility will receive a conditional or standard license, the agency shall consider the needs and limitations of residents in the facility and the results of interviews and surveys of a representative sampling of residents, families of residents, ombudsman council members in the planning and service area in which the facility is located, guardians of residents, and staff of the nursing home facility.
(d) The current licensure status of each facility must be indicated in bold print on the face of the license. A list of the deficiencies of the facility shall be posted in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted to that facility. Licensees receiving a conditional licensure status for a facility shall prepare, within 10 working days after receiving notice of deficiencies, a plan for correction of all deficiencies and shall submit the plan to the agency for approval.
(e) The agency shall adopt rules that:
1. Establish uniform procedures for the evaluation of facilities.
2. Provide criteria in the areas referenced in paragraph (c).
3. Address other areas necessary for carrying out the intent of this section.
(8) The agency shall adopt rules pursuant to this part and part II of chapter 408 to provide that, when the criteria established under subsection (2) are not met, such deficiencies shall be classified according to the nature and the scope of the deficiency. The scope shall be cited as isolated, patterned, or widespread. An isolated deficiency is a deficiency affecting one or a very limited number of residents, or involving one or a very limited number of staff, or a situation that occurred only occasionally or in a very limited number of locations. A patterned deficiency is a deficiency where more than a very limited number of residents are affected, or more than a very limited number of staff are involved, or the situation has occurred in several locations, or the same resident or residents have been affected by repeated occurrences of the same deficient practice but the effect of the deficient practice is not found to be pervasive throughout the facility. A widespread deficiency is a deficiency in which the problems causing the deficiency are pervasive in the facility or represent systemic failure that has affected or has the potential to affect a large portion of the facility’s residents. The agency shall indicate the classification on the face of the notice of deficiencies as follows:
(a) A class I deficiency is a deficiency that the agency determines presents a situation in which immediate corrective action is necessary because the facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility. The condition or practice constituting a class I violation shall be abated or eliminated immediately, unless a fixed period of time, as determined by the agency, is required for correction. A class I deficiency is subject to a civil penalty of $10,000 for an isolated deficiency, $12,500 for a patterned deficiency, and $15,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. A fine must be levied notwithstanding the correction of the deficiency.
(b) A class II deficiency is a deficiency that the agency determines has compromised the resident’s ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. A fine shall be levied notwithstanding the correction of the deficiency.
(c) A class III deficiency is a deficiency that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise the resident’s ability to maintain or reach his or her highest practical physical, mental, or psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class III deficiency is subject to a civil penalty of $1,000 for an isolated deficiency, $2,000 for a patterned deficiency, and $3,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. A citation for a class III deficiency must specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, a civil penalty may not be imposed.
(d) A class IV deficiency is a deficiency that the agency determines has the potential for causing no more than a minor negative impact on the resident. If the class IV deficiency is isolated, no plan of correction is required.
(9) Civil penalties paid by any licensee under subsection (8) shall be deposited in the Health Care Trust Fund and expended as provided in s. 400.063.
(10) Agency records, reports, ranking systems, Internet information, and publications must be promptly updated to reflect the most current agency actions.
History.—s. 22, ch. 69-309; ss. 19, 35, ch. 69-106; s. 19, ch. 70-361; s. 3, ch. 76-168; s. 7, ch. 76-201; s. 2, ch. 76-252; s. 2, ch. 77-188; s. 13, ch. 77-401; s. 1, ch. 77-457; s. 1, ch. 78-393; ss. 8, 9, ch. 79-268; ss. 3, 12, ch. 80-198; ss. 1, 2, ch. 80-211; s. 251, ch. 81-259; ss. 2, 3, ch. 81-318; ss. 30, 79, 83, ch. 83-181; s. 2, ch. 86-253; s. 1, ch. 90-125; ss. 9, 77, ch. 91-282; s. 30, ch. 93-177; s. 25, ch. 93-211; ss. 29, 49, ch. 93-217; s. 42, ch. 98-89; s. 121, ch. 99-8; s. 14, ch. 99-332; s. 17, ch. 99-394; s. 29, ch. 2000-141; s. 97, ch. 2000-318; s. 141, ch. 2000-349; s. 6, ch. 2000-350; s. 61, ch. 2000-367; ss. 30, 54, ch. 2001-45; s. 34, ch. 2001-186; s. 3, ch. 2001-372; s. 39, ch. 2003-1; s. 2, ch. 2003-405; s. 1, ch. 2004-270; s. 4, ch. 2004-298; s. 2, ch. 2005-60; s. 2, ch. 2005-147; s. 1, ch. 2005-234; s. 4, ch. 2006-28; s. 72, ch. 2007-230; s. 44, ch. 2009-223; s. 3, ch. 2010-156; s. 1, ch. 2011-61; s. 275, ch. 2011-142; s. 10, ch. 2012-160.
400.232 Review and approval of plans; fees and costs.—The design, construction, erection, alteration, modification, repair, and demolition of all public and private health care facilities are governed by the Florida Building Code and the Florida Fire Prevention Code under ss. 553.73 and 633.022. In addition to the requirements of ss. 553.79 and 553.80, the agency shall review the facility plans and survey the construction of facilities licensed under this chapter.
(1) The agency shall approve or disapprove the plans and specifications within 60 days after receipt of the final plans and specifications. The agency may be granted one 15-day extension for the review period, if the director of the agency so approves. If the agency fails to act within the specified time, it shall be deemed to have approved the plans and specifications. When the agency disapproves plans and specifications, it shall set forth in writing the reasons for disapproval. Conferences and consultations may be provided as necessary.
(2) The agency is authorized to charge an initial fee of $2,000 for review of plans and construction on all projects, no part of which is refundable. The agency may also collect a fee, not to exceed 1 percent of the estimated construction cost or the actual cost of review, whichever is less, for the portion of the review which encompasses initial review through the initial revised construction document review. The agency is further authorized to collect its actual costs on all subsequent portions of the review and construction inspections. Initial fee payment shall accompany the initial submission of plans and specifications. Any subsequent payment that is due is payable upon receipt of the invoice from the agency. Notwithstanding any other provisions of law to the contrary, all money received by the agency pursuant to the provisions of this section shall be deemed to be trust funds, to be held and applied solely for the operations required under this section.
History.—s. 22, ch. 69-309; ss. 19, 35, ch. 69-106; s. 19, ch. 70-361; s. 3, ch. 76-168; s. 7, ch. 76-201; s. 2, ch. 77-188; s. 1, ch. 77-457; ss. 8, 9, ch. 79-268; ss. 2, 3, ch. 81-318; ss. 30, 79, 83, ch. 83-181; s. 1, ch. 90-125; ss. 9, 77, ch. 91-282; s. 30, ch. 93-177; ss. 29, 49, ch. 93-217; s. 17, ch. 99-394; s. 30, ch. 2000-141; s. 34, ch. 2001-186; s. 3, ch. 2001-372.
Note.—Former s. 400.23(11), (12).
400.235 Nursing home quality and licensure status; Gold Seal Program.—
(1) To protect the health and welfare of persons receiving care in nursing facilities, it is the intent of the Legislature to develop a regulatory framework that promotes the stability of the industry and facilitates the physical, social, and emotional well-being of nursing facility residents.
(2) The Legislature intends to develop an award and recognition program for nursing facilities that demonstrate excellence in long-term care over a sustained period. This program shall be known as the Gold Seal Program.
(3)(a) The Gold Seal Program shall be developed and implemented by the Governor’s Panel on Excellence in Long-Term Care which shall operate under the authority of the Executive Office of the Governor. The panel shall be composed of three persons appointed by the Governor, to include a consumer advocate for senior citizens and two persons with expertise in the fields of quality management, service delivery excellence, or public sector accountability; three persons appointed by the Secretary of Elderly Affairs, to include an active member of a nursing facility family and resident care council and a member of the University Consortium on Aging; the State Long-Term Care Ombudsman; one person appointed by the Florida Life Care Residents Association; one person appointed by the State Surgeon General; two persons appointed by the Secretary of Health Care Administration; one person appointed by the Florida Association of Homes for the Aging; and one person appointed by the Florida Health Care Association. Vacancies on the panel shall be filled in the same manner as the original appointments.
(b) Members of the Governor’s Panel on Excellence in Long-Term Care shall be prohibited from having any ownership interest in a nursing facility. Any member of the panel who is employed by a nursing facility in any capacity shall be prohibited from participating in reviewing or voting on recommendations involving the facility by which the member is employed or any facility under common ownership with that facility.
(c) Recommendations to the panel for designation of a nursing facility as a Gold Seal facility may be received by the panel after January 1, 2000. The activities of the panel shall be supported by staff of the Department of Elderly Affairs and the Agency for Health Care Administration.
(4) The panel shall consider the quality of care provided to residents when evaluating a facility for the Gold Seal Program. The panel shall determine the procedure or procedures for measuring the quality of care.
(5) Facilities must meet the following additional criteria for recognition as a Gold Seal Program facility:
(a) Had no class I or class II deficiencies within the 30 months preceding application for the program.
(b) Evidence financial soundness and stability according to standards adopted by the agency in administrative rule. Such standards must include, but not be limited to, criteria for the use of financial statements that are prepared in accordance with generally accepted accounting principles and that are reviewed or audited by certified public accountants. A nursing home that is part of the same corporate entity as a continuing care facility licensed under chapter 651 which meets the minimum liquid reserve requirements specified in s. 651.035 and is accredited by a recognized accrediting organization under s. 651.028 and rules of the Office of Insurance Regulation satisfies this requirement as long as the accreditation is not provisional. Facilities operated by a federal or state agency are deemed to be financially stable for purposes of applying for the Gold Seal.
(c) Participate in a consumer satisfaction process, and demonstrate that information is elicited from residents, family members, and guardians about satisfaction with the nursing facility, its environment, the services and care provided, the staff’s skills and interactions with residents, attention to residents’ needs, and the facility’s efforts to act on information gathered from the consumer satisfaction measures.
(d) Evidence the involvement of families and members of the community in the facility on a regular basis.
(e) Have a stable workforce, as described in s. 400.141, as evidenced by a relatively low rate of turnover among certified nursing assistants and licensed nurses within the 30 months preceding application for the Gold Seal Program, and demonstrate a continuing effort to maintain a stable workforce and to reduce turnover of licensed nurses and certified nursing assistants.
(f) Evidence an outstanding record regarding the number and types of substantiated complaints reported to the State Long-Term Care Ombudsman Council within the 30 months preceding application for the program.
(g) Provide targeted inservice training provided to meet training needs identified by internal or external quality assurance efforts.
A facility assigned a conditional licensure status may not qualify for consideration for the Gold Seal Program until after it has operated for 30 months with no class I or class II deficiencies and has completed a regularly scheduled relicensure survey.
(6) The agency, nursing facility industry organizations, consumers, State Long-Term Care Ombudsman Council, and members of the community may recommend to the Governor facilities that meet the established criteria for consideration for and award of the Gold Seal. The panel shall review nominees and make a recommendation to the Governor for final approval and award. The decision of the Governor is final and is not subject to appeal.
(7) A facility must be licensed and operating for 30 months before it is eligible to apply for the Gold Seal Program. The agency shall establish by rule the frequency of review for designation as a Gold Seal Program facility and under what circumstances a facility may be denied the privilege of using this designation. The designation of a facility as a Gold Seal Program facility is not transferable to another license, except when an existing facility is being relicensed in the name of an entity related to the current licenseholder by common ownership or control, and there will be no change in the management, operation, or programs at the facility as a result of the relicensure.
(8)(a) Facilities awarded the Gold Seal may use the designation in their advertising and marketing.
(b) Upon approval by the United States Department of Health and Human Services, the agency shall adopt a revised schedule of survey and relicensure visits for Gold Seal Program facilities. Gold Seal Program facilities may be surveyed for certification and relicensure every 2 years, so long as they maintain the standards associated with retaining the Gold Seal.
(9) The agency may adopt rules as necessary to administer this section.
History.—s. 18, ch. 99-394; s. 12, ch. 2000-305; s. 7, ch. 2000-350; ss. 31, 58, ch. 2001-45; s. 17, ch. 2001-377; s. 24, ch. 2003-57; s. 1, ch. 2003-120; s. 6, ch. 2004-298; s. 49, ch. 2008-6.
400.241 Prohibited acts; penalties for violations.—
(1) It is unlawful for any person, long-term care facility, or other entity to willfully interfere with the unannounced inspections mandated by s. 400.19(3) or part II of chapter 408. Alerting or advising a facility of the actual or approximate date of such inspection shall be a per se violation of this subsection.
(2) A violation of any provision of this part or of any minimum standard, rule, or regulation adopted pursuant thereto constitutes a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Each day of a continuing violation is a separate offense.
History.—s. 11, ch. 70-361; s. 347, ch. 71-136; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 2, 3, ch. 81-318; ss. 31, 79, 83, ch. 83-181; s. 30, ch. 93-177; s. 49, ch. 93-217; s. 19, ch. 99-394; s. 73, ch. 2007-230.
400.25 Educational program authorized.—The agency may conduct a clinic or seminar at such times and places as shall be convenient for the greatest number at which information may be offered in the general field of health education, management, and other subjects that will increase the knowledge and efficiency of applicants or licensees under this part. The board must approve the educational content of such clinic or seminar if it is intended to satisfy the educational requirements of the board.
History.—s. 24, ch. 69-309; ss. 19, 35, ch. 69-106; s. 21, ch. 70-361; s. 3, ch. 76-168; s. 243, ch. 77-147; s. 1, ch. 77-457; s. 252, ch. 81-259; ss. 2, 3, ch. 81-318; ss. 79, 83, ch. 83-181; s. 30, ch. 93-177; ss. 30, 49, ch. 93-217.
400.275 Agency duties.—
(1) The agency may not assign an individual to be a member of a survey team for purposes of a survey, evaluation, or consultation visit at a nursing home facility in which the surveyor was an employee within the preceding 2 years.
(2) The agency shall semiannually provide for joint training of nursing home surveyors and staff of facilities licensed under this part on at least one of the 10 federal citations that were most frequently issued against nursing facilities in this state during the previous calendar year.
(3) Each member of a nursing home survey team who is a health professional licensed under part I of chapter 464, part X of chapter 468, or chapter 491 shall earn not less than 50 percent of required continuing education credits in geriatric care. Each member of a nursing home survey team who is a health professional licensed under chapter 465 shall earn not less than 30 percent of required continuing education credits in geriatric care.
(4) The agency must ensure that when a deficiency is related to substandard quality of care, a physician with geriatric experience licensed under chapter 458 or chapter 459 or a registered nurse with geriatric experience licensed under chapter 464 participates in the agency’s informal dispute resolution process.
History.—s. 32, ch. 2001-45; s. 11, ch. 2012-160.
400.33 Legislative intent; community-based care for the elderly.—It is the intent of the Legislature to encourage the development of programs for community-based care for the elderly as an alternative to institutionalization. The Legislature finds and declares that routine health care provided on an outpatient basis is one such program, the availability of which would fill an unmet need, improve the quality and quantity of health care available to elderly persons while minimizing the cost of such care, and reduce the incidence of unnecessary or premature institutionalization of elderly persons. The purpose of this section and s. 400.332 is to encourage the development of geriatric outpatient nurse clinics to make such services available. The Legislature intends that existing and available nursing facility treatment rooms be used for geriatric outpatient nurse clinics in order that the cost of such programs be kept low.
History.—s. 1, ch. 77-401; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; s. 30, ch. 93-177; ss. 33, 49, ch. 93-217.
400.332 Funds received not revenues for purpose of Medicaid program.—Any funds received by a nursing home in connection with its participation in the geriatric outpatient nurse clinic program shall not be considered as revenues for purposes of cost reports under the Medicaid program.
History.—s. 4, ch. 77-401; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; s. 59, ch. 91-282; s. 30, ch. 93-177; s. 49, ch. 93-217.
400.334 Activity relating to unions by nursing home employees.—
(1) Participation by an employee of a nursing home in any activity that assists, promotes, deters, or discourages union organizing shall not be allowed during any time the employee is counted in staffing calculations for minimum staffing standards.
(2) Salaries paid by any health care provider to an employee for any activity that assists, promotes, deters, or discourages union organizing shall not be an allowable cost for Medicaid cost reporting purposes.
(3) Any expense, including, but not limited to, legal and consulting fees and salaries of supervisors and employees, incurred for activities directly relating to influencing employees with respect to unionization shall not be an allowable cost for Medicaid cost reporting purposes.
(4) This section does not apply to any activity performed, or any expense incurred, in connection with:
(a) Addressing a grievance or negotiating or administering a collective bargaining agreement;
(b) Performing an activity required by federal or state law or by a collective bargaining agreement; or
(c) Keeping employees informed of issues and keeping lines of communication open between employees and employers as a part of normal personnel management,
provided such activities or expenses are not directly related to influencing employees with respect to unionization.
History.—s. 1, ch. 2002-231.
PART III
HOME HEALTH AGENCIES400.461 Short title; purpose.
400.462 Definitions.
400.464 Home health agencies to be licensed; expiration of license; exemptions; unlawful acts; penalties.
400.471 Application for license; fee.
400.474 Administrative penalties.
400.476 Staffing requirements; notifications; limitations on staffing services.
400.4785 Patients with Alzheimer’s disease or other related disorders; staff training requirements; certain disclosures.
400.484 Right of inspection; deficiencies; fines.
400.487 Home health service agreements; physician’s, physician assistant’s, and advanced registered nurse practitioner’s treatment orders; patient assessment; establishment and review of plan of care; provision of services; orders not to resuscitate.
400.488 Assistance with self-administration of medication.
400.491 Clinical records.
400.492 Provision of services during an emergency.
400.494 Information about patients confidential.
400.497 Rules establishing minimum standards.
400.506 Licensure of nurse registries; requirements; penalties.
400.509 Registration of particular service providers exempt from licensure; certificate of registration; regulation of registrants.
400.512 Screening of home health agency personnel; nurse registry personnel and contractors; and companions and homemakers.
400.518 Prohibited referrals to home health agencies.
400.5185 Review and modification of prior authorization.
400.461 Short title; purpose.—
(1) This part, consisting of ss. 400.461-400.518, may be cited as the “Home Health Services Act.”
(2) The purpose of this part is to provide for the licensure of every home health agency and nurse registry and to provide for the development, establishment, and enforcement of basic standards that will ensure the safe and adequate care of persons receiving health services in their own homes.
History.—ss. 36, 37, ch. 75-233; s. 2, ch. 81-318; ss. 61, 79, 83, ch. 83-181; s. 1, ch. 88-219; s. 1, ch. 90-319; ss. 1, 23, ch. 93-214; s. 47, ch. 98-171; s. 1, ch. 2005-243.
400.462 Definitions.—As used in this part, the term:
(1) “Administrator” means a direct employee, as defined in subsection (9), who is a licensed physician, physician assistant, or registered nurse licensed to practice in this state or an individual having at least 1 year of supervisory or administrative experience in home health care or in a facility licensed under chapter 395, under part II of this chapter, or under part I of chapter 429.
(2) “Admission” means a decision by the home health agency, during or after an evaluation visit to the patient’s home, that there is reasonable expectation that the patient’s medical, nursing, and social needs for skilled care can be adequately met by the agency in the patient’s place of residence. Admission includes completion of an agreement with the patient or the patient’s legal representative to provide home health services as required in s. 400.487(1).
(3) “Advanced registered nurse practitioner” means a person licensed in this state to practice professional nursing and certified in advanced or specialized nursing practice, as defined in s. 464.003.
(4) “Agency” means the Agency for Health Care Administration.
(5) “Certified nursing assistant” means any person who has been issued a certificate under part II of chapter 464.
(6) “Client” means an elderly, handicapped, or convalescent individual who receives companion services or homemaker services in the individual’s home or place of residence.
(7) “Companion” or “sitter” means a person who spends time with or cares for an elderly, handicapped, or convalescent individual and accompanies such individual on trips and outings and may prepare and serve meals to such individual. A companion may not provide hands-on personal care to a client.
(8) “Department” means the Department of Children and Family Services.
(9) “Direct employee” means an employee for whom one of the following entities pays withholding taxes: a home health agency; a management company that has a contract to manage the home health agency on a day-to-day basis; or an employee leasing company that has a contract with the home health agency to handle the payroll and payroll taxes for the home health agency.
(10) “Director of nursing” means a registered nurse who is a direct employee, as defined in subsection (9), of the agency and who is a graduate of an approved school of nursing and is licensed in this state; who has at least 1 year of supervisory experience as a registered nurse; and who is responsible for overseeing the professional nursing and home health aid delivery of services of the agency.
(11) “Fair market value” means the value in arms length transactions, consistent with the price that an asset would bring as the result of bona fide bargaining between well-informed buyers and sellers who are not otherwise in a position to generate business for the other party, or the compensation that would be included in a service agreement as the result of bona fide bargaining between well-informed parties to the agreement who are not otherwise in a position to generate business for the other party, on the date of acquisition of the asset or at the time of the service agreement.
(12) “Home health agency” means an organization that provides home health services and staffing services.
(13) “Home health agency personnel” means persons who are employed by or under contract with a home health agency and enter the home or place of residence of patients at any time in the course of their employment or contract.
(14) “Home health services” means health and medical services and medical supplies furnished by an organization to an individual in the individual’s home or place of residence. The term includes organizations that provide one or more of the following:
(a) Nursing care.
(b) Physical, occupational, respiratory, or speech therapy.
(c) Home health aide services.
(d) Dietetics and nutrition practice and nutrition counseling.
(e) Medical supplies, restricted to drugs and biologicals prescribed by a physician.
(15) “Home health aide” means a person who is trained or qualified, as provided by rule, and who provides hands-on personal care, performs simple procedures as an extension of therapy or nursing services, assists in ambulation or exercises, or assists in administering medications as permitted in rule and for which the person has received training established by the agency under s. 400.497(1).
(16) “Homemaker” means a person who performs household chores that include housekeeping, meal planning and preparation, shopping assistance, and routine household activities for an elderly, handicapped, or convalescent individual. A homemaker may not provide hands-on personal care to a client.
(17) “Home infusion therapy provider” means an organization that employs, contracts with, or refers a licensed professional who has received advanced training and experience in intravenous infusion therapy and who administers infusion therapy to a patient in the patient’s home or place of residence.
(18) “Home infusion therapy” means the administration of intravenous pharmacological or nutritional products to a patient in his or her home.
(19) “Immediate family member” means a husband or wife; a birth or adoptive parent, child, or sibling; a stepparent, stepchild, stepbrother, or stepsister; a father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law; a grandparent or grandchild; or a spouse of a grandparent or grandchild.
(20) “Medical director” means a physician who is a volunteer with, or who receives remuneration from, a home health agency.
(21) “Nurse registry” means any person that procures, offers, promises, or attempts to secure health-care-related contracts for registered nurses, licensed practical nurses, certified nursing assistants, home health aides, companions, or homemakers, who are compensated by fees as independent contractors, including, but not limited to, contracts for the provision of services to patients and contracts to provide private duty or staffing services to health care facilities licensed under chapter 395, this chapter, or chapter 429 or other business entities.
(22) “Organization” means a corporation, government or governmental subdivision or agency, partnership or association, or any other legal or commercial entity, any of which involve more than one health care professional discipline; a health care professional and a home health aide or certified nursing assistant; more than one home health aide; more than one certified nursing assistant; or a home health aide and a certified nursing assistant. The term does not include an entity that provides services using only volunteers or only individuals related by blood or marriage to the patient or client.
(23) “Patient” means any person who receives home health services in his or her home or place of residence.
(24) “Personal care” means assistance to a patient in the activities of daily living, such as dressing, bathing, eating, or personal hygiene, and assistance in physical transfer, ambulation, and in administering medications as permitted by rule.
(25) “Physician” means a person licensed under chapter 458, chapter 459, chapter 460, or chapter 461.
(26) “Physician assistant” means a person who is a graduate of an approved program or its equivalent, or meets standards approved by the boards, and is licensed to perform medical services delegated by the supervising physician, as defined in s. 458.347 or s. 459.022.
(27) “Remuneration” means any payment or other benefit made directly or indirectly, overtly or covertly, in cash or in kind. However, if the term is used in any provision of law relating to health care providers, the term does not apply to an item that has an individual value of up to $15, including, but not limited to, a plaque, a certificate, a trophy, or a novelty item that is intended solely for presentation or is customarily given away solely for promotional, recognition, or advertising purposes.
(28) “Skilled care” means nursing services or therapeutic services required by law to be delivered by a health care professional who is licensed under part I of chapter 464; part I, part III, or part V of chapter 468; or chapter 486 and who is employed by or under contract with a licensed home health agency or is referred by a licensed nurse registry.
(29) “Staffing services” means services provided to a health care facility, school, or other business entity on a temporary or school-year basis pursuant to a written contract by licensed health care personnel and by certified nursing assistants and home health aides who are employed by, or work under the auspices of, a licensed home health agency or who are registered with a licensed nurse registry.
History.—s. 38, ch. 75-233; s. 2, ch. 81-318; ss. 62, 79, 83, ch. 83-181; s. 12, ch. 85-167; s. 1, ch. 87-123; s. 2, ch. 88-219; s. 1, ch. 88-323; s. 1, ch. 90-101; s. 31, ch. 90-306; s. 2, ch. 90-319; s. 25, ch. 91-57; s. 28, ch. 91-263; ss. 2, 23, ch. 93-214; s. 781, ch. 95-148; s. 56, ch. 95-228; s. 126, ch. 99-8; s. 1, ch. 99-332; ss. 102, 156, ch. 2000-318; s. 77, ch. 2000-349; s. 2, ch. 2005-243; s. 60, ch. 2006-197; s. 1, ch. 2008-246; s. 41, ch. 2012-160.
400.464 Home health agencies to be licensed; expiration of license; exemptions; unlawful acts; penalties.—
(1) The requirements of part II of chapter 408 apply to the provision of services that require licensure pursuant to this part and part II of chapter 408 and entities licensed or registered by or applying for such licensure or registration from the Agency for Health Care Administration pursuant to this part. A license issued by the agency is required in order to operate a home health agency in this state.
(2) If the licensed home health agency operates related offices, each related office outside the county where the main office is located must be separately licensed. The counties where the related offices are operating must be specified on the license in the main office.
(3) A home infusion therapy provider must be licensed as a home health agency or nurse registry.
(4)(a) An organization that offers or advertises to the public any service for which licensure or registration is required under this part must include in the advertisement the license number or registration number issued to the organization by the agency. The agency shall assess a fine of not less than $100 to any licensee or registrant who fails to include the license or registration number when submitting the advertisement for publication, broadcast, or printing. The fine for a second or subsequent offense is $500. The holder of a license issued under this part may not advertise or indicate to the public that it holds a home health agency or nurse registry license other than the one it has been issued.
(b) The operation or maintenance of an unlicensed home health agency or the performance of any home health services in violation of this part is declared a nuisance, inimical to the public health, welfare, and safety. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the home health agency or the provision of home health services in violation of this part, until compliance with this part or the rules adopted under this part has been demonstrated to the satisfaction of the agency.
(c) A person who violates paragraph (a) is subject to an injunctive proceeding under s. 408.816. A violation of paragraph (a) or s. 408.812 is a deceptive and unfair trade practice and constitutes a violation of the Florida Deceptive and Unfair Trade Practices Act under part II of chapter 501.
(d) A person who violates the provisions of paragraph (a) commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Any person who commits a second or subsequent violation commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Each day of continuing violation constitutes a separate offense.
(e) Any person who owns, operates, or maintains an unlicensed home health agency and who, within 10 working days after receiving notification from the agency, fails to cease operation and apply for a license under this part commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Each day of continued operation is a separate offense.
(f) Any home health agency that fails to cease operation after agency notification may be fined $500 for each day of noncompliance.
(5) The following are exempt from the licensure requirements of this part:
(a) A home health agency operated by the Federal Government.
(b) Home health services provided by a state agency, either directly or through a contractor with:
1. The Department of Elderly Affairs.
2. The Department of Health, a community health center, or a rural health network that furnishes home visits for the purpose of providing environmental assessments, case management, health education, personal care services, family planning, or followup treatment, or for the purpose of monitoring and tracking disease.
3. Services provided to persons with developmental disabilities, as defined in s. 393.063.
4. Companion and sitter organizations that were registered under s. 400.509(1) on January 1, 1999, and were authorized to provide personal services under a developmental services provider certificate on January 1, 1999, may continue to provide such services to past, present, and future clients of the organization who need such services, notwithstanding the provisions of this act.
5. The Department of Children and Family Services.
(c) A health care professional, whether or not incorporated, who is licensed under chapter 457; chapter 458; chapter 459; part I of chapter 464; chapter 467; part I, part III, part V, or part X of chapter 468; chapter 480; chapter 486; chapter 490; or chapter 491; and who is acting alone within the scope of his or her professional license to provide care to patients in their homes.
(d) A home health aide or certified nursing assistant who is acting in his or her individual capacity, within the definitions and standards of his or her occupation, and who provides hands-on care to patients in their homes.
(e) An individual who acts alone, in his or her individual capacity, and who is not employed by or affiliated with a licensed home health agency or registered with a licensed nurse registry. This exemption does not entitle an individual to perform home health services without the required professional license.
(f) The delivery of instructional services in home dialysis and home dialysis supplies and equipment.
(g) The delivery of nursing home services for which the nursing home is licensed under part II of this chapter, to serve its residents in its facility.
(h) The delivery of assisted living facility services for which the assisted living facility is licensed under part I of chapter 429, to serve its residents in its facility.
(i) The delivery of hospice services for which the hospice is licensed under part IV of this chapter, to serve hospice patients admitted to its service.
(j) A hospital that provides services for which it is licensed under chapter 395.
(k) The delivery of community residential services for which the community residential home is licensed under chapter 419, to serve the residents in its facility.
(l) A not-for-profit, community-based agency that provides early intervention services to infants and toddlers.
(m) Certified rehabilitation agencies and comprehensive outpatient rehabilitation facilities that are certified under Title 18 of the Social Security Act.
(n) The delivery of adult family-care home services for which the adult family-care home is licensed under part II of chapter 429, to serve the residents in its facility.
History.—s. 39, ch. 75-233; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; s. 29, ch. 91-263; ss. 3, 23, ch. 93-214; s. 782, ch. 95-148; ss. 41, 129, ch. 95-418; s. 100, ch. 97-101; s. 2, ch. 99-332; s. 18, ch. 2000-153; s. 59, ch. 2000-256; ss. 17, 103, ch. 2000-318; s. 5, ch. 2000-338; s. 37, ch. 2001-62; s. 92, ch. 2004-267; s. 3, ch. 2005-243; s. 61, ch. 2006-197; s. 70, ch. 2006-227; s. 74, ch. 2007-230; s. 2, ch. 2008-246.
400.471 Application for license; fee.—
(1) Each applicant for licensure must comply with all provisions of this part and part II of chapter 408.
(2) In addition to the requirements of part II of chapter 408, the initial applicant must file with the application satisfactory proof that the home health agency is in compliance with this part and applicable rules, including:
(a) A listing of services to be provided, either directly by the applicant or through contractual arrangements with existing providers.
(b) The number and discipline of professional staff to be employed.
(c) Completion of questions concerning volume data on the renewal application as determined by rule.
(d) A business plan, signed by the applicant, which details the home health agency’s methods to obtain patients and its plan to recruit and maintain staff.
(e) Evidence of contingency funding equal to 1 month’s average operating expenses during the first year of operation.
(f) A balance sheet, income and expense statement, and statement of cash flows for the first 2 years of operation which provide evidence of having sufficient assets, credit, and projected revenues to cover liabilities and expenses. The applicant has demonstrated financial ability to operate if the applicant’s assets, credit, and projected revenues meet or exceed projected liabilities and expenses. An applicant may not project an operating margin of 15 percent or greater for any month in the first year of operation. All documents required under this paragraph must be prepared in accordance with generally accepted accounting principles and compiled and signed by a certified public accountant.
(g) All other ownership interests in health care entities for each controlling interest, as defined in part II of chapter 408.
(h) In the case of an application for initial licensure, documentation of accreditation, or an application for accreditation, from an accrediting organization that is recognized by the agency as having standards comparable to those required by this part and part II of chapter 408. Notwithstanding s. 408.806, an applicant that has applied for accreditation must provide proof of accreditation that is not conditional or provisional within 120 days after the date of the agency’s receipt of the application for licensure or the application shall be withdrawn from further consideration. Such accreditation must be maintained by the home health agency to maintain licensure. The agency shall accept, in lieu of its own periodic licensure survey, the submission of the survey of an accrediting organization that is recognized by the agency if the accreditation of the licensed home health agency is not provisional and if the licensed home health agency authorizes releases of, and the agency receives the report of, the accrediting organization.
(3) In addition to the requirements of s. 408.810, the home health agency must also obtain and maintain the following insurance coverage in an amount of not less than $250,000 per claim, and the home health agency must submit proof of coverage with an initial application for licensure and with each application for license renewal:
(a) Malpractice insurance as defined in s. 624.605(1)(k).
(b) Liability insurance as defined in s. 624.605(1)(b).
(4) The agency shall accept, in lieu of its own periodic licensure survey, submission of the survey of an accrediting organization that is recognized by the agency if the accreditation of the licensed home health agency is not provisional and if the licensed home health agency authorizes release of, and the agency receives the report of, the accrediting organization.
(5) In accordance with s. 408.805, an applicant or licensee shall pay a fee for each license application submitted under this part, part II of chapter 408, and applicable rules. The amount of the fee shall be established by rule and shall be set at an amount that is sufficient to cover the agency’s costs in carrying out its responsibilities under this part, but not to exceed $2,000 per biennium. However, state, county, or municipal governments applying for licenses under this part are exempt from the payment of license fees.
(6) The agency may not issue a license designated as certified to a home health agency that fails to satisfy the requirements of a Medicare certification survey from the agency.
(7) The agency may not issue an initial license to an applicant for a home health agency license if the applicant shares common controlling interests with another licensed home health agency that is located within 10 miles of the applicant and is in the same county. The agency must return the application and fees to the applicant.
(8) An application for a home health agency license may not be transferred to another home health agency or controlling interest before issuance of the license.
(9) A licensed home health agency that seeks to relocate to a different geographic service area not listed on its license must submit an initial application for a home health agency license for the new location.
(10) The agency may not issue a renewal license for a home health agency in any county having at least one licensed home health agency and that has more than one home health agency per 5,000 persons, as indicated by the most recent population estimates published by the Legislature’s Office of Economic and Demographic Research, if the applicant or any controlling interest has been administratively sanctioned by the agency during the 2 years prior to the submission of the licensure renewal application for one or more of the following acts:
(a) An intentional or negligent act that materially affects the health or safety of a client of the provider;
(b) Knowingly providing home health services in an unlicensed assisted living facility or unlicensed adult family-care home, unless the home health agency or employee reports the unlicensed facility or home to the agency within 72 hours after providing the services;
(c) Preparing or maintaining fraudulent patient records, such as, but not limited to, charting ahead, recording vital signs or symptoms which were not personally obtained or observed by the home health agency’s staff at the time indicated, borrowing patients or patient records from other home health agencies to pass a survey or inspection, or falsifying signatures;
(d) Failing to provide at least one service directly to a patient for a period of 60 days;
(e) Demonstrating a pattern of falsifying documents relating to the training of home health aides or certified nursing assistants or demonstrating a pattern of falsifying health statements for staff who provide direct care to patients. A pattern may be demonstrated by a showing of at least three fraudulent entries or documents;
(f) Demonstrating a pattern of billing any payor for services not provided. A pattern may be demonstrated by a showing of at least three billings for services not provided within a 12-month period;
(g) Demonstrating a pattern of failing to provide a service specified in the home health agency’s written agreement with a patient or the patient’s legal representative, or the plan of care for that patient, unless a reduction in service is mandated by Medicare, Medicaid, or a state program or as provided in s. 400.492(3). A pattern may be demonstrated by a showing of at least three incidents, regardless of the patient or service, in which the home health agency did not provide a service specified in a written agreement or plan of care during a 3-month period;
(h) Giving remuneration to a case manager, discharge planner, facility-based staff member, or third-party vendor who is involved in the discharge planning process of a facility licensed under chapter 395, chapter 429, or this chapter from whom the home health agency receives referrals or gives remuneration as prohibited in s. 400.474(6)(a);
(i) Giving cash, or its equivalent, to a Medicare or Medicaid beneficiary;
(j) Demonstrating a pattern of billing the Medicaid program for services to Medicaid recipients which are medically unnecessary as determined by a final order. A pattern may be demonstrated by a showing of at least two such medically unnecessary services within one Medicaid program integrity audit period;
(k) Providing services to residents in an assisted living facility for which the home health agency does not receive fair market value remuneration; or
(l) Providing staffing to an assisted living facility for which the home health agency does not receive fair market value remuneration.
1(11)(a) The agency may not issue an initial license to a home health agency under part II of chapter 408 or this part for the purpose of opening a new home health agency until July 1, 2010, in any county that has at least one actively licensed home health agency and a population of persons 65 years of age or older, as indicated in the most recent population estimates published by the Executive Office of the Governor, of fewer than 1,200 per home health agency. In such counties, for any application received by the agency prior to July 1, 2009, which has been deemed by the agency to be complete except for proof of accreditation, the agency may issue an initial ownership license only if the applicant has applied for accreditation before May 1, 2009, from an accrediting organization that is recognized by the agency.
(b) Effective October 1, 2009, the agency may not issue a change of ownership license to a home health agency under part II of chapter 408 or this part until July 1, 2010, in any county that has at least one actively licensed home health agency and a population of persons 65 years of age or older, as indicated in the most recent population estimates published by the Executive Office of the Governor, of fewer than 1,200 per home health agency. In such counties, for any application received by the agency prior to October 1, 2009, which has been deemed by the agency to be complete except for proof of accreditation, the agency may issue a change of ownership license only if the applicant has applied for accreditation before August 1, 2009, from an accrediting organization that is recognized by the agency.
History.—s. 41, ch. 75-233; s. 7, ch. 77-400; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; s. 45, ch. 87-92; s. 4, ch. 90-319; ss. 4, 23, ch. 93-214; s. 30, ch. 97-100; ss. 48, 71, ch. 98-171; s. 127, ch. 99-8; s. 218, ch. 99-13; s. 3, ch. 99-332; s. 19, ch. 2000-153; s. 2, ch. 2000-256; ss. 3, 157, ch. 2000-318; s. 78, ch. 2000-349; s. 25, ch. 2001-53; s. 2, ch. 2001-67; s. 148, ch. 2001-277; s. 420, ch. 2003-261; s. 47, ch. 2004-267; s. 4, ch. 2005-243; s. 75, ch. 2007-230; s. 3, ch. 2008-246; s. 5, ch. 2009-193; s. 5, ch. 2009-223.
1Note.—Created as new subsection (10) by s. 5, ch. 2009-193, and redesignated as subsection (11) by the editors. For a description of multiple acts in the same session affecting a statutory provision, see preface to the Florida Statutes, “Statutory Construction.” Substantially similar material was created as subsection (11) by s. 5, ch. 2009-223, and that version reads:
(11) The agency may not issue an initial or change of ownership license to a home health agency under this part for the purpose of opening a new home health agency until July 1, 2010, in any county that has at least one actively licensed home health agency and a population of persons 65 years of age or older, as indicated in the most recent population estimates published by the Executive Office of the Governor, of fewer than 1,200 per home health agency. In such counties, for any application received by the agency prior to July 1, 2009, which has been deemed by the agency to be complete except for proof of accreditation, the agency may issue an initial or a change of ownership license only if the applicant has applied for accreditation before May 1, 2009, from an accrediting organization that is recognized by the agency.
400.474 Administrative penalties.—
(1) The agency may deny, revoke, and suspend a license and impose an administrative fine in the manner provided in chapter 120.
(2) Any of the following actions by a home health agency or its employee is grounds for disciplinary action by the agency:
(a) Violation of this part, part II of chapter 408, or of applicable rules.
(b) An intentional, reckless, or negligent act that materially affects the health or safety of a patient.
(c) Knowingly providing home health services in an unlicensed assisted living facility or unlicensed adult family-care home, unless the home health agency or employee reports the unlicensed facility or home to the agency within 72 hours after providing the services.
(d) Preparing or maintaining fraudulent patient records, such as, but not limited to, charting ahead, recording vital signs or symptoms that were not personally obtained or observed by the home health agency’s staff at the time indicated, borrowing patients or patient records from other home health agencies to pass a survey or inspection, or falsifying signatures.
(e) Failing to provide at least one service directly to a patient for a period of 60 days.
(3) The agency shall impose a fine of $1,000 against a home health agency that demonstrates a pattern of falsifying:
(a) Documents of training for home health aides or certified nursing assistants; or
(b) Health statements for staff providing direct care to patients.
A pattern may be demonstrated by a showing of at least three fraudulent entries or documents. The fine shall be imposed for each fraudulent document or, if multiple staff members are included on one document, for each fraudulent entry on the document.
(4) The agency shall impose a fine of $5,000 against a home health agency that demonstrates a pattern of billing any payor for services not provided. A pattern may be demonstrated by a showing of at least three billings for services not provided within a 12-month period. The fine must be imposed for each incident that is falsely billed. The agency may also:
(a) Require payback of all funds;
(b) Revoke the license; or
(c) Issue a moratorium in accordance with s. 408.814.
(5) The agency shall impose a fine of $5,000 against a home health agency that demonstrates a pattern of failing to provide a service specified in the home health agency’s written agreement with a patient or the patient’s legal representative, or the plan of care for that patient, unless a reduction in service is mandated by Medicare, Medicaid, or a state program or as provided in s. 400.492(3). A pattern may be demonstrated by a showing of at least three incidences, regardless of the patient or service, where the home health agency did not provide a service specified in a written agreement or plan of care during a 3-month period. The agency shall impose the fine for each occurrence. The agency may also impose additional administrative fines under s. 400.484 for the direct or indirect harm to a patient, or deny, revoke, or suspend the license of the home health agency for a pattern of failing to provide a service specified in the home health agency’s written agreement with a patient or the plan of care for that patient.
(6) The agency may deny, revoke, or suspend the license of a home health agency and shall impose a fine of $5,000 against a home health agency that:
(a) Gives remuneration for staffing services to:
1. Another home health agency with which it has formal or informal patient-referral transactions or arrangements; or
2. A health services pool with which it has formal or informal patient-referral transactions or arrangements,
unless the home health agency has activated its comprehensive emergency management plan in accordance with s. 400.492. This paragraph does not apply to a Medicare-certified home health agency that provides fair market value remuneration for staffing services to a non-Medicare-certified home health agency that is part of a continuing care facility licensed under chapter 651 for providing services to its own residents if each resident receiving home health services pursuant to this arrangement attests in writing that he or she made a decision without influence from staff of the facility to select, from a list of Medicare-certified home health agencies provided by the facility, that Medicare-certified home health agency to provide the services.
(b) Provides services to residents in an assisted living facility for which the home health agency does not receive fair market value remuneration.
(c) Provides staffing to an assisted living facility for which the home health agency does not receive fair market value remuneration.
(d) Fails to provide the agency, upon request, with copies of all contracts with assisted living facilities which were executed within 5 years before the request.
(e) Gives remuneration to a case manager, discharge planner, facility-based staff member, or third-party vendor who is involved in the discharge planning process of a facility licensed under chapter 395, chapter 429, or this chapter from whom the home health agency receives referrals.
(f) Fails to submit to the agency, within 15 days after the end of each calendar quarter, a written report that includes the following data based on data as it existed on the last day of the quarter:
1. The number of insulin-dependent diabetic patients receiving insulin-injection services from the home health agency;
2. The number of patients receiving both home health services from the home health agency and hospice services;
3. The number of patients receiving home health services from that home health agency; and
4. The names and license numbers of nurses whose primary job responsibility is to provide home health services to patients and who received remuneration from the home health agency in excess of $25,000 during the calendar quarter.
(g) Gives cash, or its equivalent, to a Medicare or Medicaid beneficiary.
(h) Has more than one medical director contract in effect at one time or more than one medical director contract and one contract with a physician-specialist whose services are mandated for the home health agency in order to qualify to participate in a federal or state health care program at one time.
(i) Gives remuneration to a physician without a medical director contract being in effect. The contract must:
1. Be in writing and signed by both parties;
2. Provide for remuneration that is at fair market value for an hourly rate, which must be supported by invoices submitted by the medical director describing the work performed, the dates on which that work was performed, and the duration of that work; and
3. Be for a term of at least 1 year.
The hourly rate specified in the contract may not be increased during the term of the contract. The home health agency may not execute a subsequent contract with that physician which has an increased hourly rate and covers any portion of the term that was in the original contract.
(j) Gives remuneration to:
1. A physician, and the home health agency is in violation of paragraph (h) or paragraph (i);
2. A member of the physician’s office staff; or
3. An immediate family member of the physician,
if the home health agency has received a patient referral in the preceding 12 months from that physician or physician’s office staff.
(k) Fails to provide to the agency, upon request, copies of all contracts with a medical director which were executed within 5 years before the request.
(l) Demonstrates a pattern of billing the Medicaid program for services to Medicaid recipients which are medically unnecessary as determined by a final order. A pattern may be demonstrated by a showing of at least two such medically unnecessary services within one Medicaid program integrity audit period.
Nothing in paragraph (e) or paragraph (j) shall be interpreted as applying to or precluding any discount, compensation, waiver of payment, or payment practice permitted by 42 U.S.C. s. 1320a-7(b) or regulations adopted thereunder, including 42 C.F.R. s. 1001.952 or s. 1395nn or regulations adopted thereunder.
(7)(a) In addition to the requirements of s. 408.813, any person, partnership, or corporation that violates s. 408.812 or s. 408.813 and that previously operated a licensed home health agency or concurrently operates both a licensed home health agency and an unlicensed home health agency commits a felony of the third degree punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If any home health agency is found to be operating without a license and that home health agency has received any government reimbursement for services, the agency shall make a fraud referral to the appropriate government reimbursement program.
History.—s. 42, ch. 75-233; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 5, 23, ch. 93-214; s. 20, ch. 98-80; s. 4, ch. 99-332; s. 76, ch. 2007-230; s. 4, ch. 2008-246; s. 6, ch. 2009-223; s. 84, ch. 2010-5.
400.476 Staffing requirements; notifications; limitations on staffing services.—
(1) ADMINISTRATOR.—
(a) An administrator may manage only one home health agency, except that an administrator may manage up to five home health agencies if all five home health agencies have identical controlling interests as defined in s. 408.803 and are located within one agency geographic service area or within an immediately contiguous county. If the home health agency is licensed under this chapter and is part of a retirement community that provides multiple levels of care, an employee of the retirement community may administer the home health agency and up to a maximum of four entities licensed under this chapter or chapter 429 which all have identical controlling interests as defined in s. 408.803. An administrator shall designate, in writing, for each licensed entity, a qualified alternate administrator to serve during the administrator’s absence.
(b) An administrator of a home health agency who is a licensed physician, physician assistant, or registered nurse licensed to practice in this state may also be the director of nursing for a home health agency. An administrator may serve as a director of nursing for up to the number of entities authorized in subsection (2) only if there are 10 or fewer full-time equivalent employees and contracted personnel in each home health agency.
(2) DIRECTOR OF NURSING.—
(a) A director of nursing may be the director of nursing for:
1. Up to two licensed home health agencies if the agencies have identical controlling interests as defined in s. 408.803 and are located within one agency geographic service area or within an immediately contiguous county; or
2. Up to five licensed home health agencies if:
a. All of the home health agencies have identical controlling interests as defined in s. 408.803;
b. All of the home health agencies are located within one agency geographic service area or within an immediately contiguous county; and
c. Each home health agency has a registered nurse who meets the qualifications of a director of nursing and who has a written delegation from the director of nursing to serve as the director of nursing for that home health agency when the director of nursing is not present.
If a home health agency licensed under this chapter is part of a retirement community that provides multiple levels of care, an employee of the retirement community may serve as the director of nursing of the home health agency and up to a maximum of four entities, other than home health agencies, licensed under this chapter or chapter 429 which all have identical controlling interests as defined in s. 408.803.
(b) A home health agency that provides skilled nursing care may not operate for more than 30 calendar days without a director of nursing. A home health agency that provides skilled nursing care and the director of nursing of a home health agency must notify the agency within 10 business days after termination of the services of the director of nursing for the home health agency. A home health agency that provides skilled nursing care must notify the agency of the identity and qualifications of the new director of nursing within 10 days after the new director is hired. If a home health agency that provides skilled nursing care operates for more than 30 calendar days without a director of nursing, the home health agency commits a class II deficiency. In addition to the fine for a class II deficiency, the agency may issue a moratorium in accordance with s. 408.814 or revoke the license. The agency shall fine a home health agency that fails to notify the agency as required in this paragraph $1,000 for the first violation and $2,000 for a repeat violation. The agency may not take administrative action against a home health agency if the director of nursing fails to notify the department upon termination of services as the director of nursing for the home health agency.
(c) A home health agency that is not Medicare or Medicaid certified and does not provide skilled care or provides only physical, occupational, or speech therapy is not required to have a director of nursing and is exempt from paragraph (b).
(3) TRAINING.—A home health agency shall ensure that each certified nursing assistant employed by or under contract with the home health agency and each home health aide employed by or under contract with the home health agency is adequately trained to perform the tasks of a home health aide in the home setting.
(4) STAFFING.—Staffing services may be provided anywhere within the state.
History.—s. 5, ch. 2008-246.
400.4785 Patients with Alzheimer’s disease or other related disorders; staff training requirements; certain disclosures.—
(1) A home health agency must provide the following staff training:
(a) Upon beginning employment with the agency, each employee must receive basic written information about interacting with participants who have Alzheimer’s disease or dementia-related disorders.
(b) In addition to the information provided under paragraph (a), newly hired home health agency personnel who will be providing direct care to patients must complete 2 hours of training in Alzheimer’s disease and dementia-related disorders within 9 months after beginning employment with the agency. This training must include, but is not limited to, an overview of dementia, a demonstration of basic skills in communicating with persons who have dementia, the management of problem behaviors, information about promoting the client’s independence in activities of daily living, and instruction in skills for working with families and caregivers.
(c) For certified nursing assistants, the required 2 hours of training shall be part of the total hours of training required annually.
(d) For a health care practitioner as defined in s. 456.001, continuing education hours taken as required by that practitioner’s licensing board shall be counted toward the total of 2 hours.
(e) For an employee who is a licensed health care practitioner as defined in s. 456.001, training that is sanctioned by that practitioner’s licensing board shall be considered to be approved by the Department of Elderly Affairs.
(f) The Department of Elderly Affairs, or its designee, must approve the required training. The department must consider for approval training offered in a variety of formats. The department shall keep a list of current providers who are approved to provide the 2-hour training. The department shall adopt rules to establish standards for the employees who are subject to this training, for the trainers, and for the training required in this section.
(g) Upon completing the training listed in this section, the employee shall be issued a certificate that states that the training mandated under this section has been received. The certificate shall be dated and signed by the training provider. The certificate is evidence of completion of this training, and the employee is not required to repeat this training if the employee changes employment to a different home health agency.
(h) An employee who is hired on or after July 1, 2005, must complete the training required by this section.
(i) A licensed home health agency whose unduplicated census during the most recent calendar year was comprised of at least 90 percent of individuals aged 21 years or younger at the date of admission is exempt from the training requirements in this section.
(2) An agency licensed under this part which claims that it provides special care for persons who have Alzheimer’s disease or other related disorders must disclose in its advertisements or in a separate document those services that distinguish the care as being especially applicable to, or suitable for, such persons. The agency must give a copy of all such advertisements or a copy of the document to each person who requests information about the agency and must maintain a copy of all such advertisements and documents in its records. The Agency for Health Care Administration shall examine all such advertisements and documents in the agency’s records as part of the license renewal procedure.
History.—s. 3, ch. 93-105; s. 2, ch. 2003-271.
400.484 Right of inspection; deficiencies; fines.—
(1) In addition to the requirements of s. 408.811, the agency may make such inspections and investigations as are necessary in order to determine the state of compliance with this part, part II of chapter 408, and applicable rules.
(2) The agency shall impose fines for various classes of deficiencies in accordance with the following schedule:
(a) A class I deficiency is any act, omission, or practice that results in a patient’s death, disablement, or permanent injury, or places a patient at imminent risk of death, disablement, or permanent injury. Upon finding a class I deficiency, the agency shall impose an administrative fine in the amount of $15,000 for each occurrence and each day that the deficiency exists.
(b) A class II deficiency is any act, omission, or practice that has a direct adverse effect on the health, safety, or security of a patient. Upon finding a class II deficiency, the agency shall impose an administrative fine in the amount of $5,000 for each occurrence and each day that the deficiency exists.
(c) A class III deficiency is any act, omission, or practice that has an indirect, adverse effect on the health, safety, or security of a patient. Upon finding an uncorrected or repeated class III deficiency, the agency shall impose an administrative fine not to exceed $1,000 for each occurrence and each day that the uncorrected or repeated deficiency exists.
(d) A class IV deficiency is any act, omission, or practice related to required reports, forms, or documents which does not have the potential of negatively affecting patients. These violations are of a type that the agency determines do not threaten the health, safety, or security of patients. Upon finding an uncorrected or repeated class IV deficiency, the agency shall impose an administrative fine not to exceed $500 for each occurrence and each day that the uncorrected or repeated deficiency exists.
(3) In addition to any other penalties imposed pursuant to this section or part, the agency may assess costs related to an investigation that results in a successful prosecution, excluding costs associated with an attorney’s time.
History.—s. 45, ch. 75-233; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 8, 23, ch. 93-214; s. 5, ch. 99-332; s. 158, ch. 2000-318; s. 77, ch. 2007-230; s. 6, ch. 2008-246.
400.487 Home health service agreements; physician’s, physician assistant’s, and advanced registered nurse practitioner’s treatment orders; patient assessment; establishment and review of plan of care; provision of services; orders not to resuscitate.—
(1) Services provided by a home health agency must be covered by an agreement between the home health agency and the patient or the patient’s legal representative specifying the home health services to be provided, the rates or charges for services paid with private funds, and the sources of payment, which may include Medicare, Medicaid, private insurance, personal funds, or a combination thereof. A home health agency providing skilled care must make an assessment of the patient’s needs within 48 hours after the start of services.
(2) When required by the provisions of chapter 464; part I, part III, or part V of chapter 468; or chapter 486, the attending physician, physician assistant, or advanced registered nurse practitioner, acting within his or her respective scope of practice, shall establish treatment orders for a patient who is to receive skilled care. The treatment orders must be signed by the physician, physician assistant, or advanced registered nurse practitioner before a claim for payment for the skilled services is submitted by the home health agency. If the claim is submitted to a managed care organization, the treatment orders must be signed within the time allowed under the provider agreement. The treatment orders shall be reviewed, as frequently as the patient’s illness requires, by the physician, physician assistant, or advanced registered nurse practitioner in consultation with the home health agency.
(3) A home health agency shall arrange for supervisory visits by a registered nurse to the home of a patient receiving home health aide services in accordance with the patient’s direction, approval, and agreement to pay the charge for the visits.
(4) Each patient has the right to be informed of and to participate in the planning of his or her care. Each patient must be provided, upon request, a copy of the plan of care established and maintained for that patient by the home health agency.
(5) When nursing services are ordered, the home health agency to which a patient has been admitted for care must provide the initial admission visit, all service evaluation visits, and the discharge visit by a direct employee. Services provided by others under contractual arrangements to a home health agency must be monitored and managed by the admitting home health agency. The admitting home health agency is fully responsible for ensuring that all care provided through its employees or contract staff is delivered in accordance with this part and applicable rules.
(6) The skilled care services provided by a home health agency, directly or under contract, must be supervised and coordinated in accordance with the plan of care.
(7) Home health agency personnel may withhold or withdraw cardiopulmonary resuscitation if presented with an order not to resuscitate executed pursuant to s. 401.45. The agency shall adopt rules providing for the implementation of such orders. Home health personnel and agencies shall not be subject to criminal prosecution or civil liability, nor be considered to have engaged in negligent or unprofessional conduct, for withholding or withdrawing cardiopulmonary resuscitation pursuant to such an order and rules adopted by the agency.
History.—s. 46, ch. 75-233; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; s. 4, ch. 88-219; s. 1, ch. 90-61; ss. 9, 23, ch. 93-214; s. 783, ch. 95-148; s. 3, ch. 96-222; s. 5, ch. 99-331; s. 6, ch. 99-332; s. 159, ch. 2000-318; s. 5, ch. 2005-243.
400.488 Assistance with self-administration of medication.—
(1) For purposes of this section, the term:
(a) “Informed consent” means advising the patient, or the patient’s surrogate, guardian, or attorney in fact, that the patient may be receiving assistance with self-administration of medication from an unlicensed person.
(b) “Unlicensed person” means an individual not currently licensed to practice nursing or medicine who is employed by or under contract to a home health agency and who has received training with respect to assisting with the self-administration of medication as provided by agency rule.
(2) Patients who are capable of self-administering their own medications without assistance shall be encouraged and allowed to do so. However, an unlicensed person may, consistent with a dispensed prescription’s label or the package directions of an over-the-counter medication, assist a patient whose condition is medically stable with the self-administration of routine, regularly scheduled medications that are intended to be self-administered. Assistance with self-medication by an unlicensed person may occur only upon a documented request by, and the written informed consent of, a patient or the patient’s surrogate, guardian, or attorney in fact. For purposes of this section, self-administered medications include both legend and over-the-counter oral dosage forms, topical dosage forms, and topical ophthalmic, otic, and nasal dosage forms, including solutions, suspensions, sprays, and inhalers.
(3) Assistance with self-administration of medication includes:
(a) Taking the medication, in its previously dispensed, properly labeled container, from where it is stored and bringing it to the patient.
(b) In the presence of the patient, reading the label, opening the container, removing a prescribed amount of medication from the container, and closing the container.
(c) Placing an oral dosage in the patient’s hand or placing the dosage in another container and helping the patient by lifting the container to his or her mouth.
(d) Applying topical medications.
(e) Returning the medication container to proper storage.
(f) Keeping a record of when a patient receives assistance with self-administration under this section.
(4) Assistance with self-administration does not include:
(a) Mixing, compounding, converting, or calculating medication doses, except for measuring a prescribed amount of liquid medication or breaking a scored tablet or crushing a tablet as prescribed.
(b) The preparation of syringes for injection or the administration of medications by any injectable route.
(c) Administration of medications through intermittent positive pressure breathing machines or a nebulizer.
(d) Administration of medications by way of a tube inserted in a cavity of the body.
(e) Administration of parenteral preparations.
(f) Irrigations or debriding agents used in the treatment of a skin condition.
(g) Rectal, urethral, or vaginal preparations.
(h) Medications ordered by the physician or health care professional with prescriptive authority to be given “as needed,” unless the order is written with specific parameters that preclude independent judgment on the part of the unlicensed person, and at the request of a competent patient.
(i) Medications for which the time of administration, the amount, the strength of dosage, the method of administration, or the reason for administration requires judgment or discretion on the part of the unlicensed person.
(5) Assistance with the self-administration of medication by an unlicensed person as described in this section does not constitute administration as defined in s. 465.003.
(6) The agency may by rule establish procedures and interpret terms as necessary to administer this section.
History.—s. 7, ch. 99-332.
400.491 Clinical records.—
(1) The home health agency must maintain for each patient who receives skilled care a clinical record that includes pertinent past and current medical, nursing, social and other therapeutic information, the treatment orders, and other such information as is necessary for the safe and adequate care of the patient. When home health services are terminated, the record must show the date and reason for termination. Such records are considered patient records under s. 400.494, and must be maintained by the home health agency for 6 years following termination of services. If a patient transfers to another home health agency, a copy of his or her record must be provided to the other home health agency upon request.
(2) The home health agency must maintain for each client who receives nonskilled care a service provision plan. Such records must be maintained by the home health agency for 3 years following termination of services.
History.—s. 47, ch. 75-233; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 10, 23, ch. 93-214; s. 784, ch. 95-148; s. 25, ch. 98-166; s. 8, ch. 99-332; s. 20, ch. 2000-153; s. 16, ch. 2000-160; s. 6, ch. 2005-243; s. 7, ch. 2008-246.
400.492 Provision of services during an emergency.—Each home health agency shall prepare and maintain a comprehensive emergency management plan that is consistent with the standards adopted by national or state accreditation organizations and consistent with the local special needs plan. The plan shall be updated annually and shall provide for continuing home health services during an emergency that interrupts patient care or services in the patient’s home. The plan shall include the means by which the home health agency will continue to provide staff to perform the same type and quantity of services to their patients who evacuate to special needs shelters that were being provided to those patients prior to evacuation. The plan shall describe how the home health agency establishes and maintains an effective response to emergencies and disasters, including: notifying staff when emergency response measures are initiated; providing for communication between staff members, county health departments, and local emergency management agencies, including a backup system; identifying resources necessary to continue essential care or services or referrals to other organizations subject to written agreement; and prioritizing and contacting patients who need continued care or services.
(1) Each patient record for patients who are listed in the registry established pursuant to s. 252.355 shall include a description of how care or services will be continued in the event of an emergency or disaster. The home health agency shall discuss the emergency provisions with the patient and the patient’s caregivers, including where and how the patient is to evacuate, procedures for notifying the home health agency in the event that the patient evacuates to a location other than the shelter identified in the patient record, and a list of medications and equipment which must either accompany the patient or will be needed by the patient in the event of an evacuation.
(2) Each home health agency shall maintain a current prioritized list of patients who need continued services during an emergency. The list shall indicate how services shall be continued in the event of an emergency or disaster for each patient and if the patient is to be transported to a special needs shelter, and shall indicate if the patient is receiving skilled nursing services and the patient’s medication and equipment needs. The list shall be furnished to county health departments and to local emergency management agencies, upon request.
(3) Home health agencies shall not be required to continue to provide care to patients in emergency situations that are beyond their control and that make it impossible to provide services, such as when roads are impassable or when patients do not go to the location specified in their patient records. Home health agencies may establish links to local emergency operations centers to determine a mechanism by which to approach specific areas within a disaster area in order for the agency to reach its clients. Home health agencies shall demonstrate a good faith effort to comply with the requirements of this subsection by documenting attempts of staff to follow procedures outlined in the home health agency’s comprehensive emergency management plan, and by the patient’s record, which support a finding that the provision of continuing care has been attempted for those patients who have been identified as needing care by the home health agency and registered under s. 252.355, in the event of an emergency or disaster under subsection (1).
(4) Notwithstanding the provisions of s. 400.464(2) or any other provision of law to the contrary, a home health agency may provide services in a special needs shelter located in any county.
History.—s. 12, ch. 2000-140; s. 21, ch. 2006-71.
400.494 Information about patients confidential.—
(1) Information about patients received by persons employed by, or providing services to, a home health agency or received by the licensing agency through reports or inspection shall be confidential and exempt from the provisions of s. 119.07(1) and shall only be disclosed to any person, other than the patient, as permitted under the provisions of 45 C.F.R. ss. 160.102, 160.103, and 164, subpart A, commonly referred to as the HIPAA Privacy Regulation; except that clinical records described in ss. 381.004, 384.29, 385.202, 392.65, 394.4615, 395.404, 397.501, and 760.40 shall be disclosed as authorized in those sections.
(2) This section does not apply to information lawfully requested by the Medicaid Fraud Control Unit of the Department of Legal Affairs.
History.—s. 48, ch. 75-233; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; s. 20, ch. 90-347; s. 23, ch. 93-214; s. 229, ch. 96-406; s. 4, ch. 2000-163; s. 7, ch. 2005-243.
400.497 Rules establishing minimum standards.—The agency shall adopt, publish, and enforce rules to implement part II of chapter 408 and this part, including, as applicable, ss. 400.506 and 400.509, which must provide reasonable and fair minimum standards relating to:
(1) The home health aide competency test and home health aide training. The agency shall create the home health aide competency test and establish the curriculum and instructor qualifications for home health aide training. Licensed home health agencies may provide this training and shall furnish documentation of such training to other licensed home health agencies upon request. Successful passage of the competency test by home health aides may be substituted for the training required under this section and any rule adopted pursuant thereto.
(2) Shared staffing. The agency shall allow shared staffing if the home health agency is part of a retirement community that provides multiple levels of care, is located on one campus, is licensed under this chapter or chapter 429, and otherwise meets the requirements of law and rule.
(3) The criteria for the frequency of onsite licensure surveys.
(4) Licensure application and renewal.
(5) Oversight by the director of nursing. The agency shall develop rules related to:
(a) Standards that address oversight responsibilities by the director of nursing of skilled nursing and personal care services provided by the home health agency’s staff;
(b) Requirements for a director of nursing to provide to the agency, upon request, a certified daily report of the home health services provided by a specified direct employee or contracted staff member on behalf of the home health agency. The agency may request a certified daily report only for a period not to exceed 2 years prior to the date of the request; and
(c) A quality assurance program for home health services provided by the home health agency.
(6) Conditions for using a recent unannounced licensure inspection for the inspection required in s. 408.806 related to a licensure application associated with a change in ownership of a licensed home health agency.
(7) The requirements for onsite and electronic accessibility of supervisory personnel of home health agencies.
(8) Information to be included in patients’ records.
(9) Geographic service areas.
(10) Preparation of a comprehensive emergency management plan pursuant to s. 400.492.
(a) The Agency for Health Care Administration shall adopt rules establishing minimum criteria for the plan and plan updates, with the concurrence of the Department of Health and in consultation with the Division of Emergency Management.
(b) The rules must address the requirements in s. 400.492. In addition, the rules shall provide for the maintenance of patient-specific medication lists that can accompany patients who are transported from their homes.
(c) The plan is subject to review and approval by the county health department. During its review, the county health department shall contact state and local health and medical stakeholders when necessary. The county health department shall complete its review to ensure that the plan is in accordance with the criteria in the Agency for Health Care Administration rules within 90 days after receipt of the plan and shall approve the plan or advise the home health agency of necessary revisions. If the home health agency fails to submit a plan or fails to submit the requested information or revisions to the county health department within 30 days after written notification from the county health department, the county health department shall notify the Agency for Health Care Administration. The agency shall notify the home health agency that its failure constitutes a deficiency, subject to a fine of $5,000 per occurrence. If the plan is not submitted, information is not provided, or revisions are not made as requested, the agency may impose the fine.
(d) For any home health agency that operates in more than one county, the Department of Health shall review the plan, after consulting with state and local health and medical stakeholders when necessary. The department shall complete its review within 90 days after receipt of the plan and shall approve the plan or advise the home health agency of necessary revisions. The department shall make every effort to avoid imposing differing requirements on a home health agency that operates in more than one county as a result of differing or conflicting comprehensive plan requirements of the counties in which the home health agency operates.
(e) The requirements in this subsection do not apply to:
1. A facility that is certified under chapter 651 and has a licensed home health agency used exclusively by residents of the facility; or
2. A retirement community that consists of residential units for independent living and either a licensed nursing home or an assisted living facility, and has a licensed home health agency used exclusively by the residents of the retirement community, provided the comprehensive emergency management plan for the facility or retirement community provides for continuous care of all residents with special needs during an emergency.
History.—s. 49, ch. 75-233; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; s. 6, ch. 88-219; s. 4, ch. 89-354; s. 6, ch. 90-319; s. 38, ch. 90-347; s. 26, ch. 91-57; s. 31, ch. 91-263; ss. 12, 23, ch. 93-214; s. 786, ch. 95-148; s. 9, ch. 99-332; s. 13, ch. 2000-140; s. 160, ch. 2000-318; s. 22, ch. 2006-71; s. 62, ch. 2006-197; s. 79, ch. 2007-230; s. 8, ch. 2008-246; s. 276, ch. 2011-142.
400.506 Licensure of nurse registries; requirements; penalties.—
(1) A nurse registry is exempt from the licensing requirements of a home health agency but must be licensed as a nurse registry. The requirements of part II of chapter 408 apply to the provision of services that require licensure pursuant to ss. 400.506-400.518 and part II of chapter 408 and to entities licensed by or applying for such license from the Agency for Health Care Administration pursuant to ss. 400.506-400.518. A license issued by the agency is required for the operation of a nurse registry. Each operational site of the nurse registry must be licensed, unless there is more than one site within a county. If there is more than one site within a county, only one license per county is required. Each operational site must be listed on the license.
(2) Each applicant for licensure and each licensee must comply with all provisions of part II of chapter 408 and this section.
(3) In accordance with s. 408.805, an applicant or licensee shall pay a fee for each license application submitted under ss. 400.506-400.518, part II of chapter 408, and applicable rules. The amount of the fee shall be established by rule and may not exceed $2,000 per biennium.
(4) A person that provides, offers, or advertises to the public any service for which licensure is required under this section must include in such advertisement the license number issued to it by the Agency for Health Care Administration. The agency shall assess a fine of not less than $100 against any licensee who fails to include the license number when submitting the advertisement for publication, broadcast, or printing. The fine for a second or subsequent offense is $500.
(5)(a) In addition to the requirements of s. 408.812, any person who owns, operates, or maintains an unlicensed nurse registry and who, within 10 working days after receiving notification from the agency, fails to cease operation and apply for a license under this part commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Each day of continued operation is a separate offense.
(b) If a nurse registry fails to cease operation after agency notification, the agency may impose a fine of $500 for each day of noncompliance.
(6)(a) A nurse registry may refer for contract in private residences registered nurses and licensed practical nurses registered and licensed under part I of chapter 464, certified nursing assistants certified under part II of chapter 464, home health aides who present documented proof of successful completion of the training required by rule of the agency, and companions or homemakers for the purposes of providing those services authorized under s. 400.509(1). A licensed nurse registry shall ensure that each certified nursing assistant referred for contract by the nurse registry and each home health aide referred for contract by the nurse registry is adequately trained to perform the tasks of a home health aide in the home setting. Each person referred by a nurse registry must provide current documentation that he or she is free from communicable diseases.
(b) A certified nursing assistant or home health aide may be referred for a contract to provide care to a patient in his or her home only if that patient is under a physician’s care. A certified nursing assistant or home health aide referred for contract in a private residence shall be limited to assisting a patient with bathing, dressing, toileting, grooming, eating, physical transfer, and those normal daily routines the patient could perform for himself or herself were he or she physically capable. A certified nursing assistant or home health aide may not provide medical or other health care services that require specialized training and that may be performed only by licensed health care professionals. The nurse registry shall obtain the name and address of the attending physician and send written notification to the physician within 48 hours after a contract is concluded that a certified nursing assistant or home health aide will be providing care for that patient.
(c) When a certified nursing assistant or home health aide is referred to a patient’s home by a nurse registry, the nurse registry shall advise the patient, the patient’s family, or any other person acting on behalf of the patient at the time the contract for services is made that registered nurses are available to make visits to the patient’s home for an additional cost.
(7) A person who is referred by a nurse registry for contract in private residences and who is not a nurse licensed under part I of chapter 464 may perform only those services or care to clients that the person has been certified to perform or trained to perform as required by law or rules of the Agency for Health Care Administration or the Department of Business and Professional Regulation. Providing services beyond the scope authorized under this subsection constitutes the unauthorized practice of medicine or a violation of the Nurse Practice Act and is punishable as provided under chapter 458, chapter 459, or part I of chapter 464.
(8) Each nurse registry must require every applicant for contract to complete an application form providing the following information:
(a) The name, address, date of birth, and social security number of the applicant.
(b) The educational background and employment history of the applicant.
(c) The number and date of the applicable license or certification.
(d) When appropriate, information concerning the renewal of the applicable license, registration, or certification.
(e) Proof of completion of a continuing educational course on modes of transmission, infection control procedures, clinical management, and prevention of human immunodeficiency virus and acquired immune deficiency syndrome with an emphasis on appropriate behavior and attitude change. Such instruction shall include information on current Florida law and its effect on testing, confidentiality of test results, and treatment of patients and any protocols and procedures applicable to human immunodeficiency virus counseling and testing, reporting, offering HIV testing to pregnant women, and partner notification issues pursuant to ss. 381.004 and 384.25.
(9) Each nurse registry must comply with the background screening requirements in s. 400.512 for all persons referred for contract. However, an initial screening may not be required for persons who have been continuously registered with the nurse registry since October 1, 2000.
(10) The nurse registry must maintain the application on file, and that file must be open to the inspection of the Agency for Health Care Administration. The nurse registry must maintain on file the name and address of the patient or client to whom nurse registry personnel are referred for contract and the amount of the fee received by the nurse registry. A nurse registry must maintain the file that includes the application and other applicable documentation for 3 years after the date of the last file entry of patient-related or client-related information.
(11) Nurse registries shall assist persons who would need assistance and sheltering during evacuations because of physical, mental, or sensory disabilities in registering with the appropriate local emergency management agency pursuant to s. 252.355.
(12) Each nurse registry shall prepare and maintain a comprehensive emergency management plan that is consistent with the criteria in this subsection and with the local special needs plan. The plan shall be updated annually. The plan shall include the means by which the nurse registry will continue to provide the same type and quantity of services to its patients who evacuate to special needs shelters which were being provided to those patients prior to evacuation. The plan shall specify how the nurse registry shall facilitate the provision of continuous care by persons referred for contract to persons who are registered pursuant to s. 252.355 during an emergency that interrupts the provision of care or services in private residences. Nurse registries may establish links to local emergency operations centers to determine a mechanism by which to approach specific areas within a disaster area in order for a provider to reach its clients. Nurse registries shall demonstrate a good faith effort to comply with the requirements of this subsection by documenting attempts of staff to follow procedures outlined in the nurse registry’s comprehensive emergency management plan which support a finding that the provision of continuing care has been attempted for patients identified as needing care by the nurse registry and registered under s. 252.355 in the event of an emergency under this subsection.
(a) All persons referred for contract who care for persons registered pursuant to s. 252.355 must include in the patient record a description of how care will be continued during a disaster or emergency that interrupts the provision of care in the patient’s home. It shall be the responsibility of the person referred for contract to ensure that continuous care is provided.
(b) Each nurse registry shall maintain a current prioritized list of patients in private residences who are registered pursuant to s. 252.355 and are under the care of persons referred for contract and who need continued services during an emergency. This list shall indicate, for each patient, if the client is to be transported to a special needs shelter and if the patient is receiving skilled nursing services. Nurse registries shall make this list available to county health departments and to local emergency management agencies upon request.
(c) Each person referred for contract who is caring for a patient who is registered pursuant to s. 252.355 shall provide a list of the patient’s medication and equipment needs to the nurse registry. Each person referred for contract shall make this information available to county health departments and to local emergency management agencies upon request.
(d) Each person referred for contract shall not be required to continue to provide care to patients in emergency situations that are beyond the person’s control and that make it impossible to provide services, such as when roads are impassable or when patients do not go to the location specified in their patient records.
(e) The comprehensive emergency management plan required by this subsection is subject to review and approval by the county health department. During its review, the county health department shall contact state and local health and medical stakeholders when necessary. The county health department shall complete its review to ensure that the plan complies with the criteria in the Agency for Health Care Administration rules within 90 days after receipt of the plan and shall either approve the plan or advise the nurse registry of necessary revisions. If a nurse registry fails to submit a plan or fails to submit requested information or revisions to the county health department within 30 days after written notification from the county health department, the county health department shall notify the Agency for Health Care Administration. The agency shall notify the nurse registry that its failure constitutes a deficiency, subject to a fine of $5,000 per occurrence. If the plan is not submitted, information is not provided, or revisions are not made as requested, the agency may impose the fine.
(f) The Agency for Health Care Administration shall adopt rules establishing minimum criteria for the comprehensive emergency management plan and plan updates required by this subsection, with the concurrence of the Department of Health and in consultation with the Division of Emergency Management.
(13) All persons referred for contract in private residences by a nurse registry must comply with the following requirements for a plan of treatment:
(a) When, in accordance with the privileges and restrictions imposed upon a nurse under part I of chapter 464, the delivery of care to a patient is under the direction or supervision of a physician or when a physician is responsible for the medical care of the patient, a medical plan of treatment must be established for each patient receiving care or treatment provided by a licensed nurse in the home. The original medical plan of treatment must be timely signed by the physician, physician assistant, or advanced registered nurse practitioner, acting within his or her respective scope of practice, and reviewed in consultation with the licensed nurse at least every 2 months. Any additional order or change in orders must be obtained from the physician, physician assistant, or advanced registered nurse practitioner and reduced to writing and timely signed by the physician, physician assistant, or advanced registered nurse practitioner. The delivery of care under a medical plan of treatment must be substantiated by the appropriate nursing notes or documentation made by the nurse in compliance with nursing practices established under part I of chapter 464.
(b) Whenever a medical plan of treatment is established for a patient, the initial medical plan of treatment, any amendment to the plan, additional order or change in orders, and copy of nursing notes must be filed in the office of the nurse registry.
(14) The nurse registry must comply with the notice requirements of s. 408.810(5), relating to abuse reporting.
(15)(a) The agency may deny, suspend, or revoke the license of a nurse registry and shall impose a fine of $5,000 against a nurse registry that:
1. Provides services to residents in an assisted living facility for which the nurse registry does not receive fair market value remuneration.
2. Provides staffing to an assisted living facility for which the nurse registry does not receive fair market value remuneration.
3. Fails to provide the agency, upon request, with copies of all contracts with assisted living facilities which were executed within the last 5 years.
4. Gives remuneration to a case manager, discharge planner, facility-based staff member, or third-party vendor who is involved in the discharge planning process of a facility licensed under chapter 395 or this chapter and from whom the nurse registry receives referrals. A nurse registry is exempt from this subparagraph if it does not bill the Florida Medicaid program or the Medicare program or share a controlling interest with any entity licensed, registered, or certified under part II of chapter 408 that bills the Florida Medicaid program or the Medicare program.
5. Gives remuneration to a physician, a member of the physician’s office staff, or an immediate family member of the physician, and the nurse registry received a patient referral in the last 12 months from that physician or the physician’s office staff. A nurse registry is exempt from this subparagraph if it does not bill the Florida Medicaid program or the Medicare program or share a controlling interest with any entity licensed, registered, or certified under part II of chapter 408 that bills the Florida Medicaid program or the Medicare program.
(b) The agency shall also impose an administrative fine of $15,000 if the nurse registry refers nurses, certified nursing assistants, home health aides, or other staff without charge to a facility licensed under chapter 429 in return for patient referrals from the facility.
(c) The proceeds of all fines collected under this subsection shall be deposited into the Health Care Trust Fund.
(16) In addition to any other penalties imposed pursuant to this section or part, the agency may assess costs related to an investigation that results in a successful prosecution, excluding costs associated with an attorney’s time.
(17) The Agency for Health Care Administration shall adopt rules to implement this section and part II of chapter 408.
(18) An administrator may manage only one nurse registry, except that an administrator may manage up to five registries if all five registries have identical controlling interests as defined in s. 408.803 and are located within one agency geographic service area or within an immediately contiguous county. An administrator shall designate, in writing, for each licensed entity, a qualified alternate administrator to serve during the administrator’s absence.
History.—ss. 2, 4, ch. 90-101; s. 27, ch. 91-57; ss. 13, 23, ch. 93-214; s. 51, ch. 94-218; s. 1056, ch. 95-148; ss. 49, 71, ch. 98-171; s. 10, ch. 99-332; s. 14, ch. 2000-140; s. 21, ch. 2000-153; ss. 104, 161, ch. 2000-318; s. 80, ch. 2000-349; s. 25, ch. 2001-53; s. 2, ch. 2001-67; s. 148, ch. 2001-277; s. 48, ch. 2004-267; s. 1, ch. 2005-170; s. 1, ch. 2005-172; s. 8, ch. 2005-243; s. 23, ch. 2006-71; s. 79, ch. 2007-5; s. 80, ch. 2007-230; s. 103, ch. 2008-4; s. 2, ch. 2008-103; s. 9, ch. 2008-246; s. 7, ch. 2009-223; s. 7, ch. 2010-114; s. 277, ch. 2011-142; s. 12, ch. 2012-160.
400.509 Registration of particular service providers exempt from licensure; certificate of registration; regulation of registrants.—
(1) Any organization that provides companion services or homemaker services and does not provide a home health service to a person is exempt from licensure under this part. However, any organization that provides companion services or homemaker services must register with the agency. An organization under contract with the Agency for Persons with Disabilities which provides companion services only for persons with a developmental disability, as defined in s. 393.063, is exempt from registration.
(2) The requirements of part II of chapter 408 apply to the provision of services that require registration or licensure pursuant to this section and part II of chapter 408 and entities registered by or applying for such registration from the Agency for Health Care Administration pursuant to this section. Each applicant for registration and each registrant must comply with all provisions of part II of chapter 408. Registration or a license issued by the agency is required for the operation of an organization that provides companion services or homemaker services.
(3) In accordance with s. 408.805, applicants and registrants shall pay fees for all registrations issued under this part, part II of chapter 408, and applicable rules. The amount of the fee shall be $50 per biennium.
(4) Each registrant must obtain the employment or contract history of persons who are employed by or under contract with the organization and who will have contact at any time with patients or clients in their homes by:
(a) Requiring such persons to submit an employment or contractual history to the registrant; and
(b) Verifying the employment or contractual history, unless through diligent efforts such verification is not possible. The agency shall prescribe by rule the minimum requirements for establishing that diligent efforts have been made.
There is no monetary liability on the part of, and no cause of action for damages arises against, a former employer of a prospective employee of or prospective independent contractor with a registrant who reasonably and in good faith communicates his or her honest opinions about the former employee’s or contractor’s job performance. This subsection does not affect the official immunity of an officer or employee of a public corporation.
(5) A person that offers or advertises to the public a service for which registration is required must include in its advertisement the registration number issued by the Agency for Health Care Administration.
(6) In addition to any other penalties imposed pursuant to this section or part, the agency may assess costs related to an investigation that results in a successful prosecution, excluding costs associated with an attorney’s time.
(7) The Agency for Health Care Administration shall adopt rules to administer this section and part II of chapter 408.
History.—ss. 2, 3, ch. 87-123; s. 3, ch. 88-219; s. 66, ch. 91-221; s. 30, ch. 91-263; ss. 6, 23, ch. 93-214; s. 787, ch. 95-148; s. 11, ch. 99-332; s. 162, ch. 2000-318; s. 81, ch. 2000-349; s. 15, ch. 2004-267; s. 81, ch. 2007-230; s. 13, ch. 2012-160.
Note.—Former s. 400.478.
400.512 Screening of home health agency personnel; nurse registry personnel and contractors; and companions and homemakers.—The agency, registry, or service shall require level 2 background screening for employees or contractors as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809.
History.—s. 14, ch. 93-214; s. 21, ch. 94-134; s. 21, ch. 94-135; s. 1057, ch. 95-148; s. 17, ch. 95-152; s. 14, ch. 95-158; s. 1, ch. 95-201; s. 40, ch. 95-228; s. 128, ch. 95-418; s. 11, ch. 96-268; ss. 230, 231, ch. 96-406; s. 12, ch. 99-332; ss. 105, 163, ch. 2000-318; s. 82, ch. 2000-349; s. 24, ch. 2004-267; s. 9, ch. 2005-243; s. 82, ch. 2007-230; s. 8, ch. 2010-114.
400.518 Prohibited referrals to home health agencies.—
(1) A physician licensed under chapter 458 or chapter 459 must comply with s. 456.053.
(2) A hospital or an ambulatory surgical center that has a financial interest in a home health agency is prohibited from requiring any physician on its staff to refer a patient to the home health agency.
(3)(a) A violation of this section is punishable by an administrative fine not to exceed $15,000. The proceeds of such fines must be deposited into the Health Care Trust Fund.
(b) A physician who violates this section is subject to disciplinary action by the appropriate board under s. 458.331(2) or s. 459.015(2). A hospital or ambulatory surgical center that violates this section is subject to the rules adopted by the agency under s. 395.0185(2).
(4) The agency shall impose an administrative fine of $15,000 if a home health agency provides nurses, certified nursing assistants, home health aides, or other staff without charge to a facility licensed under chapter 429 in return for patient referrals from the facility. The proceeds of such fines shall be deposited into the Health Care Trust Fund.
History.—s. 17, ch. 93-214; s. 26, ch. 98-166; s. 17, ch. 2000-160; s. 10, ch. 2008-246.
400.5185 Review and modification of prior authorization.—The Agency for Health Care Administration shall review the process, procedures, and contractor’s performance for the prior authorization of home health agency visits that are in excess of 60 visits over the lifetime of a Medicaid recipient. The agency shall determine whether modifications are necessary in order to reduce Medicaid fraud and abuse related to home health services for a Medicaid recipient which are not medically necessary. If modifications to the prior authorization function are necessary, the agency shall amend the contract to require contractor performance that reduces potential Medicaid fraud and abuse with respect to home health agency visits.
History.—s. 15, ch. 2008-246.
PART IV
HOSPICES400.6005 Legislative findings and intent.
400.601 Definitions.
400.602 Licensure required; prohibited acts; exemptions; display, transferability of license.
400.6045 Patients with Alzheimer’s disease or other related disorders; staff training requirements; certain disclosures.
400.605 Administration; forms; fees; rules; inspections; fines.
400.60501 Outcome measures; adoption of national initiatives; annual report.
400.6051 Construction and renovation; requirements.
400.606 License; application; renewal; conditional license or permit; certificate of need.
400.6065 Background screening.
400.607 Denial, suspension, revocation of license; emergency actions; imposition of administrative fine; grounds.
400.6085 Contractual services.
400.609 Hospice services.
400.6095 Patient admission; assessment; plan of care; discharge; death.
400.610 Administration and management of a hospice.
400.6105 Staffing and personnel.
400.611 Interdisciplinary records of care; confidentiality.
400.6005 Legislative findings and intent.—The Legislature finds that terminally ill individuals and their families, who are no longer pursuing curative medical treatment, should have the opportunity to select a support system that permits the patient to exercise maximum independence and dignity during the final days of life. The Legislature finds that hospice care provides a cost-effective and less intrusive form of medical care while meeting the social, psychological, and spiritual needs of terminally ill patients and their families. The intent of this part is to provide for the development, establishment, and enforcement of basic standards to ensure the safe and adequate care of persons receiving hospice services.
History.—s. 1, ch. 93-179.
400.601 Definitions.—As used in this part, the term:
(1) “Agency” means the Agency for Health Care Administration.
(2) “Department” means the Department of Elderly Affairs.
(3) “Hospice” means a centrally administered corporation or a limited liability company that provides a continuum of palliative and supportive care for the terminally ill patient and his or her family.
(4) “Hospice care team” means an interdisciplinary team of qualified professionals and volunteers who, in consultation with the patient, the patient’s family, and the patient’s primary or attending physician, collectively assess, coordinate, and provide the appropriate palliative and supportive care to hospice patients and their families.
(5) “Hospice residential unit” means a homelike living facility, other than a facility licensed under other parts of this chapter, under chapter 395, or under chapter 429, that is operated by a hospice for the benefit of its patients and is considered by a patient who lives there to be his or her primary residence.
(6) “Hospice services” means items and services furnished to a patient and family by a hospice, or by others under arrangements with such a program, in a place of temporary or permanent residence used as the patient’s home for the purpose of maintaining the patient at home; or, if the patient needs short-term institutionalization, the services shall be furnished in cooperation with those contracted institutions or in the hospice inpatient facility.
(7) “Palliative care” means services or interventions which are not curative but are provided for the reduction or abatement of pain and human suffering.
(8) “Patient” means the terminally ill individual receiving hospice services.
(9) “Plan of care” means a written assessment by the hospice of each patient’s and family’s needs and preferences, and the services to be provided by the hospice to meet those needs.
(10) “Terminally ill” means that the patient has a medical prognosis that his or her life expectancy is 1 year or less if the illness runs its normal course.
History.—s. 1, ch. 79-186; s. 1, ch. 80-64; s. 256, ch. 81-259; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 2, 14, ch. 93-179; s. 788, ch. 95-148; s. 57, ch. 95-418; s. 1, ch. 2006-155; s. 65, ch. 2006-197; s. 14, ch. 2012-160.
400.602 Licensure required; prohibited acts; exemptions; display, transferability of license.—
(1)(a) The requirements of part II of chapter 408 apply to the provision of services that require licensure pursuant to this part and part II of chapter 408 and to entities licensed by or applying for such licensure from the agency pursuant to this part. A license issued by the agency is required in order to operate a hospice in this state. Any person or legal entity that is not licensed as a hospice under this part may not use the word “hospice” in its name, or offer or advertise hospice services or hospice-like services in such a way as to mislead a person to believe that the offeror is a hospice licensed under this part.
(b) It is unlawful for any person or legal entity offering, describing, or advertising hospice services or hospice-like services or otherwise holding itself out as a hospice to do so without stating the year of initial licensure as a hospice in the state or the year of initial licensure of the hospice entity or affiliate based in the state that owns the hospice. At a minimum, the year of initial licensure must be stated directly beneath the name of the licensed entity in a type no less than 25 percent of the size of the type used for the name or other indication of hospice services or hospice-like services and must be prominently stated at least one time on any document, item, or other medium offering, describing, or advertising hospice services or hospice-like services. This requirement excludes any materials relating to the care and treatment of an existing hospice patient.
(2) Services provided by a hospital, nursing home, or other health care facility, health care provider, or caregiver, or under the Community Care for the Elderly Act, do not constitute a hospice unless the facility, provider, or caregiver establishes a separate and distinct administrative program to provide home, residential, and homelike inpatient hospice services.
(3)(a) A separately licensed hospice may not use a name which is substantially the same as the name of another hospice licensed under this part.
(b) A licensed hospice which intends to change its name or address must notify the agency at least 60 days before making the change.
History.—s. 3, ch. 79-186; s. 2, ch. 80-64; s. 2, ch. 81-271; s. 2, ch. 81-318; ss. 66, 79, 83, ch. 83-181; s. 10, ch. 89-527; ss. 3, 14, ch. 93-179; s. 58, ch. 95-418; s. 11, ch. 97-270; s. 2, ch. 2006-155; s. 84, ch. 2007-230.
400.6045 Patients with Alzheimer’s disease or other related disorders; staff training requirements; certain disclosures.—
(1) A hospice licensed under this part must provide the following staff training:
(a) Upon beginning employment with the agency, each employee must receive basic written information about interacting with persons who have Alzheimer’s disease or dementia-related disorders.
(b) In addition to the information provided under paragraph (a), employees who are expected to, or whose responsibilities require them to, have direct contact with participants who have Alzheimer’s disease or dementia-related disorders must complete initial training of at least 1 hour within the first 3 months after beginning employment. The training must include an overview of dementias and must provide instruction in basic skills for communicating with persons who have dementia.
(c) In addition to the requirements of paragraphs (a) and (b), an employee who will be providing direct care to a participant who has Alzheimer’s disease or a dementia-related disorder must complete an additional 3 hours of training within 9 months after beginning employment. This training must include, but is not limited to, the management of problem behaviors, information about promoting the patient’s independence in activities of daily living, and instruction in skills for working with families and caregivers.
(d) For certified nursing assistants, the required 4 hours of training shall be part of the total hours of training required annually.
(e) For a health care practitioner as defined in s. 456.001, continuing education hours taken as required by that practitioner’s licensing board shall be counted toward the total of 4 hours.
(f) For an employee who is a licensed health care practitioner as defined in s. 456.001, training that is sanctioned by that practitioner’s licensing board shall be considered to be approved by the Department of Elderly Affairs.
(g) The Department of Elderly Affairs or its designee must approve the required 1-hour and 3-hour training provided to employees or direct caregivers under this section. The department must consider for approval training offered in a variety of formats. The department shall keep a list of current providers who are approved to provide the 1-hour and 3-hour training. The department shall adopt rules to establish standards for the employees who are subject to this training, for the trainers, and for the training required in this section.
(h) Upon completing any training described in this section, the employee or direct caregiver shall be issued a certificate that includes the name of the training provider, the topic covered, and the date and signature of the training provider. The certificate is evidence of completion of training in the identified topic, and the employee or direct caregiver is not required to repeat training in that topic if the employee or direct caregiver changes employment to a different hospice or to a home health agency, assisted living facility, nursing home, or adult day care center.
(i) An employee who is hired on or after July 1, 2003, must complete the required training by July 1, 2004, or by the deadline specified in this section, whichever is later.
(2) A hospice licensed under this part which claims that it provides special care for persons who have Alzheimer’s disease or other related disorders must disclose in its advertisements or in a separate document those services that distinguish the care as being especially applicable to, or suitable for, such persons. The hospice must give a copy of all such advertisements or a copy of the document to each person who requests information about programs and services for persons with Alzheimer’s disease or other related disorders offered by the hospice and must maintain a copy of all such advertisements and documents in its records. The agency shall examine all such advertisements and documents in the hospice’s records as part of the license renewal procedure.
History.—s. 5, ch. 93-105; s. 4, ch. 2003-271.
400.605 Administration; forms; fees; rules; inspections; fines.—
(1) The agency, in consultation with the department, may adopt rules to administer the requirements of part II of chapter 408. The department, in consultation with the agency, shall by rule establish minimum standards and procedures for a hospice pursuant to this part. The rules must include:
(a) The qualifications of professional and ancillary personnel to ensure the provision of appropriate and adequate hospice care.
(b) Standards and procedures for the administrative management of a hospice.
(c) Standards for hospice services that ensure the provision of quality patient care.
(d) Components of a patient plan of care.
(e) Procedures relating to the implementation of advanced directives and do-not-resuscitate orders.
(f) Procedures for maintaining and ensuring confidentiality of patient records.
(g) Standards for hospice care provided in freestanding inpatient facilities that are not otherwise licensed medical facilities and in residential care facilities such as nursing homes, assisted living facilities, adult family-care homes, and hospice residential units and facilities.
(h) Components of a comprehensive emergency management plan, developed in consultation with the Department of Health, the Department of Elderly Affairs, and the Division of Emergency Management.
(i) Standards and procedures relating to the establishment and activities of a quality assurance and utilization review committee.
(j) Components and procedures relating to the collection of patient demographic data and other information on the provision of hospice care in this state.
(2) In accordance with s. 408.805, an applicant or licensee shall pay a fee for each license application submitted under this part, part II of chapter 408, and applicable rules. The amount of the fee shall be established by rule and may not exceed $1,200 per biennium.
(3) In accordance with s. 408.811, the agency shall conduct annual inspections of all licensees, except that licensure inspections may be conducted biennially for hospices having a 3-year record of substantial compliance. The agency shall conduct such inspections and investigations as are necessary in order to determine the state of compliance with the provisions of this part, part II of chapter 408, and applicable rules.
(4) In accordance with part II of chapter 408, the agency may impose an administrative fine for any violation of the provisions of this part, part II of chapter 408, or applicable rules.
History.—s. 2, ch. 79-186; s. 2, ch. 81-318; ss. 69, 79, 83, ch. 83-181; s. 13, ch. 91-282; ss. 4, 14, ch. 93-179; s. 59, ch. 95-418; s. 1, ch. 99-139; s. 15, ch. 2000-140; s. 2, ch. 2005-191; s. 85, ch. 2007-230; s. 278, ch. 2011-142.
400.60501 Outcome measures; adoption of national initiatives; annual report.—
(1) No later than December 31, 2007, the Department of Elderly Affairs, in conjunction with the Agency for Health Care Administration, shall develop outcome measures to determine the quality and effectiveness of hospice care for hospices licensed in the state. At a minimum, these outcome measures shall include a requirement that 50 percent of patients who report severe pain on a 0-to-10 scale must report a reduction to 5 or less by the end of the 4th day of care on the hospice program.
(2) For hospices licensed in the state, the Department of Elderly Affairs, in conjunction with the Agency for Health Care Administration, shall:
(a) Consider and adopt national initiatives, such as those developed by the National Hospice and Palliative Care Organization, to set benchmarks for measuring the quality of hospice care provided in the state.
(b) Develop an annual report that analyzes and evaluates the information collected under this act and any other data collection or reporting provisions of law.
History.—s. 7, ch. 2006-155.
400.6051 Construction and renovation; requirements.—
(1) The requirements for the construction and the renovation of a hospice residential or inpatient facility or unit must comply with the provisions of chapter 553 which pertain to building construction standards, including plumbing, electrical code, glass, manufactured buildings, accessibility for persons with disabilities, and the state minimum building codes. The Agency for Health Care Administration shall provide technical assistance to the Florida Building Commission in updating the construction standards of the Florida Building Code which govern hospice facilities.
(2) Upon request by the prospective licensee of an inpatient hospice facility, the agency may provide an informal review of a facility prior to construction in order to assist the facility in complying with agency rules and this part.
(3) The agency may charge a fee that is commensurate with the cost of providing consultation under this section and that is not refundable.
History.—s. 3, ch. 2005-191; s. 1, ch. 2007-238.
400.606 License; application; renewal; conditional license or permit; certificate of need.—
(1) In addition to the requirements of part II of chapter 408, the initial application and change of ownership application must be accompanied by a plan for the delivery of home, residential, and homelike inpatient hospice services to terminally ill persons and their families. Such plan must contain, but need not be limited to:
(a) The estimated average number of terminally ill persons to be served monthly.
(b) The geographic area in which hospice services will be available.
(c) A listing of services which are or will be provided, either directly by the applicant or through contractual arrangements with existing providers.
(d) Provisions for the implementation of hospice home care within 3 months after licensure.
(e) Provisions for the implementation of hospice homelike inpatient care within 12 months after licensure.
(f) The number and disciplines of professional staff to be employed.
(g) The name and qualifications of any existing or potential contractee.
(h) A plan for attracting and training volunteers.
If the applicant is an existing licensed health care provider, the application must be accompanied by a copy of the most recent profit-loss statement and, if applicable, the most recent licensure inspection report.
(2) In addition to the requirements of part II of chapter 408, the application for license renewal shall be accompanied by an update of the plan for delivery of hospice care only if information contained in the plan submitted pursuant to subsection (1) is no longer applicable.
(3) The agency shall not issue a license to a hospice that fails to receive a certificate of need under the provisions of part I of chapter 408. A licensed hospice is a health care facility as that term is used in s. 408.039(5) and is entitled to initiate or intervene in an administrative hearing.
(4) A freestanding hospice facility that is engaged in providing inpatient and related services and that is not otherwise licensed as a health care facility shall obtain a certificate of need. However, a freestanding hospice facility that has six or fewer beds is not required to comply with institutional standards such as, but not limited to, standards requiring sprinkler systems, emergency electrical systems, or special lavatory devices.
(5) The agency may deny a license to an applicant that fails to meet any condition for the provision of hospice care or services imposed by the agency on a certificate of need by final agency action, unless the applicant can demonstrate that good cause exists for the applicant’s failure to meet such condition.
History.—s. 6, ch. 79-186; s. 5, ch. 81-271; s. 2, ch. 81-318; ss. 70, 79, 83, ch. 83-181; s. 47, ch. 87-92; ss. 5, 14, ch. 93-179; s. 60, ch. 95-418; s. 54, ch. 98-171; s. 3, ch. 2006-155; s. 86, ch. 2007-230; s. 15, ch. 2012-160.
400.6065 Background screening.—The agency shall require level 2 background screening for personnel as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809.
History.—ss. 55, 71, ch. 98-171; s. 22, ch. 2000-349; s. 25, ch. 2001-53; s. 2, ch. 2001-67; s. 148, ch. 2001-277; s. 17, ch. 2004-267; s. 87, ch. 2007-230; s. 9, ch. 2010-114.
400.607 Denial, suspension, revocation of license; emergency actions; imposition of administrative fine; grounds.—
(1) The agency may deny, revoke, and suspend a license, impose an action under s. 408.814, and impose an administrative fine, which may not exceed $5,000 per violation, for the violation of any provision of this part, part II of chapter 408, or applicable rules.
(2) Any of the following actions by a licensed hospice or any of its employees shall be grounds for action by the agency against a hospice:
(a) A violation of the provisions of this part, part II of chapter 408, or applicable rules.
(b) An intentional or negligent act materially affecting the health or safety of a patient.
(3) If, 3 months after the date of obtaining a license, or at any time thereafter, a hospice does not have in operation the home-care component of hospice care, the agency shall immediately revoke the license of such hospice.
(4) If, 12 months after the date of obtaining a license pursuant to s. 400.606, or at any time thereafter, a hospice does not have in operation the inpatient components of hospice care, the agency shall immediately revoke the license of such hospice.
(5) The remedies set forth in this section are independent of and cumulative to other remedies provided by law.
History.—s. 7, ch. 79-186; s. 2, ch. 81-318; ss. 71, 79, 83, ch. 83-181; ss. 6, 14, ch. 93-179; s. 56, ch. 98-171; s. 50, ch. 2004-267; s. 88, ch. 2007-230.
400.6085 Contractual services.—A hospice may contract out for some elements of its services. However, the core services, as set forth in s. 400.609(1), with the exception of physician services, shall be provided directly by the hospice. Any contract entered into between a hospice and a health care facility or service provider must specify that the hospice retains the responsibility for planning, coordinating, and prescribing hospice care and services for the hospice patient and family. A hospice that contracts for any hospice service is prohibited from charging fees for services provided directly by the hospice care team that duplicate contractual services provided to the patient and family.
(1) A contract for hospice services, including inpatient services, must:
(a) Identify the nature and scope of services to be provided.
(b) Require that direct patient care shall be maintained, supervised, and coordinated by the hospice care team.
(c) Limit the services to be provided to only those expressly authorized by the hospice in writing.
(d) Delineate the roles of hospice staff and contract staff in the admission process and patient assessment.
(e) Identify methods for ensuring continuity of hospice care.
(f) Plan for joint quality assurance.
(g) Specify the written documentation, including patient records, required of contract staff.
(h) Specify qualifications of persons providing the contract services.
(i) Specify the effective dates for the contract.
(2) With respect to contractual arrangements for inpatient hospice care:
(a) Licensed beds designated for inpatient hospice care through contract between an existing health care facility and a hospice shall not be required to be delicensed from one type of health care in order to enter into a contract with a hospice, nor shall the physical plant of any facility licensed pursuant to chapter 395 or part II of this chapter be required to be altered, except that a homelike atmosphere may be required.
(b) Hospices contracting for inpatient care beds shall not be required to obtain an additional certificate of need for the number of such designated beds. Such beds shall remain licensed to the health care facility and be subject to the appropriate inspections.
(c) Staffing standards for inpatient hospice care provided through a contract may not exceed the staffing standards required under the license held by the contractee.
(d) Under no circumstances may a hospice place a patient requiring inpatient care in a health care facility that is under a moratorium, has had its license revoked, or has a conditional license, accreditation, or rating. However, a hospice may continue to provide care or initiate care for a terminally ill person already residing in such a facility.
History.—s. 7, ch. 93-179; s. 219, ch. 99-13; s. 2, ch. 99-139.
400.609 Hospice services.—Each hospice shall provide a continuum of hospice services which afford the patient and the family of the patient a range of service delivery which can be tailored to specific needs and preferences of the patient and family at any point in time throughout the length of care for the terminally ill patient and during the bereavement period. These services must be available 24 hours a day, 7 days a week, and must include:
(1) SERVICES.—
(a) The hospice care team shall directly provide the following core services: nursing services, social work services, pastoral or counseling services, dietary counseling, and bereavement counseling services. Physician services may be provided by the hospice directly or through contract. A hospice may also use contracted staff if necessary to supplement hospice employees in order to meet the needs of patients during periods of peak patient loads or under extraordinary circumstances.
(b) Each hospice must also provide or arrange for such additional services as are needed to meet the palliative and support needs of the patient and family. These services may include, but are not limited to, physical therapy, occupational therapy, speech therapy, massage therapy, home health aide services, infusion therapy, provision of medical supplies and durable medical equipment, day care, homemaker and chore services, and funeral services.
(2) HOSPICE HOME CARE.—Hospice care and services provided in a private home shall be the primary form of care. The goal of hospice home care shall be to provide adequate training and support to encourage self-sufficiency and allow patients and families to maintain the patient comfortably at home for as long as possible. The services of the hospice home care program shall be of the highest quality and shall be provided by the hospice care team.
(3) HOSPICE RESIDENTIAL CARE.—Hospice care and services, to the extent practicable and compatible with the needs and preferences of the patient, may be provided by the hospice care team to a patient living in an assisted living facility, adult family-care home, nursing home, hospice residential unit or facility, or other nondomestic place of permanent or temporary residence. A resident or patient living in an assisted living facility, adult family-care home, nursing home, or other facility subject to state licensing who has been admitted to a hospice program shall be considered a hospice patient, and the hospice program shall be responsible for coordinating and ensuring the delivery of hospice care and services to such person pursuant to the standards and requirements of this part and rules adopted under this part.
(4) HOSPICE INPATIENT CARE.—The inpatient component of care is a short-term adjunct to hospice home care and hospice residential care and shall be used only for pain control, symptom management, or respite care. The total number of inpatient days for all hospice patients in any 12-month period may not exceed 20 percent of the total number of hospice days for all the hospice patients of the licensed hospice. Hospice inpatient care shall be under the direct administration of the hospice, whether the inpatient facility is a freestanding hospice facility or part of a facility licensed pursuant to chapter 395 or part II of this chapter. The facility or rooms within a facility used for the hospice inpatient component of care shall be arranged, administered, and managed in such a manner as to provide privacy, dignity, comfort, warmth, and safety for the terminally ill patient and the family. Every possible accommodation must be made to create as homelike an atmosphere as practicable. To facilitate overnight family visitation within the facility, rooms must be limited to no more than double occupancy; and, whenever possible, both occupants must be hospice patients. There must be a continuum of care and a continuity of caregivers between the hospice home program and the inpatient aspect of care to the extent practicable and compatible with the preferences of the patient and his or her family. Fees charged for hospice inpatient care, whether provided directly by the hospice or through contract, must be made available upon request to the Agency for Health Care Administration. The hours for daily operation and the location of the place where the services are provided must be determined, to the extent practicable, by the accessibility of such services to the patients and families served by the hospice.
(5) BEREAVEMENT COUNSELING.—The hospice bereavement program must be a comprehensive program, under professional supervision, that provides a continuum of formal and informal supportive services to the family for a minimum of 1 year after the patient’s death. This subsection does not constitute an additional exemption from chapter 490 or chapter 491.
History.—s. 9, ch. 79-186; s. 7, ch. 81-271; s. 2, ch. 81-318; ss. 73, 79, 83, ch. 83-181; s. 5, ch. 91-48; s. 67, ch. 91-221; s. 97, ch. 92-33; ss. 8, 14, ch. 93-179; s. 789, ch. 95-148; s. 21, ch. 95-210; s. 3, ch. 99-139.
400.6095 Patient admission; assessment; plan of care; discharge; death.—
(1) Each hospice shall make its services available to all terminally ill persons and their families without regard to age, gender, national origin, sexual orientation, disability, diagnosis, cost of therapy, ability to pay, or life circumstances. A hospice shall not impose any value or belief system on its patients or their families and shall respect the values and belief systems of its patients and their families.
(2) Admission to a hospice program shall be made upon a diagnosis and prognosis of terminal illness by a physician licensed pursuant to chapter 458 or chapter 459 and shall be dependent on the expressed request and informed consent of the patient.
(3) At the time of admission, the hospice shall inquire whether advance directives have been executed pursuant to chapter 765, and if not, provide information to the patient concerning the provisions of that chapter. The hospice shall also provide the patient with information concerning patient rights and responsibilities pursuant to s. 381.026.
(4) The admission process shall include a professional assessment of the physical, social, psychological, spiritual, and financial needs of the patient. This assessment shall serve as the basis for the development of a plan of care.
(5) Each hospice, in collaboration with the patient and the patient’s primary or attending physician, shall prepare and maintain a plan of care for each patient, and the care provided to a patient must be in accordance with the plan of care. The plan of care shall be made a part of the patient’s medical record and shall include, at a minimum:
(a) Identification of the primary caregiver, or an alternative plan of care in the absence of a primary caregiver, to ensure that the patient’s needs will be met.
(b) The patient’s diagnosis, prognosis, and preferences for care.
(c) Assessment of patient and family needs, identification of the services required to meet those needs, and plans for providing those services through the hospice care team, volunteers, contractual providers, and community resources.
(d) Plans for instructing the patient and family in patient care.
(e) Identification of the nurse designated to coordinate the overall plan of care for each patient and family.
(f) A description of how needed care and services will be provided in the event of an emergency.
(6) The hospice shall provide an ongoing assessment of the patient and family needs, update the plan of care to meet changing needs, coordinate the care provided with the patient’s primary or attending physician, and document the services provided.
(7) In the event a hospice patient chooses to be discharged or transferred to another hospice, the hospice shall arrange for continuing care and services and complete a comprehensive discharge summary for the receiving provider.
(8) The hospice care team may withhold or withdraw cardiopulmonary resuscitation if presented with an order not to resuscitate executed pursuant to s. 401.45. The department shall adopt rules providing for the implementation of such orders. Hospice staff shall not be subject to criminal prosecution or civil liability, nor be considered to have engaged in negligent or unprofessional conduct, for withholding or withdrawing cardiopulmonary resuscitation pursuant to such an order and applicable rules. The absence of an order to resuscitate executed pursuant to s. 401.45 does not preclude a physician from withholding or withdrawing cardiopulmonary resuscitation as otherwise permitted by law.
(9) The death of a person enrolled as a hospice patient shall be considered an attended death for the purposes of s. 406.11(1)(a)5. However, a hospice shall report the death to the medical examiner if any unusual or unexpected circumstances are present.
History.—s. 9, ch. 93-179; s. 6, ch. 99-331; s. 16, ch. 2000-140; s. 4, ch. 2000-295; s. 89, ch. 2007-230.
400.610 Administration and management of a hospice.—
(1) A hospice shall have a clearly defined organized governing body, consisting of a minimum of seven persons who are representative of the general population of the community served. The governing body shall have autonomous authority and responsibility for the operation of the hospice and shall meet at least quarterly. The governing body shall:
(a) Adopt an annual plan for the operation of the hospice, which shall include a plan for providing for uncompensated care and philanthropic community activities.
(b)1. Prepare and maintain a comprehensive emergency management plan that provides for continuing hospice services in the event of an emergency that is consistent with local special needs plans. The plan shall include provisions for ensuring continuing care to hospice patients who go to special needs shelters. The plan shall include the means by which the hospice provider will continue to provide staff to provide the same type and quantity of services to their patients who evacuate to special needs shelters which were being provided to those patients prior to evacuation. The plan is subject to review and approval by the county health department, except as provided in subparagraph 2. During its review, the county health department shall contact state and local health and medical stakeholders when necessary. The county health department shall complete its review to ensure that the plan complies with criteria in rules of the Department of Elderly Affairs within 90 days after receipt of the plan and shall either approve the plan or advise the hospice of necessary revisions. Hospice providers may establish links to local emergency operations centers to determine a mechanism by which to approach specific areas within a disaster area in order for the provider to reach its clients. A hospice shall demonstrate a good faith effort to comply with the requirements of this paragraph by documenting attempts of staff to follow procedures as outlined in the hospice’s comprehensive emergency management plan and to provide continuing care for those hospice clients who have been identified as needing alternative caregiver services in the event of an emergency.
2. For any hospice that operates in more than one county, the Department of Health during its review shall contact state and local health and medical stakeholders when necessary. The Department of Health shall complete its review to ensure that the plan complies with criteria in rules of the Department of Elderly Affairs within 90 days after receipt of the plan and shall approve the plan or advise the hospice of necessary revisions. The Department of Health shall make every effort to avoid imposing differing requirements on a hospice that operates in more than one county as a result of differing or conflicting comprehensive plan requirements of the counties in which the hospice operates.
(c) Adopt an annual budget.
(d) Appoint a director who shall be responsible for the day-to-day management and operation of the hospice and who shall serve as the liaison between the governing body and the hospice staff.
(e) Undertake such additional activities as necessary to ensure that the hospice is complying with the requirements for hospice services as set forth in this part.
(2) Each hospice shall develop and implement a comprehensive quality assurance and utilization review plan to be used for ongoing internal evaluation of the appropriateness and effectiveness of the hospice services provided. Each hospice shall take the corrective actions identified by the review and report a summary of these actions to the governing body at least annually.
(3) Each hospice shall ensure that adequate policies, procedures, and systems are developed and implemented to provide effective delivery of services.
History.—s. 10, ch. 79-186; s. 2, ch. 81-318; ss. 74, 79, 83, ch. 83-181; ss. 10, 14, ch. 93-179; s. 17, ch. 2000-140; s. 24, ch. 2006-71.
400.6105 Staffing and personnel.—
(1) Each hospice shall have a medical director licensed pursuant to chapter 458 or chapter 459 who shall have responsibility for directing the medical care and treatment of hospice patients.
(2) Each hospice shall employ a full-time registered nurse licensed pursuant to part I of chapter 464 who shall coordinate the implementation of the plan of care for each patient.
(3) A hospice shall employ a hospice care team or teams who shall participate in the establishment and ongoing review of the patient’s plan of care, and be responsible for and supervise the delivery of hospice care and services to the patient. The team shall, at a minimum, consist of a physician licensed pursuant to chapter 458 or chapter 459, a nurse licensed pursuant to part I of chapter 464, a social worker, and a pastoral or other counselor. The composition of the team may vary for each patient and, over time, for the same patient to ensure that all the patient’s needs and preferences are met.
(4) A hospice must maintain a trained volunteer staff for the purpose of providing both administrative support and direct patient care. A hospice must use trained volunteers who work in defined roles and under the supervision of a designated hospice employee for an amount of time that equals at least 5 percent of the total patient care or administrative hours provided by all paid hospice employees and contract staff in the aggregate. The hospice shall document and report the use of volunteers, including maintaining a record of the number of volunteers, the number of hours worked by each volunteer, and the tasks performed by each volunteer.
(5) A hospice may contract with other persons or legal entities to provide additional services beyond those provided by the hospice care team or, to supplement the number of persons on the hospice care team, to ensure that the needs of patients and their families are met. Persons hired on contract shall have the same qualifications as are required of hospice personnel.
(6) Each hospice shall provide ongoing training and support programs for hospice staff and volunteers.
History.—s. 11, ch. 93-179; s. 106, ch. 2000-318; s. 4, ch. 2006-155.
400.611 Interdisciplinary records of care; confidentiality.—
(1) An up-to-date, interdisciplinary record of care being given and patient and family status shall be kept. Records shall contain pertinent past and current medical, nursing, social, and other therapeutic information and such other information that is necessary for the safe and adequate care of the patient. Notations regarding all aspects of care for the patient and family shall be made in the record. When services are terminated, the record shall show the date and reason for termination.
(2) Patient records shall be retained for a period of 5 years after termination of hospice services, unless otherwise provided by law. In the case of a patient who is a minor, the 5-year period shall begin on the date the patient reaches or would have reached the age of majority.
(3) Patient records of care are confidential. A hospice may not release a record or any portion thereof, unless:
(a) A patient or legal guardian has given express written informed consent;
(b) A court of competent jurisdiction has so ordered; or
(c) A state or federal agency, acting under its statutory authority, requires submission of aggregate statistical data. Any information obtained from patient records by a state agency pursuant to its statutory authority is confidential and exempt from the provisions of s. 119.07(1).
History.—s. 11, ch. 79-186; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 12, 14, ch. 93-179; s. 232, ch. 96-406.
PART V
INTERMEDIATE, SPECIAL SERVICES, ANDTRANSITIONAL LIVING FACILITIES
400.701 Intermediate care facilities; intent.
400.801 Homes for special services.
400.805 Transitional living facilities.
400.701 Intermediate care facilities; intent.—The Legislature recognizes the need to develop a continuum of long-term care in this state to meet the needs of the elderly and disabled persons. The Legislature finds that there is a gap between the level of care provided in assisted living facilities and in nursing homes. The Legislature finds that exploration of intermediate-level care facilities which would fill the gap between assisted living facilities and nursing homes, where both the federal and state government share the cost of providing care, is an appropriate option to explore in the continuum of care.
History.—s. 38, ch. 89-294; s. 25, ch. 95-210.
400.801 Homes for special services.—
(1) As used in this section, the term:
(a) “Agency” means the “Agency for Health Care Administration.”
(b) “Home for special services” means a site licensed by the agency prior to January 1, 2006, where specialized health care services are provided, including personal and custodial care, but not continuous nursing services.
(2)(a) The requirements of part II of chapter 408 apply to the provision of services that require licensure pursuant to this section and part II of chapter 408 and entities licensed by or applying for licensure from the agency pursuant to this section. A license issued by the agency is required in order to operate a home for special services in this state.
(b) The agency shall require level 2 background screening for personnel as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809.
(3) In accordance with s. 408.805, an applicant or licensee shall pay a fee for each license application submitted under this part, part II of chapter 408, and applicable rules. The amount of the fee shall be established by rule and may not be more than $2,000 per biennium.
(4) The agency may adopt rules for implementing and enforcing this section and part II of chapter 408.
(5)(a) In addition to the requirements of part II of chapter 408, a violation of any provision of this section, part II of chapter 408, or applicable rules is punishable by payment of an administrative fine not to exceed $5,000.
(b) A violation of s. 408.812 or rules adopted under that section is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Each day of continuing violation is a separate offense.
History.—s. 35, ch. 93-217; ss. 59, 71, ch. 98-171; s. 85, ch. 2000-349; s. 25, ch. 2001-53; s. 2, ch. 2001-67; s. 148, ch. 2001-277; s. 51, ch. 2004-267; s. 6, ch. 2006-192; s. 90, ch. 2007-230; s. 10, ch. 2010-114.
400.805 Transitional living facilities.—
(1) As used in this section, the term:
(a) “Agency” means the Agency for Health Care Administration.
(b) “Department” means the Department of Health.
(c) “Transitional living facility” means a site where specialized health care services are provided, including, but not limited to, rehabilitative services, community reentry training, aids for independent living, and counseling to spinal-cord-injured persons and head-injured persons. This term does not include a hospital licensed under chapter 395 or any federally operated hospital or facility.
(2)(a) The requirements of part II of chapter 408 apply to the provision of services that require licensure pursuant to this section and part II of chapter 408 and to entities licensed by or applying for such licensure from the agency pursuant to this section. A license issued by the agency is required for the operation of a transitional living facility in this state.
(b) In accordance with this section, an applicant or a licensee shall pay a fee for each license application submitted under this part, part II of chapter 408, and applicable rules. The fee shall consist of a $4,000 license fee and a $78.50 per bed fee per biennium.
(c) The agency may not issue a license to an applicant until the agency receives notice from the department as provided in paragraph (3)(b).
(d) The agency shall require level 2 background screening for personnel as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809.
(3)(a) The agency shall adopt rules in consultation with the department governing the physical plant of transitional living facilities and the fiscal management of transitional living facilities.
(b) The department shall adopt rules in consultation with the agency governing the services provided to clients of transitional living facilities. The department shall enforce all requirements for providing services to the facility’s clients. The department must notify the agency when it determines that an applicant for licensure meets the service requirements adopted by the department.
(c) The agency and the department shall enforce requirements under this section and part II of chapter 408, as such requirements relate to them respectively, and their respective adopted rules.
(4) In accordance with s. 408.811, any designated officer or employee of the agency, of the state, or of the local fire marshal may enter unannounced upon and into the premises of any facility licensed under this section in order to determine the state of compliance with this section, part II of chapter 408, and applicable rules.
(5)(a) In accordance with part II of chapter 408, a violation of any provision of this section, part II of chapter 408, or applicable rules is punishable by payment of an administrative or a civil penalty fine not to exceed $5,000.
(b) Unlicensed activity pursuant to s. 408.812 is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Each day of a continuing violation is a separate offense.
(6) The agency may adopt rules to administer the requirements of part II of chapter 408.
History.—s. 36, ch. 93-217; s. 1, ch. 98-12; ss. 60, 71, ch. 98-171; s. 16, ch. 99-240; s. 22, ch. 2000-153; s. 86, ch. 2000-349; s. 25, ch. 2001-53; s. 2, ch. 2001-67; s. 148, ch. 2001-277; s. 52, ch. 2004-267; s. 91, ch. 2007-230; s. 11, ch. 2010-114.
PART VI
PRESCRIBED PEDIATRICEXTENDED CARE CENTERS
400.901 Legislative intent.
400.902 Definitions.
400.903 PPEC centers to be licensed; exemptions.
400.905 License required; fee; exemption.
400.906 Initial application for license; zoning.
400.9065 Background screening.
400.907 Denial, suspension, revocation of licensure; administrative fines; grounds.
400.908 Administrative fines; disposition of fees and fines.
400.912 Closing of a PPEC center.
400.914 Rules establishing standards.
400.915 Construction and renovation; requirements.
400.916 Prohibited acts; penalty for violation.
400.901 Legislative intent.—It is the intent of the Legislature to develop, establish, and enforce licensure and basic standards for prescribed pediatric extended care centers in order to assure that the centers provide the necessary family-centered medical, developmental, physiological, nutritional, psychosocial, and family training services.
History.—ss. 1, 17, ch. 87-290; s. 14, ch. 93-66; s. 19, ch. 98-288.
Note.—Former s. 391.201.
400.902 Definitions.—As used in this part, the term:
(1) “Prescribed pediatric extended care center,” hereinafter referred to as a “PPEC center,” means any building or buildings, or other place, whether operated for profit or not, which undertakes through its ownership or management to provide basic nonresidential services to three or more medically dependent or technologically dependent children who are not related to the owner or operator by blood, marriage, or adoption and who require such services. Infants and children considered for admission to a PPEC center must have complex medical conditions that require continual care. Prerequisites for admission are a prescription from the child’s attending physician and consent of a parent or guardian.
(2) “Agency” means the Agency for Health Care Administration.
(3) “Basic services” includes, but is not limited to, development, implementation, and monitoring of a comprehensive protocol of care, developed in conjunction with the parent or guardian, which specifies the medical, nursing, psychosocial, and developmental therapies required by the medically dependent or technologically dependent child served as well as the caregiver training needs of the child’s legal guardian.
(4) “Owner or operator” means a licensee.
(5) “Medical records” means medical records maintained in accordance with accepted professional standards and practices as specified in the rules implementing this part.
(6) “Medically dependent or technologically dependent child” means a child who because of a medical condition requires continuous therapeutic interventions or skilled nursing supervision which must be prescribed by a licensed physician and administered by, or under the direct supervision of, a licensed registered nurse.
(7) “Supportive services or contracted services” include, but are not limited to, speech therapy, occupational therapy, physical therapy, social work, developmental, child life, and psychological services.
History.—ss. 2, 17, ch. 87-290; ss. 1, 14, ch. 93-66; s. 19, ch. 98-288; s. 92, ch. 2007-230.
Note.—Former s. 391.202.
400.903 PPEC centers to be licensed; exemptions.—
(1) For the administration of this part, facilities to be licensed by the agency shall include all PPEC centers as defined in this part which are not otherwise exempt as provided in subsection (2).
(2) A facility, institution, or other place operated by the Federal Government or any agency thereof is exempt from the provisions of this part.
(3) The requirements of part II of chapter 408 apply to the provision of services that require licensure pursuant to this part and part II of chapter 408 and to entities licensed by or applying for such licensure from the agency pursuant to this part. A license issued by the agency is required for the operation of a PPEC center in this state.
History.—ss. 3, 4, 17, ch. 87-290; ss. 2, 14, ch. 93-66; s. 19, ch. 98-288; s. 93, ch. 2007-230.
Note.—Former s. 391.203.
400.905 License required; fee; exemption.—
(1) In addition to the requirements of part II of chapter 408, separate licenses are required for PPEC centers maintained on separate premises, even though they are operated under the same management. Separate licenses are not required for separate buildings on the same grounds.
(2) In accordance with s. 408.805, an applicant or licensee shall pay a fee for each license application submitted under this part, part II of chapter 408, and applicable rules. The amount of the fee shall be established by rule and may not be less than $1,000 or more than $3,000 per biennium.
(3) County-operated or municipally operated PPEC centers applying for licensure under this part are exempt from the payment of license fees.
History.—ss. 5, 17, ch. 87-290; ss. 3, 14, ch. 93-66; s. 19, ch. 98-288; s. 94, ch. 2007-230.
Note.—Former s. 391.205.
400.906 Initial application for license; zoning.—In addition to the requirements of part II of chapter 408, the application must contain the location of the facility for which a license is sought and documentation, signed by the appropriate local government official, which states that the applicant has met local zoning requirements.
History.—ss. 6, 17, ch. 87-290; ss. 4, 14, ch. 93-66; ss. 22, 71, ch. 98-171; ss. 19, 20, ch. 98-288; s. 87, ch. 2000-349; s. 25, ch. 2001-53; s. 2, ch. 2001-67; s. 148, ch. 2001-277; s. 53, ch. 2004-267; s. 95, ch. 2007-230.
Note.—Former s. 391.206.
400.9065 Background screening.—The agency shall require level 2 background screening for personnel as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809.
History.—s. 12, ch. 2010-114.
400.907 Denial, suspension, revocation of licensure; administrative fines; grounds.—
(1) In accordance with part II of chapter 408, the agency may deny, revoke, and suspend a license and impose an administrative fine for the violation of any provision of this part, part II of chapter 408, or applicable rules.
(2) Any of the following actions by a PPEC center or its employee is grounds for action by the agency against a PPEC center or its employee:
(a) An intentional or negligent act materially affecting the health or safety of children in the PPEC center.
(b) A violation of the provisions of this part, part II of chapter 408, or applicable rules.
(c) Multiple and repeated violations of this part or part II of chapter 408 or of minimum standards or rules adopted pursuant to this part or part II of chapter 408.
History.—ss. 7, 17, ch. 87-290; ss. 5, 14, ch. 93-66; s. 19, ch. 98-288; s. 96, ch. 2007-230.
Note.—Former s. 391.207.
400.908 Administrative fines; disposition of fees and fines.—
(1)(a) If the agency determines that a PPEC center is not in compliance with this part, part II of chapter 408, or applicable rules, the agency may request that the PPEC center submit a corrective action plan that demonstrates a good faith effort to remedy each violation by a specific date, subject to the approval of the agency.
(b) In accordance with part II of chapter 408, the agency may fine a PPEC center or employee found in violation of this part, part II of chapter 408, or applicable rules, in an amount not to exceed $500 for each violation. Such fine may not exceed $5,000 in the aggregate.
(c) The failure to correct a violation by the date set by the agency, or the failure to comply with an approved corrective action plan, is a separate violation for each day such failure continues, unless the agency approves an extension to a specific date.
(2) In determining if a fine is to be imposed and in fixing the amount of any fine, the agency shall consider the following factors:
(a) The gravity of the violation, including the probability that death or serious physical or emotional harm to a child will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes or rules were violated.
(b) Actions taken by the owner or operator to correct violations.
(c) Any previous violations.
(d) The financial benefit to the PPEC center of committing or continuing the violation.
History.—ss. 8, 17, ch. 87-290; s. 58, ch. 91-221; ss. 6, 14, ch. 93-66; s. 171, ch. 98-166; s. 19, ch. 98-288; s. 97, ch. 2007-230.
Note.—Former s. 391.208.
400.912 Closing of a PPEC center.—Whenever a PPEC center voluntarily discontinues operation, it shall, at least 30 days before the discontinuance of operation, inform each child’s legal guardian of the fact and the proposed time of such discontinuance.
History.—ss. 12, 17, ch. 87-290; ss. 9, 14, ch. 93-66; s. 19, ch. 98-288; s. 100, ch. 2007-230.
Note.—Former s. 391.212.
400.914 Rules establishing standards.—
(1) Pursuant to the intention of the Legislature to provide safe and sanitary facilities and healthful programs, the agency in conjunction with the Division of Children’s Medical Services of the Department of Health shall adopt and publish rules to implement the provisions of this part and part II of chapter 408, which shall include reasonable and fair standards. Any conflict between these standards and those that may be set forth in local, county, or city ordinances shall be resolved in favor of those having statewide effect. Such standards shall relate to:
(a) The assurance that PPEC services are family centered and provide individualized medical, developmental, and family training services.
(b) The maintenance of PPEC centers, not in conflict with the provisions of chapter 553 and based upon the size of the structure and number of children, relating to plumbing, heating, lighting, ventilation, and other building conditions, including adequate space, which will ensure the health, safety, comfort, and protection from fire of the children served.
(c) The appropriate provisions of the most recent edition of the “Life Safety Code” (NFPA-101) shall be applied.
(d) The number and qualifications of all personnel who have responsibility for the care of the children served.
(e) All sanitary conditions within the PPEC center and its surroundings, including water supply, sewage disposal, food handling, and general hygiene, and maintenance thereof, which will ensure the health and comfort of children served.
(f) Programs and basic services promoting and maintaining the health and development of the children served and meeting the training needs of the children’s legal guardians.
(g) Supportive, contracted, other operational, and transportation services.
(h) Maintenance of appropriate medical records, data, and information relative to the children and programs. Such records shall be maintained in the facility for inspection by the agency.
(2) The agency shall adopt rules to ensure that:
(a) No child attends a PPEC center for more than 12 hours within a 24-hour period.
(b) No PPEC center provides services other than those provided to medically or technologically dependent children.
History.—ss. 14, 17, ch. 87-290; ss. 11, 14, ch. 93-66; s. 89, ch. 97-101; s. 19, ch. 98-288; s. 128, ch. 99-8; s. 23, ch. 2000-153; s. 102, ch. 2007-230; s. 91, ch. 2012-184.
Note.—Former s. 391.214.
400.915 Construction and renovation; requirements.—The requirements for the construction or renovation of a PPEC center shall comply with:
(1) The provisions of chapter 553, which pertain to building construction standards, including plumbing, electrical code, glass, manufactured buildings, accessibility for the physically disabled;
(2) The provisions of s. 633.022 and applicable rules pertaining to physical standards for nonresidential child care facilities; and
(3) The standards or rules adopted pursuant to this part and part II of chapter 408.
History.—ss. 15, 17, ch. 87-290; ss. 12, 14, ch. 93-66; s. 19, ch. 98-288; s. 103, ch. 2007-230; s. 16, ch. 2012-160.
Note.—Former s. 391.215.
400.916 Prohibited acts; penalty for violation.—Any person who violates s. 408.812 commits a misdemeanor of the second degree, punishable as provided in s. 775.083. Each day of continuing violation is a separate offense.
History.—ss. 16, 17, ch. 87-290; s. 14, ch. 93-66; s. 19, ch. 98-288; s. 104, ch. 2007-230.
Note.—Former s. 391.216.
PART VII
HOME MEDICAL EQUIPMENT PROVIDERS400.92 Legislative intent.
400.925 Definitions.
400.93 Licensure required; exemptions; unlawful acts; penalties.
400.931 Application for license; fee.
400.932 Administrative penalties.
400.933 Licensure inspections and investigations.
400.934 Minimum standards.
400.935 Rules establishing minimum standards.
400.94 Patient records.
400.945 Public records exemption.
400.953 Background screening of home medical equipment provider personnel.
400.957 Prohibited acts.
400.92 Legislative intent.—It is the intent of the Legislature to provide for the licensure of home medical equipment providers and to provide for the development, establishment, and enforcement of basic standards that will ensure quality home medical equipment, products, and services.
History.—s. 1, ch. 99-189.
400.925 Definitions.—As used in this part, the term:
(1) “Accrediting organizations” means the Joint Commission on Accreditation of Healthcare Organizations or other national accreditation agencies whose standards for accreditation are comparable to those required by this part for licensure.
(2) “Agency” means the Agency for Health Care Administration.
(3) “Consumer” or “patient” means any person who uses home medical equipment in his or her place of residence.
(4) “Department” means the Department of Children and Family Services.
(5) “General manager” means the individual who has the general administrative charge of the premises of a licensed home medical equipment provider.
(6) “Home medical equipment” includes any product as defined by the Federal Drug Administration’s Drugs, Devices and Cosmetics Act, any products reimbursed under the Medicare Part B Durable Medical Equipment benefits, or any products reimbursed under the Florida Medicaid durable medical equipment program. Home medical equipment includes oxygen and related respiratory equipment; manual, motorized, or customized wheelchairs and related seating and positioning, but does not include prosthetics or orthotics or any splints, braces, or aids custom fabricated by a licensed health care practitioner; motorized scooters; personal transfer systems; and specialty beds, for use by a person with a medical need.
(7) “Home medical equipment provider” means any person or entity that sells or rents or offers to sell or rent to or for a consumer:
(a) Any home medical equipment and services; or
(b) Home medical equipment that requires any home medical equipment services.
(8) “Home medical equipment provider personnel” means persons who are employed by or under contract with a home medical equipment provider.
(9) “Home medical equipment services” means equipment management and consumer instruction, including selection, delivery, setup, and maintenance of equipment, and other related services for the use of home medical equipment in the consumer’s regular or temporary place of residence.
(10) “Life-supporting or life-sustaining equipment” means a device that is essential to, or that yields information that is essential to, the restoration or continuation of a bodily function important to the continuation of human life. Life-supporting or life-sustaining equipment includes apnea monitors, enteral feeding pumps, infusion pumps, portable home dialysis equipment, and ventilator equipment and supplies for all related equipment, including oxygen equipment and related respiratory equipment.
(11) “Moratorium” means a mandated temporary cessation or suspension of the sale, rental, or offering of equipment after the imposition of the moratorium, in accordance with part II of chapter 408. Services related to equipment sold or rented prior to the moratorium must be continued without interruption, unless determined otherwise by the agency.
(12) “Premises” means those buildings and equipment which are located at the address of the licensed home medical equipment provider for the provision of home medical equipment services, which are in such reasonable proximity as to appear to the public to be a single provider location, and which comply with zoning ordinances.
(13) “Residence” means the consumer’s home or place of residence, which may include nursing homes, assisted living facilities, transitional living facilities, adult family-care homes, or other congregate residential facilities.
History.—s. 1, ch. 99-189; s. 1, ch. 2001-214; s. 11, ch. 2002-400; s. 25, ch. 2006-71; s. 106, ch. 2007-230.
400.93 Licensure required; exemptions; unlawful acts; penalties.—
(1) Any person or entity that holds itself out to the public as providing home medical equipment and services or accepts physician orders for home medical equipment and services is subject to licensure under this part.
(2) Any person or entity that holds itself out to the public as providing home medical equipment that typically requires home medical services is subject to licensure under this part.
(3) The requirements of part II of chapter 408 apply to the provision of services that require licensure pursuant to this part and part II of chapter 408 and to entities licensed by or applying for such licensure from the agency pursuant to this part. A license issued by the agency is required in order to provide home medical equipment and services in this state.
(4) A separate license is required of all home medical equipment providers operating on separate premises, even if the providers are operated under the same management.
(5) The following are exempt from home medical equipment provider licensure, unless they have a separate company, corporation, or division that is in the business of providing home medical equipment and services for sale or rent to consumers at their regular or temporary place of residence pursuant to the provisions of this part:
(a) Providers operated by the Department of Health or Federal Government.
(b) Nursing homes licensed under part II.
(c) Assisted living facilities licensed under chapter 429, when serving their residents.
(d) Home health agencies licensed under part III.
(e) Hospices licensed under part IV.
(f) Intermediate care facilities, homes for special services, and transitional living facilities licensed under part V.
(g) Hospitals and ambulatory surgical centers licensed under chapter 395.
(h) Manufacturers and wholesale distributors when not selling directly to consumers.
(i) Licensed health care practitioners who utilize home medical equipment in the course of their practice, but do not sell or rent home medical equipment to their patients.
(j) Pharmacies licensed under chapter 465.
(6)(a) A violation of s. 408.812 is a deceptive and unfair trade practice and constitutes a violation of the Florida Deceptive and Unfair Trade Practices Act.
(b) A person who violates s. 408.812 commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. A person who commits a second or subsequent violation commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Each day of continuing violation constitutes a separate offense.
History.—s. 1, ch. 99-189; s. 2, ch. 2001-214; s. 68, ch. 2006-197; s. 107, ch. 2007-230.
400.931 Application for license; fee.—
(1) In addition to the requirements of part II of chapter 408, the applicant must file with the application satisfactory proof that the home medical equipment provider is in compliance with this part and applicable rules, including:
(a) A report, by category, of the equipment to be provided, indicating those offered either directly by the applicant or through contractual arrangements with existing providers. Categories of equipment include:
1. Respiratory modalities.
2. Ambulation aids.
3. Mobility aids.
4. Sickroom setup.
5. Disposables.
(b) A report, by category, of the services to be provided, indicating those offered either directly by the applicant or through contractual arrangements with existing providers. Categories of services include:
1. Intake.
2. Equipment selection.
3. Delivery.
4. Setup and installation.
5. Patient training.
6. Ongoing service and maintenance.
7. Retrieval.
(c) A listing of those with whom the applicant contracts, both the providers the applicant uses to provide equipment or services to its consumers and the providers for whom the applicant provides services or equipment.
(2) An applicant for initial licensure, change of ownership, or license renewal to operate a licensed home medical equipment provider at a location outside the state must submit documentation of accreditation or an application for accreditation from an accrediting organization that is recognized by the agency. An applicant that has applied for accreditation must provide proof of accreditation that is not conditional or provisional within 120 days after the date the agency receives the application for licensure, or the application shall be withdrawn from further consideration. Such accreditation must be maintained by the home medical equipment provider in order to maintain licensure.
(3) As specified in part II of chapter 408, the home medical equipment provider must also obtain and maintain professional and commercial liability insurance. Proof of liability insurance, as defined in s. 624.605, must be submitted with the application. The agency shall set the required amounts of liability insurance by rule, but the required amount must not be less than $250,000 per claim. In the case of contracted services, it is required that the contractor have liability insurance not less than $250,000 per claim.
(4) When a change of the general manager of a home medical equipment provider occurs, the licensee must notify the agency of the change within 45 days.
(5) In accordance with s. 408.805, an applicant or a licensee shall pay a fee for each license application submitted under this part, part II of chapter 408, and applicable rules. The amount of the fee shall be established by rule and may not exceed $300 per biennium. The agency shall set the fees in an amount that is sufficient to cover its costs in carrying out its responsibilities under this part. However, state, county, or municipal governments applying for licenses under this part are exempt from the payment of license fees.
(6) An applicant for initial licensure, renewal, or change of ownership shall also pay an inspection fee not to exceed $400, which shall be paid by all applicants except those not subject to licensure inspection by the agency as described in s. 400.933.
History.—s. 1, ch. 99-189; s. 88, ch. 2000-349; s. 54, ch. 2004-267; s. 108, ch. 2007-230; s. 17, ch. 2012-160.
400.932 Administrative penalties.—
(1) The agency may deny, revoke, and suspend a license and impose an administrative fine not to exceed $5,000 per violation.
(2) Any of the following actions by an employee of a home medical equipment provider are grounds for administrative action or penalties by the agency:
(a) Violation of this part, part II of chapter 408, or applicable rules.
(b) An intentional, reckless, or negligent act that materially affects the health or safety of a patient.
(3) The agency may deny or revoke the license of any applicant that:
(a) Has been previously found by any professional licensing, certifying, or standards board or agency to have violated the standards or conditions relating to licensure or certification or the quality of services provided. “Professional licensing, certifying, or standards board or agency” shall include, but is not limited to, practitioners, health care facilities, programs, or services, or residential care, treatment programs, or other human services; or
(b) Has been or is currently excluded, suspended, or terminated from, or has involuntarily withdrawn from, any governmental or private health care or health insurance program.
History.—s. 1, ch. 99-189; s. 109, ch. 2007-230.
400.933 Licensure inspections and investigations.—
(1) In addition to the requirements of s. 408.811, the agency shall make or cause to be made such inspections and investigations as it considers necessary, including:
(a) Licensure inspections.
(b) Inspections directed by the federal Centers for Medicare and Medicaid Services.
(c) Licensure complaint investigations, including full licensure investigations with a review of all licensure standards as outlined in the administrative rules. Complaints received by the agency from individuals, organizations, or other sources are subject to review and investigation by the agency.
(2) The agency shall accept, in lieu of its own periodic inspections for licensure, submission of the following:
(a) The survey or inspection of an accrediting organization, provided the accreditation of the licensed home medical equipment provider is not provisional and provided the licensed home medical equipment provider authorizes release of, and the agency receives the report of, the accrediting organization; or
(b) A copy of a valid medical oxygen retail establishment permit issued by the Department of Health, pursuant to chapter 499.
History.—s. 1, ch. 99-189; s. 110, ch. 2007-230.
400.934 Minimum standards.—As a requirement of licensure, home medical equipment providers shall:
(1) Offer and provide home medical equipment and services, as necessary, to consumers who purchase or rent equipment that requires such services.
(2) Provide at least one category of equipment directly, filling orders from its own inventory.
(3) Respond to orders received for other equipment by filling those orders from its own inventory or inventory from other companies with which it has contracted to fill such orders; or customizing or fitting items for sale from supplies purchased under contract.
(4) Maintain trained personnel to coordinate order fulfillment and schedule timely equipment and service delivery.
(5) As necessary in relation to the sophistication of the equipment and services being provided, ensure that delivery personnel are appropriately trained to conduct an environment and equipment compatibility assessment; appropriately and safely set up the equipment; instruct patients and caregivers in the safe operation and client maintenance of the equipment; and recognize when additional education or followup patient compliance monitoring is appropriate.
(6) Ensure that patients are made aware of service hours and emergency service procedures.
(7) At the time of the initial delivery, set up an appropriate followup home medical equipment service schedule as needed for such times as, but not limited to, periodic maintenance, supply delivery, and other related activities.
(8) Arrange for emergency service after normal business hours; provide refresher and review training for appropriate personnel; establish a system for resolution of complaints and service problems; and provide for timely replacement or delivery of disposable or consumable equipment supplies.
(9) Honor all warranties expressed and implied under applicable state law.
(10) Answer any questions or complaints a consumer has about an item or the use of an item that the consumer purchases or rents.
(11) Maintain and repair directly, or through a service contract with another company, items rented to consumers.
(12) Accept returns of substandard or unsuitable items from consumers. As used in this subsection, the term “substandard” means less than full quality for the particular item and the term “unsuitable” means inappropriate for the consumer at the time it was fitted or sold.
(13) Disclose consumer information to each consumer who rents or purchases items, including all applicable warranty information. This information consists of the provider standards to which the item must conform.
(14) Maintain patient payment and service records in accordance with the requirements of this part.
(15)(a) Designate appropriate staff as intake coordinators, and ensure that order intake personnel are appropriately trained in the types of equipment and products, commonly occurring medical conditions, service procedures, third-party billing, and insurance requirements and coverage.
(b) Train intake coordinators in a basic understanding of the following areas: dealing with patient and caregiver needs; other, nonhome medical equipment provider services as they relate to home medical equipment services and home care patient crisis management.
(16) Establish procedures for maintaining a record of the employment history, including background screening as required by ss. 400.953 and 408.809(1) and chapter 435 of all home medical equipment provider personnel. A home medical equipment provider must require its personnel to submit an employment history to the home medical equipment provider and must verify the employment history for at least the previous 5 years, unless through diligent efforts such verification is not possible. There is no monetary liability on the part of, and no cause of action for damages arising against a former employer, a prospective employee, or a prospective independent contractor with a licensed home medical equipment provider, who reasonably and in good faith communicates his or her honest opinions about a former employee’s job performance. This subsection does not affect the official immunity of an officer or employee of a public corporation.
(17) Upon request by the consumer or as otherwise required by state law and rules, or federal law and regulations, assist consumers with meeting the necessary filing requirements to obtain third-party payment to which a consumer may be entitled.
(18) Maintain safe premises.
(19) Comply with all other state and federal laws.
(20)(a) Prepare and maintain a comprehensive emergency management plan that meets minimum criteria established by agency rule under s. 400.935. The plan shall be updated annually and shall provide for continuing home medical equipment services for life-supporting or life-sustaining equipment, as defined in s. 400.925, during an emergency that interrupts home medical equipment services in a patient’s home. The plan shall include:
1. The means by which the home medical equipment provider will continue to provide equipment to perform the same type and quantity of services to its patients who evacuate to special needs shelters which were being provided to those patients prior to evacuation.
2. The means by which the home medical equipment provider establishes and maintains an effective response to emergencies and disasters, including plans for:
a. Notification of staff when emergency response measures are initiated.
b. Communication between staff members, county health departments, and local emergency management agencies, which includes provisions for a backup communications system.
c. Identification of resources necessary to continue essential care or services or referrals to other organizations subject to written agreement.
d. Contacting and prioritizing patients in need of continued medical equipment services and supplies.
(b) The plan is subject to review and approval by the county health department. During its review, the county health department shall contact state and local health and medical stakeholders when necessary. The county health department shall complete its review to ensure that the plan is in accordance with the criteria in the Agency for Health Care Administration rules within 90 days after receipt of the plan. If a home medical equipment provider fails to submit a plan or fails to submit requested information or revisions to the county health department within 30 days after written notification from the county health department, the county health department shall notify the Agency for Health Care Administration. The agency shall notify the home medical equipment provider that such failure constitutes a deficiency, subject to a fine of $5,000 per occurrence. If the plan is not submitted, information is not provided, or revisions are not made as requested, the agency may impose the fine.
(21) Each home medical equipment provider shall maintain a current prioritized list of patients who need continued services during an emergency. The list shall indicate the means by which services shall be continued for each patient in the event of an emergency or disaster, whether the patient is to be transported to a special needs shelter, and whether the patient has life-supporting or life-sustaining equipment, including the specific type of equipment and related supplies. The list shall be furnished to county health departments and local emergency management agencies upon request.
(22) Home medical equipment providers may establish links to local emergency operations centers to determine a mechanism by which to approach specific areas within a disaster area in order for the provider to reach its patients.
History.—s. 1, ch. 99-189; s. 26, ch. 2006-71; s. 13, ch. 2010-114.
400.935 Rules establishing minimum standards.—The agency shall adopt, publish, and enforce rules to implement this part and part II of chapter 408, which must provide reasonable and fair minimum standards relating to:
(1) The qualifications and minimum training requirements of all home medical equipment provider personnel.
(2) Financial ability to operate.
(3) The administration of the home medical equipment provider.
(4) Procedures for maintaining patient records.
(5) Ensuring that the home medical equipment and services provided by a home medical equipment provider are in accordance with the plan of treatment established for each patient, when provided as a part of a plan of treatment.
(6) Contractual arrangements for the provision of home medical equipment and services by providers not employed by the home medical equipment provider providing for the consumer’s needs.
(7) Physical location and zoning requirements.
(8) Home medical equipment requiring home medical equipment services.
(9) Preparation of the comprehensive emergency management plan under s. 400.934 and the establishment of minimum criteria for the plan, including the maintenance of patient equipment and supply lists that can accompany patients who are transported from their homes. Such rules shall be formulated in consultation with the Department of Health and the Division of Emergency Management.
History.—s. 1, ch. 99-189; s. 27, ch. 2006-71; s. 111, ch. 2007-230; s. 279, ch. 2011-142.
400.94 Patient records.—
(1) The home medical equipment provider must maintain, for each patient, a patient record that includes the home medical equipment and services the home medical equipment provider has provided. Such records must contain:
(a) Any physician’s order or certificate of medical necessity, if the equipment was ordered by a physician.
(b) Signed and dated delivery slips verifying delivery.
(c) Notes reflecting all services and maintenance performed, and any equipment exchanges.
(d) The date on which rental equipment was retrieved.
(e) Such other information as is appropriate to specific patients in light of the particular equipment provided to them.
(2) Such records are considered patient records under s. 456.057 and must be maintained by the home medical equipment provider for 5 years following termination of services. If a patient transfers to another home medical equipment provider, a copy of his or her record must be provided to the other home medical equipment provider, upon request.
History.—s. 1, ch. 99-189; s. 18, ch. 2000-160.
400.945 Public records exemption.—Medical and personal identifying information about patients of a home medical equipment provider which is received by the licensing agency through reports or inspection is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
History.—s. 1, ch. 99-317; s. 1, ch. 2004-304.
400.953 Background screening of home medical equipment provider personnel.—The agency shall require level 2 background screening for personnel as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809.
History.—s. 1, ch. 99-189; s. 90, ch. 2000-349; s. 27, ch. 2004-267; s. 109, ch. 2006-120; s. 14, ch. 2010-114.
400.957 Prohibited acts.—Compliance with state and federal laws regarding prohibited patient referrals and rebates shall be a condition of licensure.
History.—s. 1, ch. 99-189.
PART VIII
INTERMEDIATE CARE FACILITIES FORDEVELOPMENTALLY DISABLED PERSONS
400.960 Definitions.
400.962 License required; license application.
400.964 Personnel screening requirement.
400.966 Receivership proceedings.
400.967 Rules and classification of deficiencies.
400.968 Right of entry.
400.9685 Administration of medication.
400.969 Violation of part; penalties.
400.960 Definitions.—As used in this part, the term:
(1) “Active treatment” means the provision of services by an interdisciplinary team which are necessary to maximize a client’s individual independence or prevent regression or loss of functional status.
(2) “Agency” means the Agency for Health Care Administration.
(3) “Autism” has the same meaning as in s. 393.063.
(4) “Cerebral palsy” has the same meaning as in s. 393.063.
(5) “Client” means any person determined by the Agency for Persons with Disabilities to be eligible for developmental services.
(6) “Developmental disability” has the same meaning as in s. 393.063.
(7) “Direct service provider” means a person 18 years of age or older who has direct contact with individuals with developmental disabilities and who is unrelated to the individuals with developmental disabilities.
(8) “Intermediate care facility for the developmentally disabled” means a residential facility licensed and certified in accordance with state law, and certified by the Federal Government, pursuant to the Social Security Act, as a provider of Medicaid services to persons with developmental disabilities.
(9) “Prader-Willi syndrome” has the same meaning as in s. 393.063.
(10)(a) “Restraint” means a physical device, method, or drug used to control behavior. A physical restraint is any manual method or physical or mechanical device, material, or equipment attached or adjacent to the individual’s body so that he or she cannot easily remove the restraint and which restricts freedom of movement or normal access to one’s body.
(b) A drug used as a restraint is a medication used to control the person’s behavior or to restrict his or her freedom of movement. Physically holding a person during a procedure to forcibly administer psychotropic medication is a physical restraint.
(c) Restraint does not include physical devices, such as orthopedically prescribed appliances, surgical dressings and bandages, supportive body bands, or other physical holding when necessary for routine physical examinations and tests; for purposes of orthopedic, surgical, or other similar medical treatment; when used to provide support for the achievement of functional body position or proper balance; or when used to protect a person from falling out of bed.
(11) “Retardation” has the same meaning as in s. 393.063.
(12) “Seclusion” means the physical segregation of a person in any fashion or the involuntary isolation of a person in a room or area from which the person is prevented from leaving. The prevention may be by physical barrier or by a staff member who is acting in a manner, or who is physically situated, so as to prevent the person from leaving the room or area. For purposes of this part, the term does not mean isolation due to a person’s medical condition or symptoms.
(13) “Spina bifida” has the same meaning as in s. 393.063.
History.—s. 9, ch. 99-144; s. 42, ch. 2006-227.
400.962 License required; license application.—
(1) The requirements of part II of chapter 408 apply to the provision of services that require licensure pursuant to this part and part II of chapter 408 and to entities licensed by or applying for such licensure from the Agency for Health Care Administration pursuant to this part. A license issued by the agency is required in order to operate an intermediate care facility for the developmentally disabled in this state.
(2) Separate licenses are required for facilities maintained on separate premises even if operated under the same management. However, a separate license is not required for separate buildings on the same grounds.
(3) In accordance with s. 408.805, an applicant or licensee shall pay a fee for each license application submitted under this part, part II of chapter 408, and applicable rules. The amount of the fee shall be $234 per bed unless modified by rule. The application must indicate the location of the facility for which a license is sought and that such location conforms to the local zoning ordinances.
(4) The applicant must demonstrate that sufficient numbers of staff, qualified by training or experience, will be employed to properly care for the type and number of residents who will reside in the facility.
(5) The applicant must agree to provide or arrange for active treatment services by an interdisciplinary team to maximize individual independence or prevent regression or loss of functional status. Standards for active treatment shall be adopted by the Agency for Health Care Administration by rule pursuant to ss. 120.536(1) and 120.54. Active treatment services shall be provided in accordance with the individual support plan and shall be reimbursed as part of the per diem rate as paid under the Medicaid program.
History.—s. 9, ch. 99-144; s. 92, ch. 2000-349; s. 8, ch. 2000-350; s. 59, ch. 2001-45; s. 421, ch. 2003-261; s. 55, ch. 2004-267; s. 69, ch. 2006-197; s. 43, ch. 2006-227; s. 115, ch. 2007-230.
400.964 Personnel screening requirement.—The agency shall require level 2 background screening for personnel as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809.
History.—s. 9, ch. 99-144; s. 93, ch. 2000-349; s. 11, ch. 2004-267; s. 16, ch. 2010-114.
400.966 Receivership proceedings.—
(1) The agency may petition a court of competent jurisdiction for the appointment of a receiver for an intermediate care facility for the developmentally disabled which is owned and operated by a corporation or partnership when:
(a) Any person is operating the facility without a license and refuses to apply for a license.
(b) The licensee is closing the facility or has informed the agency that it intends to close the facility, and adequate arrangements have not been made to relocate the residents within 7 days, exclusive of weekends and holidays, after the closing of the facility.
(c) The agency determines that conditions exist in the facility which present an imminent danger to the health, safety, or welfare of the residents of the facility or which present a substantial probability that death or serious physical harm would result therefrom. Whenever possible, the agency shall facilitate the continued operation of the program.
(d) The licensee cannot meet its financial obligations to provide food, shelter, care, and utilities. Evidence such as the issuance of bad checks or the accumulation of delinquent bills for such items as personnel salaries, food, drugs, or utilities constitutes prima facie evidence that the ownership of the facility lacks the financial ability to operate the home in accordance with the requirements of this part and all rules adopted under this part.
(2) The petition for receivership shall take precedence over other court business unless the court determines that some other pending proceeding, having similar statutory precedence, has priority.
(3) A hearing must be conducted within 5 days after the filing of the petition, at which time all interested parties must be given the opportunity to present evidence pertaining to the petition. The agency shall notify the owner or operator of the facility named in the petition of its filing and the date set for the hearing.
(4) The court shall grant the petition only upon finding that the health, safety, or welfare of residents of the facility would be threatened if a condition existing at the time the petition was filed is permitted to continue. A receiver may not be appointed ex parte unless the court determines that any of the conditions listed in subsection (1) exist; that the facility owner or operator cannot be found; that all reasonable means of locating the owner or operator and notifying him or her of the petition and hearing have been exhausted; or that the owner or operator after notification of the hearing chooses not to attend. After such findings, the court may appoint any person qualified by education, training, or experience to carry out the responsibilities of receiver pursuant to this section, except that the court may not appoint any owner or affiliate of the facility that is in receivership. Before the appointment as receiver of a person who is the operator, manager, or supervisor of another facility, the court must determine that the person can reasonably operate, manage, or supervise more than one facility. The receiver may be appointed for up to 90 days, with the option of petitioning the court for 30-day extensions. The receiver may be selected from a list of persons qualified to act as receivers developed by the agency and presented to the court with each petition for receivership. Under no circumstances may the agency or designated agency employee be appointed as a receiver for more than 60 days; however, the agency receiver may petition the court for 30-day extensions. The court shall grant an extension upon a showing of good cause. The agency may petition the court to appoint a substitute receiver.
(5) During the first 60 days of the receivership, the agency may not take action to decertify or revoke the license of a facility unless conditions causing imminent danger to the health and welfare of the residents exist and a receiver has been unable to remove those conditions. After the first 60 days of receivership, and every 60 days thereafter until the receivership is terminated, the agency shall submit to the court the results of an assessment of the ability of the facility to assure the safety and care of the residents. If the conditions at the facility or the intentions of the owner indicate that the purpose of the receivership is to close the facility rather than to facilitate its continued operation, the agency shall place the residents in appropriate alternative residential settings as quickly as possible. If, in the opinion of the court, the agency has not been diligent in its efforts to make adequate arrangements for placement, the court shall find the agency to be in contempt and shall order the agency to submit its plans for moving the residents.
(6) The receiver shall provide for the continued health, safety, and welfare of all residents of the facility and:
(a) Shall exercise those powers and perform those duties set out by the court.
(b) Shall operate the facility in such a manner as to assure the residents’ safety and adequate health care for the residents.
(c) Shall take such action as is reasonably necessary to protect or conserve the assets or property of the facility for which the receiver is appointed, or the proceeds from any transfer thereof, and may use them only in the performance of the powers and duties set forth in this section and by order of the court.
(d) Shall honor all leases, mortgages, and secured transactions governing the building in which the facility is located and all goods and fixtures in the building of which the receiver has taken possession, but only to the extent of payments that, in the case of a rental agreement, are for the use of the property during the period of the receivership or that, in the case of a purchase agreement, become due during the period of the receivership.
(e) May use the building, fixtures, furnishings, and any accompanying consumable goods in the provision of care and services to residents and to any other persons receiving services from the facility at the time the petition for receivership was filed. The receiver shall collect payments for all goods and services provided to residents or others during the period of the receivership at the same rate of payment charged by the owner at the time the petition for receivership was filed, or at a fair and reasonable rate otherwise approved by the court for private, paying residents. The receiver may apply to the agency for a rate increase for residents under Title XIX of the Social Security Act if the facility is not receiving the state reimbursement cap and if expenditures justify an increase in the rate.
(f) May correct or eliminate any deficiency in the structure, furnishings, or staffing of the facility which endangers the safety or health of residents while they remain in the facility, provided that the total cost of correction does not exceed $3,000. The court may order expenditures for this purpose in excess of $3,000 on application from the receiver after notice to the owner. A hearing may be requested by the owner within 72 hours.
(g) May let contracts and hire agents and employees to carry out the powers and duties of the receiver under this section.
(h) Shall have full power to direct, manage, hire, and discharge employees of the facility subject to any contract rights they may have. The receiver shall hire and pay employees at the rate of compensation, including benefits, approved by the court. Receivership does not relieve the owner of any obligations to employees which had been made before the appointment of a receiver and were not carried out by the receiver.
(i) Shall be entitled to take possession of all property or assets of residents which are in the possession of a facility or its owner. The receiver shall preserve all such property or assets and all resident records of which the receiver takes possession; and he or she shall provide for the prompt transfer of the property, assets, and records of any resident transferred to the resident’s new placement. An inventory list certified by the owner and receiver must be made when the receiver takes possession of the facility.
(7)(a) A person who is served with notice of an order of the court appointing a receiver and of the receiver’s name and address shall be liable to pay the receiver for any goods or services provided by the receiver after the date of the order if the person would have been liable for the goods or services had they been supplied by the owner. The receiver shall give a receipt for each payment and shall keep a copy of each receipt on file. The receiver shall deposit accounts received in a separate account and shall use this account for all disbursements.
(b) The receiver may bring an action to enforce the liability created by paragraph (a).
(c) A payment to the receiver of any sum owed to the facility or its owner discharges any obligation to the facility to the extent of the payment.
(8)(a) A receiver may petition the court that he or she not be required to honor any lease, mortgage, secured transaction, or other wholly or partially executory contract entered into by the owner of the facility if the rent, price, or rate of interest required to be paid under the agreement was substantially in excess of a reasonable rent, price, or rate of interest at the time the contract was entered into, or if any material provision of the agreement was unreasonable, when compared to contracts negotiated under similar conditions. Any relief in this form provided by the court shall be limited to the life of the receivership, unless otherwise determined by the court.
(b) If the receiver is in possession of real estate or goods subject to a lease, mortgage, or security interest which the receiver has obtained a court order to avoid under paragraph (a), and if the real estate or goods are necessary for the continued operation of the facility under this section, the receiver may apply to the court to set a reasonable rental, price, or rate of interest to be paid by the receiver during the duration of the receivership. The court shall hold a hearing on the application within 15 days. The receiver shall send notice of the application to any known persons who own the property involved or to the mortgage holders at least 10 days prior to the hearing. The payment by the receiver of the amount determined by the court to be reasonable is a defense to any action brought against the receiver by any person who received such notice, which action is for payment or for possession of the goods or real estate subject to the lease, mortgage, or security interest involved; but the payment does not relieve the owner of the facility of any liability for the difference between the amount paid by the receiver and the amount due under the original lease, mortgage, or security interest involved.
(9) The court shall set the compensation of the receiver, which shall be considered a necessary expense of the receivership.
(10) The court may require a receiver to post a bond.
(11) A receiver may be held liable in a personal capacity only for the receiver’s own gross negligence, intentional acts, or breach of fiduciary duty.
(12) The court may terminate a receivership when:
(a) The court determines that the receivership is no longer necessary because the conditions that gave rise to the receivership no longer exist; or
(b) All of the residents in the facility have been transferred or discharged.
(13) Within 30 days after termination of the receivership, unless this time period is extended by the court, the receiver shall give the court a complete accounting of all property of which the receiver has taken possession, of all funds collected and disbursed, and of the expenses of the receivership.
(14) This section does not relieve any owner, operator, or employee of a facility placed in receivership of any civil or criminal liability incurred, or any duty imposed by law, by reason of acts or omissions of the owner, operator, or employee before the appointment of a receiver, and this section does not suspend during the receivership any obligation of the owner, operator, or employee for payment of taxes or other operating and maintenance expenses of the facility or any obligation of the owner, operator, or employee or any other person for the payment of mortgages or liens. The owner shall retain the right to sell or mortgage any facility under receivership, subject to the approval of the court that ordered the receivership. A receivership imposed under this section is subject to the Health Care Trust Fund pursuant to s. 400.063. The owner of a facility placed in receivership by the court is liable for all expenses and costs incurred by the Health Care Trust Fund which occur as a result of the receivership.
History.—s. 9, ch. 99-144; s. 16, ch. 2008-9.
400.967 Rules and classification of deficiencies.—
(1) It is the intent of the Legislature that rules adopted and enforced under this part and part II of chapter 408 include criteria by which a reasonable and consistent quality of resident care may be ensured, the results of such resident care can be demonstrated, and safe and sanitary facilities can be provided.
(2) Pursuant to the intention of the Legislature, the agency, in consultation with the Agency for Persons with Disabilities and the Department of Elderly Affairs, shall adopt and enforce rules to administer this part and part II of chapter 408, which shall include reasonable and fair criteria governing:
(a) The location and construction of the facility; including fire and life safety, plumbing, heating, cooling, lighting, ventilation, and other housing conditions that ensure the health, safety, and comfort of residents. The agency shall establish standards for facilities and equipment to increase the extent to which new facilities and a new wing or floor added to an existing facility after July 1, 2000, are structurally capable of serving as shelters only for residents, staff, and families of residents and staff, and equipped to be self-supporting during and immediately following disasters. The agency shall update or revise the criteria as the need arises. All facilities must comply with those lifesafety code requirements and building code standards applicable at the time of approval of their construction plans. The agency may require alterations to a building if it determines that an existing condition constitutes a distinct hazard to life, health, or safety. The agency shall adopt fair and reasonable rules setting forth conditions under which existing facilities undergoing additions, alterations, conversions, renovations, or repairs are required to comply with the most recent updated or revised standards.
(b) The number and qualifications of all personnel, including management, medical nursing, and other personnel, having responsibility for any part of the care given to residents.
(c) All sanitary conditions within the facility and its surroundings, including water supply, sewage disposal, food handling, and general hygiene, which will ensure the health and comfort of residents.
(d) The equipment essential to the health and welfare of the residents.
(e) A uniform accounting system.
(f) The care, treatment, and maintenance of residents and measurement of the quality and adequacy thereof.
(g) The preparation and annual update of a comprehensive emergency management plan. The agency shall adopt rules establishing minimum criteria for the plan after consultation with the Division of Emergency Management. At a minimum, the rules must provide for plan components that address emergency evacuation transportation; adequate sheltering arrangements; postdisaster activities, including emergency power, food, and water; postdisaster transportation; supplies; staffing; emergency equipment; individual identification of residents and transfer of records; and responding to family inquiries. The comprehensive emergency management plan is subject to review and approval by the local emergency management agency. During its review, the local emergency management agency shall ensure that the following agencies, at a minimum, are given the opportunity to review the plan: the Department of Elderly Affairs, the Agency for Persons with Disabilities, the Agency for Health Care Administration, and the Division of Emergency Management. Also, appropriate volunteer organizations must be given the opportunity to review the plan. The local emergency management agency shall complete its review within 60 days and either approve the plan or advise the facility of necessary revisions.
(h) The use of restraint and seclusion. Such rules must be consistent with recognized best practices; prohibit inherently dangerous restraint or seclusion procedures; establish limitations on the use and duration of restraint and seclusion; establish measures to ensure the safety of clients and staff during an incident of restraint or seclusion; establish procedures for staff to follow before, during, and after incidents of restraint or seclusion, including individualized plans for the use of restraints or seclusion in emergency situations; establish professional qualifications of and training for staff who may order or be engaged in the use of restraint or seclusion; establish requirements for facility data collection and reporting relating to the use of restraint and seclusion; and establish procedures relating to the documentation of the use of restraint or seclusion in the client’s facility or program record.
(3) The agency shall adopt rules to provide that, when the criteria established under this part and part II of chapter 408 are not met, such deficiencies shall be classified according to the nature of the deficiency. The agency shall indicate the classification on the face of the notice of deficiencies as follows:
(a) Class I deficiencies are those which the agency determines present an imminent danger to the residents or guests of the facility or a substantial probability that death or serious physical harm would result therefrom. The condition or practice constituting a class I violation must be abated or eliminated immediately, unless a fixed period of time, as determined by the agency, is required for correction. A class I deficiency is subject to a civil penalty in an amount not less than $5,000 and not exceeding $10,000 for each deficiency. A fine may be levied notwithstanding the correction of the deficiency.
(b) Class II deficiencies are those which the agency determines have a direct or immediate relationship to the health, safety, or security of the facility residents, other than class I deficiencies. A class II deficiency is subject to a civil penalty in an amount not less than $1,000 and not exceeding $5,000 for each deficiency. A citation for a class II deficiency shall specify the time within which the deficiency must be corrected. If a class II deficiency is corrected within the time specified, no civil penalty shall be imposed, unless it is a repeated offense.
(c) Class III deficiencies are those which the agency determines to have an indirect or potential relationship to the health, safety, or security of the facility residents, other than class I or class II deficiencies. A class III deficiency is subject to a civil penalty of not less than $500 and not exceeding $1,000 for each deficiency. A citation for a class III deficiency shall specify the time within which the deficiency must be corrected. If a class III deficiency is corrected within the time specified, no civil penalty shall be imposed, unless it is a repeated offense.
(4) The agency shall approve or disapprove the plans and specifications within 60 days after receipt of the final plans and specifications. The agency may be granted one 15-day extension for the review period, if the secretary of the agency so approves. If the agency fails to act within the specified time, it is deemed to have approved the plans and specifications. When the agency disapproves plans and specifications, it must set forth in writing the reasons for disapproval. Conferences and consultations may be provided as necessary.
(5) The agency may charge an initial fee of $2,000 for review of plans and construction on all projects, no part of which is refundable. The agency may also collect a fee, not to exceed 1 percent of the estimated construction cost or the actual cost of review, whichever is less, for the portion of the review which encompasses initial review through the initial revised construction document review. The agency may collect its actual costs on all subsequent portions of the review and construction inspections. Initial fee payment must accompany the initial submission of plans and specifications. Any subsequent payment that is due is payable upon receipt of the invoice from the agency. Notwithstanding any other provision of law, all money received by the agency under this section shall be deemed to be trust funds, to be held and applied solely for the operations required under this section.
History.—s. 9, ch. 99-144; s. 14, ch. 2000-305; s. 44, ch. 2006-227; s. 118, ch. 2007-230; s. 108, ch. 2010-102; s. 280, ch. 2011-142.
400.968 Right of entry.—In addition to the requirements of s. 408.811, any designated officer or employee of the agency, or any officer or employee of the state or of the local fire marshal, may enter unannounced the premises of any facility licensed under this part in order to determine the state of compliance with this part, part II of chapter 408, and applicable rules.
History.—s. 9, ch. 99-144; s. 37, ch. 2002-400; s. 119, ch. 2007-230.
400.9685 Administration of medication.—
(1) Notwithstanding the provisions of the Nurse Practice Act, part I of chapter 464, unlicensed direct care services staff who are providing services to clients in intermediate care facilities for the developmentally disabled, licensed pursuant to this part, may administer prescribed, prepackaged, premeasured medications under the general supervision of a registered nurse as provided in this section and applicable rules. Training required by this section and applicable rules must be conducted by a registered nurse licensed pursuant to chapter 464 or a physician licensed pursuant to chapter 458 or chapter 459.
(2) Each facility that allows unlicensed direct care service staff to administer medications pursuant to this section must:
(a) Develop and implement policies and procedures that include a plan to ensure the safe handling, storage, and administration of prescription medication.
(b) Maintain written evidence of the expressed and informed consent for each client.
(c) Maintain a copy of the written prescription including the name of the medication, the dosage, and administration schedule.
(d) Maintain documentation regarding the prescription including the name, dosage, and administration schedule, reason for prescription, and the termination date.
(e) Maintain documentation of compliance with required training.
(3) Agency rules shall specify the following as it relates to the administration of medications by unlicensed staff:
(a) Medications authorized and packaging required.
(b) Acceptable methods of administration.
(c) A definition of “general supervision.”
(d) Minimum educational requirements of staff.
(e) Criteria of required training and competency that must be demonstrated prior to the administration of medications by unlicensed staff including inservice training.
(f) Requirements for safe handling, storage, and administration of medications.
History.—s. 2, ch. 2003-57.
400.969 Violation of part; penalties.—
(1) In addition to the requirements of part II of chapter 408, and except as provided in s. 400.967(3), a violation of any provision of this part, part II of chapter 408, or applicable rules is punishable by payment of an administrative or civil penalty not to exceed $5,000.
(2) A violation of this part or of rules adopted under this part is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Each day of a continuing violation is a separate offense.
History.—s. 9, ch. 99-144; s. 37, ch. 2002-400; s. 120, ch. 2007-230.
Note.—Former s. 400.968(4).
PART IX
HEALTH CARE SERVICES POOLS400.980 Health care services pools.
400.980 Health care services pools.—
(1) As used in this section, the term:
(a) “Agency” means the Agency for Health Care Administration.
(b) “Health care services pool” means any person, firm, corporation, partnership, or association engaged for hire in the business of providing temporary employment in health care facilities, residential facilities, and agencies for licensed, certified, or trained health care personnel including, without limitation, nursing assistants, nurses’ aides, and orderlies. However, the term does not include nursing registries, a facility licensed under this chapter or chapter 429, a health care services pool established within a health care facility to provide services only within the confines of such facility, or any individual contractor directly providing temporary services to a health care facility without use or benefit of a contracting agent.
(2) The requirements of part II of chapter 408 apply to the provision of services that require licensure or registration pursuant to this part and part II of chapter 408 and to entities registered by or applying for such registration from the agency pursuant to this part. Registration or a license issued by the agency is required for the operation of a health care services pool in this state. In accordance with s. 408.805, an applicant or licensee shall pay a fee for each license application submitted using this part, part II of chapter 408, and applicable rules. The agency shall adopt rules and provide forms required for such registration and shall impose a registration fee in an amount sufficient to cover the cost of administering this part and part II of chapter 408. In addition to the requirements in part II of chapter 408, the registrant must provide the agency with any change of information contained on the original registration application within 14 days prior to the change.
(3) The agency shall require level 2 background screening for personnel as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809.
(4) A health care services pool may not require an employee to recruit new employees from persons employed at a health care facility to which the health care services pool employee is assigned. Nor shall a health care facility to which employees of a health care services pool are assigned recruit new employees from the health care services pool.
(5) A health care services pool shall document that each temporary employee provided to a health care facility has met the licensing, certification, training, or continuing education requirements, as established by the appropriate regulatory agency, for the position in which he or she will be working.
(6) When referring persons for temporary employment in health care facilities, a health care services pool shall comply with all pertinent state and federal laws, rules, and regulations relating to health, background screening, and other qualifications required of persons working in a facility of that type.
(7)(a) As a condition of registration and prior to the issuance or renewal of a certificate of registration, a health care services pool applicant must prove financial responsibility to pay claims, and costs ancillary thereto, arising out of the rendering of services or failure to render services by the pool or by its employees in the course of their employment with the pool. The agency shall promulgate rules establishing minimum financial responsibility coverage amounts which shall be adequate to pay potential claims and costs ancillary thereto.
(b) Each health care services pool shall give written notification to the agency within 20 days after any change in the method of assuring financial responsibility or upon cancellation or nonrenewal of professional liability insurance. Unless the pool demonstrates that it is otherwise in compliance with the requirements of this subsection, the agency shall suspend the registration of the pool pursuant to s. 408.814. Any suspension under this section shall remain in effect until the pool demonstrates compliance with the requirements of this subsection.
(c) Proof of financial responsibility must be demonstrated to the satisfaction of the agency, through one of the following methods:
1. Establishing and maintaining an escrow account consisting of cash or assets eligible for deposit in accordance with s. 625.52;
2. Obtaining and maintaining an unexpired irrevocable letter of credit established pursuant to chapter 675. Such letters of credit shall be nontransferable and nonassignable and shall be issued by any bank or savings association organized and existing under the laws of this state or any bank or savings association organized under the laws of the United States that has its principal place of business in this state or has a branch office which is authorized under the laws of this state or of the United States to receive deposits in this state; or
3. Obtaining and maintaining professional liability coverage from one of the following:
a. An authorized insurer as defined under s. 624.09;
b. An eligible surplus lines insurer as defined under s. 626.918(2);
c. A risk retention group or purchasing group as defined under s. 627.942; or
d. A plan of self-insurance as provided in s. 627.357.
(d) If financial responsibility requirements are met by maintaining an escrow account or letter of credit, as provided in this subsection, upon the entry of an adverse final judgment arising from a medical malpractice arbitration award from a claim of medical malpractice either in contract or tort, or from noncompliance with the terms of a settlement agreement arising from a claim of medical malpractice either in contract or tort, the financial institution holding the escrow account or the letter of credit shall pay directly to the claimant the entire amount of the judgment together with all accrued interest or the amount maintained in the escrow account or letter of credit as required by this subsection, whichever is less, within 60 days after the date such judgment became final and subject to execution, unless otherwise mutually agreed to in writing by the parties. If timely payment is not made, the agency shall suspend the registration of the pool pursuant to procedures set forth by the agency through rule. Nothing in this paragraph shall abrogate a judgment debtor’s obligation to satisfy the entire amount of any judgment.
(e) Each health care services pool carrying claims-made coverage must demonstrate proof of extended reporting coverage through either tail or nose coverage, in the event the policy is canceled, replaced, or not renewed. Such extended coverage shall provide coverage for incidents that occurred during the claims-made policy period but were reported after the policy period.
(f) The financial responsibility requirements of this subsection shall apply to claims for incidents that occur on or after January 1, 1991, or the initial date of registration in this state, whichever is later.
(g) Meeting the financial responsibility requirements of this subsection must be established at the time of issuance or renewal of a certificate of registration.
(8) In addition to the requirements of part II of chapter 408, the agency shall adopt rules to implement this part, including rules providing for the establishment of:
(a) Minimum standards for the operation and administration of health care personnel pools, including procedures for recordkeeping and personnel.
(b) Fines for the violation of this part, part II of chapter 408, or applicable rules in an amount not to exceed $2,500.
History.—s. 1, ch. 89-354; s. 1, ch. 90-158; s. 1, ch. 90-192; s. 30, ch. 90-295; s. 184, ch. 91-108; s. 4, ch. 91-429; s. 52, ch. 94-218; s. 1061, ch. 95-148; s. 128, ch. 96-410; s. 3, ch. 97-264; s. 1, ch. 98-130; s. 24, ch. 2000-349; s. 38, ch. 2001-62; s. 29, ch. 2003-57; s. 18, ch. 2004-267; s. 70, ch. 2006-197; s. 121, ch. 2007-230; s. 17, ch. 2010-114.
Note.—Former s. 402.48.
PART X
HEALTH CARE CLINIC ACT400.990 Short title; legislative findings.
400.9905 Definitions.
400.991 License requirements; background screenings; prohibitions.
400.9915 Emergency suspension; costs.
400.9925 Rulemaking authority; license fees.
400.993 Unlicensed clinics; reporting.
400.9935 Clinic responsibilities.
400.995 Agency administrative penalties.
400.990 Short title; legislative findings.—
(1) This part, consisting of ss. 400.990-400.995, may be cited as the “Health Care Clinic Act.”
(2) The Legislature finds that the regulation of health care clinics must be strengthened to prevent significant cost and harm to consumers. The purpose of this part is to provide for the licensure, establishment, and enforcement of basic standards for health care clinics and to provide administrative oversight by the Agency for Health Care Administration.
History.—s. 4, ch. 2003-411.
400.9905 Definitions.—
(1) “Agency” means the Agency for Health Care Administration.
(2) “Applicant” means an individual owner, corporation, partnership, firm, business, association, or other entity that owns or controls, directly or indirectly, 5 percent or more of an interest in the clinic and that applies for a clinic license.
(3) “Chief financial officer” means an individual who has at least a minimum of a bachelor’s degree from an accredited university in accounting or finance, or a related field, and who is the person responsible for the preparation of a clinic’s billing.
(4) “Clinic” means an entity where health care services are provided to individuals and which tenders charges for reimbursement for such services, including a mobile clinic and a portable equipment provider. As used in this part, the term does not include and the licensure requirements of this part do not apply to:
(a) Entities licensed or registered by the state under chapter 395; entities licensed or registered by the state and providing only health care services within the scope of services authorized under their respective licenses under ss. 383.30-383.335, chapter 390, chapter 394, chapter 397, this chapter except part X, chapter 429, chapter 463, chapter 465, chapter 466, chapter 478, part I of chapter 483, chapter 484, or chapter 651; end-stage renal disease providers authorized under 42 C.F.R. part 405, subpart U; providers certified under 42 C.F.R. part 485, subpart B or subpart H; or any entity that provides neonatal or pediatric hospital-based health care services or other health care services by licensed practitioners solely within a hospital licensed under chapter 395.
(b) Entities that own, directly or indirectly, entities licensed or registered by the state pursuant to chapter 395; entities that own, directly or indirectly, entities licensed or registered by the state and providing only health care services within the scope of services authorized pursuant to their respective licenses under ss. 383.30-383.335, chapter 390, chapter 394, chapter 397, this chapter except part X, chapter 429, chapter 463, chapter 465, chapter 466, chapter 478, part I of chapter 483, chapter 484, 1or chapter 651; end-stage renal disease providers authorized under 42 C.F.R. part 405, subpart U; providers certified under 42 C.F.R. part 485, subpart B or subpart H; or any entity that provides neonatal or pediatric hospital-based health care services by licensed practitioners solely within a hospital licensed under chapter 395.
(c) Entities that are owned, directly or indirectly, by an entity licensed or registered by the state pursuant to chapter 395; entities that are owned, directly or indirectly, by an entity licensed or registered by the state and providing only health care services within the scope of services authorized pursuant to their respective licenses under ss. 383.30-383.335, chapter 390, chapter 394, chapter 397, this chapter except part X, chapter 429, chapter 463, chapter 465, chapter 466, chapter 478, part I of chapter 483, chapter 484, or chapter 651; end-stage renal disease providers authorized under 42 C.F.R. part 405, subpart U; providers certified under 42 C.F.R. part 485, subpart B or subpart H; or any entity that provides neonatal or pediatric hospital-based health care services by licensed practitioners solely within a hospital under chapter 395.
(d) Entities that are under common ownership, directly or indirectly, with an entity licensed or registered by the state pursuant to chapter 395; entities that are under common ownership, directly or indirectly, with an entity licensed or registered by the state and providing only health care services within the scope of services authorized pursuant to their respective licenses under ss. 383.30-383.335, chapter 390, chapter 394, chapter 397, this chapter except part X, chapter 429, chapter 463, chapter 465, chapter 466, chapter 478, part I of chapter 483, chapter 484, or chapter 651; end-stage renal disease providers authorized under 42 C.F.R. part 405, subpart U; providers certified under 42 C.F.R. part 485, subpart B or subpart H; or any entity that provides neonatal or pediatric hospital-based health care services by licensed practitioners solely within a hospital licensed under chapter 395.
(e) An entity that is exempt from federal taxation under 26 U.S.C. s. 501(c)(3) or (4), an employee stock ownership plan under 26 U.S.C. s. 409 that has a board of trustees at least two-thirds of which are Florida-licensed health care practitioners and provides only physical therapy services under physician orders, any community college or university clinic, and any entity owned or operated by the federal or state government, including agencies, subdivisions, or municipalities thereof.
(f) A sole proprietorship, group practice, partnership, or corporation that provides health care services by physicians covered by s. 627.419, that is directly supervised by one or more of such physicians, and that is wholly owned by one or more of those physicians or by a physician and the spouse, parent, child, or sibling of that physician.
(g) A sole proprietorship, group practice, partnership, or corporation that provides health care services by licensed health care practitioners under chapter 457, chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 466, chapter 467, chapter 480, chapter 484, chapter 486, chapter 490, chapter 491, or part I, part III, part X, part XIII, or part XIV of chapter 468, or s. 464.012, and that is wholly owned by one or more licensed health care practitioners, or the licensed health care practitioners set forth in this paragraph and the spouse, parent, child, or sibling of a licensed health care practitioner if one of the owners who is a licensed health care practitioner is supervising the business activities and is legally responsible for the entity’s compliance with all federal and state laws. However, a health care practitioner may not supervise services beyond the scope of the practitioner’s license, except that, for the purposes of this part, a clinic owned by a licensee in s. 456.053(3)(b) which provides only services authorized pursuant to s. 456.053(3)(b) may be supervised by a licensee specified in s. 456.053(3)(b).
(h) Clinical facilities affiliated with an accredited medical school at which training is provided for medical students, residents, or fellows.
(i) Entities that provide only oncology or radiation therapy services by physicians licensed under chapter 458 or chapter 459 or entities that provide oncology or radiation therapy services by physicians licensed under chapter 458 or chapter 459 which are owned by a corporation whose shares are publicly traded on a recognized stock exchange.
(j) Clinical facilities affiliated with a college of chiropractic accredited by the Council on Chiropractic Education at which training is provided for chiropractic students.
(k) Entities that provide licensed practitioners to staff emergency departments or to deliver anesthesia services in facilities licensed under chapter 395 and that derive at least 90 percent of their gross annual revenues from the provision of such services. Entities claiming an exemption from licensure under this paragraph must provide documentation demonstrating compliance.
(l) Orthotic or prosthetic clinical facilities that are a publicly traded corporation or that are wholly owned, directly or indirectly, by a publicly traded corporation. As used in this paragraph, a publicly traded corporation is a corporation that issues securities traded on an exchange registered with the United States Securities and Exchange Commission as a national securities exchange.
(m) Entities that are owned by a corporation that has $250 million or more in total annual sales of health care services provided by licensed health care practitioners where one or more of the owners is a health care practitioner who is licensed in this state and who is responsible for supervising the business activities of the entity and is legally responsible for the entity’s compliance with state law for purposes of this part.
(n) Entities that employ 50 or more licensed health care practitioners licensed under chapter 458 or chapter 459 where the billing for medical services is under a single tax identification number. The application for exemption under this subsection shall contain information that includes: the name, residence, and business address and phone number of the entity that owns the practice; a complete list of the names and contact information of all the officers and directors of the corporation; the name, residence address, business address, and medical license number of each licensed Florida health care practitioner employed by the entity; the corporate tax identification number of the entity seeking an exemption; a listing of health care services to be provided by the entity at the health care clinics owned or operated by the entity and a certified statement prepared by an independent certified public accountant which states that the entity and the health care clinics owned or operated by the entity have not received payment for health care services under personal injury protection insurance coverage for the preceding year. If the agency determines that an entity which is exempt under this subsection has received payments for medical services under personal injury protection insurance coverage, the agency may deny or revoke the exemption from licensure under this subsection.
Notwithstanding this subsection, an entity shall be deemed a clinic and must be licensed under this part in order to receive reimbursement under the Florida Motor Vehicle No-Fault Law, ss. 627.730-627.7405, unless exempted under s. 627.736(5)(h).
(5) “Medical director” means a physician who is employed or under contract with a clinic and who maintains a full and unencumbered physician license in accordance with chapter 458, chapter 459, chapter 460, or chapter 461. However, if the clinic does not provide services pursuant to the respective physician practices acts listed in this subsection, it may appoint a Florida-licensed health care practitioner who does not provide services pursuant to the respective physician practices acts listed in this subsection to serve as a clinic director who is responsible for the clinic’s activities. A health care practitioner may not serve as the clinic director if the services provided at the clinic are beyond the scope of that practitioner’s license, except that a licensee specified in s. 456.053(3)(b) who provides only services authorized pursuant to s. 456.053(3)(b) may serve as clinic director of an entity providing services as specified in s. 456.053(3)(b).
(6) “Mobile clinic” means a movable or detached self-contained health care unit within or from which direct health care services are provided to individuals and which otherwise meets the definition of a clinic in subsection (4).
(7) “Portable equipment provider” means an entity that contracts with or employs persons to provide portable equipment to multiple locations performing treatment or diagnostic testing of individuals, that bills third-party payors for those services, and that otherwise meets the definition of a clinic in subsection (4).
History.—s. 4, ch. 2003-411; s. 14, ch. 2004-298; ss. 26, 33, ch. 2004-350; s. 1, ch. 2005-262; s. 7, ch. 2006-192; s. 71, ch. 2006-197; s. 122, ch. 2007-230; s. 38, ch. 2012-160; s. 2, ch. 2012-197.
400.991 License requirements; background screenings; prohibitions.—
(1)(a) The requirements of part II of chapter 408 apply to the provision of services that require licensure pursuant to this part and part II of chapter 408 and to entities licensed by or applying for such licensure from the agency pursuant to this part. A license issued by the agency is required in order to operate a clinic in this state. Each clinic location shall be licensed separately regardless of whether the clinic is operated under the same business name or management as another clinic.
(b) Each mobile clinic must obtain a separate health care clinic license and must provide to the agency, at least quarterly, its projected street location to enable the agency to locate and inspect such clinic. A portable equipment provider must obtain a health care clinic license for a single administrative office and is not required to submit quarterly projected street locations.
(2) The initial clinic license application shall be filed with the agency by all clinics, as defined in s. 400.9905, on or before July 1, 2004.
(3) The application shall contain information that includes, but need not be limited to, information pertaining to the name, residence and business address, phone number, social security number, and license number of the medical or clinic director of the licensed medical providers employed or under contract with the clinic.
(4) In addition to the requirements of part II of chapter 408, the applicant must file with the application satisfactory proof that the clinic is in compliance with this part and applicable rules, including:
(a) A listing of services to be provided either directly by the applicant or through contractual arrangements with existing providers;
(b) The number and discipline of each professional staff member to be employed; and
(c) Proof of financial ability to operate as required under s. 408.810(8). As an alternative to submitting proof of financial ability to operate as required under s. 408.810(8), the applicant may file a surety bond of at least $500,000 which guarantees that the clinic will act in full conformity with all legal requirements for operating a clinic, payable to the agency. The agency may adopt rules to specify related requirements for such surety bond.
(5)(a) As used in this subsection, the term “applicant” means individuals owning or controlling, directly or indirectly, 5 percent or more of an interest in a clinic; the medical or clinic director, or a similarly titled person who is responsible for the day-to-day operation of the licensed clinic; the financial officer or similarly titled individual who is responsible for the financial operation of the clinic; and licensed health care practitioners at the clinic.
(b) The agency shall require level 2 background screening for applicants and personnel as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809.
(c) Each applicant must submit to the agency, with the application, a description and explanation of any exclusions, permanent suspensions, or terminations of an applicant from the Medicare or Medicaid programs. Proof of compliance with the requirements for disclosure of ownership and control interest under the Medicaid or Medicare programs may be accepted in lieu of this submission. The description and explanation may indicate whether such exclusions, suspensions, or terminations were voluntary or not voluntary on the part of the applicant.
(6) All agency forms for licensure application or exemption from licensure under this part must contain the following statement:
INSURANCE FRAUD NOTICE.—A person who knowingly submits a false, misleading, or fraudulent application or other document when applying for licensure as a health care clinic, seeking an exemption from licensure as a health care clinic, or demonstrating compliance with part X of chapter 400, Florida Statutes, with the intent to use the license, exemption from licensure, or demonstration of compliance to provide services or seek reimbursement under the Florida Motor Vehicle No-Fault Law, commits a fraudulent insurance act, as defined in s. 626.989, Florida Statutes. A person who presents a claim for personal injury protection benefits knowing that the payee knowingly submitted such health care clinic application or document, commits insurance fraud, as defined in s. 817.234, Florida Statutes.
History.—s. 4, ch. 2003-411; s. 56, ch. 2004-267; s. 16, ch. 2004-298; s. 28, ch. 2004-350; s. 123, ch. 2007-230; s. 18, ch. 2010-114; s. 3, ch. 2012-197.
400.9915 Emergency suspension; costs.—
(1) Failure by a clinic to employ a qualified medical director or clinic director constitutes a ground for emergency suspension of the license by the agency pursuant to s. 408.814.
(2) In addition to any administrative fines imposed pursuant to this part or part II of chapter 408, the agency may assess a fee equal to the cost of conducting a complaint investigation.
History.—s. 4, ch. 2003-411; s. 124, ch. 2007-230.
400.9925 Rulemaking authority; license fees.—
(1) The agency shall adopt rules necessary to administer the clinic administration, regulation, and licensure program, including rules pursuant to this part and part II of chapter 408, establishing the specific licensure requirements, procedures, forms, and fees. It shall adopt rules establishing a procedure for the biennial renewal of licenses. The agency may issue initial licenses for less than the full 2-year period by charging a prorated licensure fee and specifying a different renewal date than would otherwise be required for biennial licensure. The rules shall specify the expiration dates of licenses, the process of tracking compliance with financial responsibility requirements, and any other conditions of renewal required by law or rule.
(2) The agency shall adopt rules specifying limitations on the number of licensed clinics and licensees for which a medical director or a clinic director may assume responsibility for purposes of this part. In determining the quality of supervision a medical director or a clinic director can provide, the agency shall consider the number of clinic employees, the clinic location, and the health care services provided by the clinic.
(3) In accordance with s. 408.805, an applicant or a licensee shall pay a fee for each license application submitted under this part, part II of chapter 408, and applicable rules. The amount of the fee shall be established by rule and may not exceed $2,000.
History.—s. 4, ch. 2003-411; s. 126, ch. 2007-230.
400.993 Unlicensed clinics; reporting.—
(1) Any person who violates s. 408.812 regarding unlicensed activity commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Each day of continued operation is a separate offense.
(2) Any person found guilty of violating s. 408.812 a second or subsequent time commits a felony of the second degree, punishable as provided under s. 775.082, s. 775.083, or s. 775.084. Each day of continued operation is a separate offense.
(3) In addition to the requirements of part II of chapter 408, any health care provider who is aware of the operation of an unlicensed clinic shall report that facility to the agency. Failure to report a clinic that the provider knows or has reasonable cause to suspect is unlicensed shall be reported to the provider’s licensing board.
History.—s. 4, ch. 2003-411; s. 127, ch. 2007-230.
400.9935 Clinic responsibilities.—
(1) Each clinic shall appoint a medical director or clinic director who shall agree in writing to accept legal responsibility for the following activities on behalf of the clinic. The medical director or the clinic director shall:
(a) Have signs identifying the medical director or clinic director posted in a conspicuous location within the clinic readily visible to all patients.
(b) Ensure that all practitioners providing health care services or supplies to patients maintain a current active and unencumbered Florida license.
(c) Review any patient referral contracts or agreements executed by the clinic.
(d) Ensure that all health care practitioners at the clinic have active appropriate certification or licensure for the level of care being provided.
(e) Serve as the clinic records owner as defined in s. 456.057.
(f) Ensure compliance with the recordkeeping, office surgery, and adverse incident reporting requirements of chapter 456, the respective practice acts, and rules adopted under this part and part II of chapter 408.
(g) Conduct systematic reviews of clinic billings to ensure that the billings are not fraudulent or unlawful. Upon discovery of an unlawful charge, the medical director or clinic director shall take immediate corrective action. If the clinic performs only the technical component of magnetic resonance imaging, static radiographs, computed tomography, or positron emission tomography, and provides the professional interpretation of such services, in a fixed facility that is accredited by the Joint Commission on Accreditation of Healthcare Organizations or the Accreditation Association for Ambulatory Health Care, and the American College of Radiology; and if, in the preceding quarter, the percentage of scans performed by that clinic which was billed to all personal injury protection insurance carriers was less than 15 percent, the chief financial officer of the clinic may, in a written acknowledgment provided to the agency, assume the responsibility for the conduct of the systematic reviews of clinic billings to ensure that the billings are not fraudulent or unlawful.
(h) Not refer a patient to the clinic if the clinic performs magnetic resonance imaging, static radiographs, computed tomography, or positron emission tomography. The term “refer a patient” means the referral of one or more patients of the medical or clinical director or a member of the medical or clinical director’s group practice to the clinic for magnetic resonance imaging, static radiographs, computed tomography, or positron emission tomography. A medical director who is found to violate this paragraph commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(i) Ensure that the clinic publishes a schedule of charges for the medical services offered to patients. The schedule must include the prices charged to an uninsured person paying for such services by cash, check, credit card, or debit card. The schedule must be posted in a conspicuous place in the reception area of the urgent care center and must include, but is not limited to, the 50 services most frequently provided by the clinic. The schedule may group services by three price levels, listing services in each price level. The posting may be a sign that must be at least 15 square feet in size or through an electronic messaging board that is at least 3 square feet in size. The failure of a clinic to publish and post a schedule of charges as required by this section shall result in a fine of not more than $1,000, per day, until the schedule is published and posted.
(2) Any contract to serve as a medical director or a clinic director entered into or renewed by a physician or a licensed health care practitioner in violation of this part is void as contrary to public policy. This subsection shall apply to contracts entered into or renewed on or after March 1, 2004.
(3) All charges or reimbursement claims made by or on behalf of a clinic that is required to be licensed under this part, but that is not so licensed, or that is otherwise operating in violation of this part, are unlawful charges, and therefore are noncompensable and unenforceable.
(4) In addition to the requirements of s. 408.812, any person establishing, operating, or managing an unlicensed clinic otherwise required to be licensed under this part or part II of chapter 408, or any person who knowingly files a false or misleading license application or license renewal application, or false or misleading information related to such application or department rule, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5) Any licensed health care provider who violates this part is subject to discipline in accordance with this chapter and his or her respective practice act.
(6) Any person or entity providing health care services which is not a clinic, as defined under s. 400.9905, may voluntarily apply for a certificate of exemption from licensure under its exempt status with the agency on a form that sets forth its name or names and addresses, a statement of the reasons why it cannot be defined as a clinic, and other information deemed necessary by the agency. An exemption is not transferable. The agency may charge an applicant for a certificate of exemption in an amount equal to $100 or the actual cost of processing the certificate, whichever is less. An entity seeking a certificate of exemption must publish and maintain a schedule of charges for the medical services offered to patients. The schedule must include the prices charged to an uninsured person paying for such services by cash, check, credit card, or debit card. The schedule must be posted in a conspicuous place in the reception area of the entity and must include, but is not limited to, the 50 services most frequently provided by the entity. The schedule may group services by three price levels, listing services in each price level. The posting must be at least 15 square feet in size. As a condition precedent to receiving a certificate of exemption, an applicant must provide to the agency documentation of compliance with these requirements.
(7)(a) Each clinic engaged in magnetic resonance imaging services must be accredited by the Joint Commission on Accreditation of Healthcare Organizations, the American College of Radiology, or the Accreditation Association for Ambulatory Health Care, within 1 year after licensure. A clinic that is accredited by the American College of Radiology or is within the original 1-year period after licensure and replaces its core magnetic resonance imaging equipment shall be given 1 year after the date on which the equipment is replaced to attain accreditation. However, a clinic may request a single, 6-month extension if it provides evidence to the agency establishing that, for good cause shown, such clinic cannot be accredited within 1 year after licensure, and that such accreditation will be completed within the 6-month extension. After obtaining accreditation as required by this subsection, each such clinic must maintain accreditation as a condition of renewal of its license. A clinic that files a change of ownership application must comply with the original accreditation timeframe requirements of the transferor. The agency shall deny a change of ownership application if the clinic is not in compliance with the accreditation requirements. When a clinic adds, replaces, or modifies magnetic resonance imaging equipment and the accreditation agency requires new accreditation, the clinic must be accredited within 1 year after the date of the addition, replacement, or modification but may request a single, 6-month extension if the clinic provides evidence of good cause to the agency.
(b) The agency may deny the application or revoke the license of any entity formed for the purpose of avoiding compliance with the accreditation provisions of this subsection and whose principals were previously principals of an entity that was unable to meet the accreditation requirements within the specified timeframes. The agency may adopt rules as to the accreditation of magnetic resonance imaging clinics.
(8) The agency shall give full faith and credit pertaining to any past variance and waiver granted to a magnetic resonance imaging clinic from rule 64-2002, Florida Administrative Code, by the Department of Health, until September 2004. After that date, such clinic must request a variance and waiver from the agency under s. 120.542.
(9) In addition to the requirements of part II of chapter 408, the clinic shall display a sign in a conspicuous location within the clinic readily visible to all patients indicating that, pursuant to s. 626.9892, the Department of Financial Services may pay rewards of up to $25,000 to persons providing information leading to the arrest and conviction of persons committing crimes investigated by the Division of Insurance Fraud arising from violations of s. 440.105, s. 624.15, s. 626.9541, s. 626.989, or s. 817.234. An authorized employee of the Division of Insurance Fraud may make unannounced inspections of a clinic licensed under this part as necessary to determine whether the clinic is in compliance with this subsection. A licensed clinic shall allow full and complete access to the premises to such authorized employee of the division who makes an inspection to determine compliance with this subsection.
History.—s. 4, ch. 2003-411; s. 17, ch. 2004-298; s. 29, ch. 2004-350; s. 4, ch. 2006-305; s. 128, ch. 2007-230; s. 45, ch. 2009-223; s. 4, ch. 2011-122; s. 3, ch. 2012-160.
400.995 Agency administrative penalties.—
(1) In addition to the requirements of part II of chapter 408, the agency may deny the application for a license renewal, revoke and suspend the license, and impose administrative fines of up to $5,000 per violation for violations of the requirements of this part or rules of the agency. In determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors:
(a) The gravity of the violation, including the probability that death or serious physical or emotional harm to a patient will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated.
(b) Actions taken by the owner, medical director, or clinic director to correct violations.
(c) Any previous violations.
(d) The financial benefit to the clinic of committing or continuing the violation.
(2) Each day of continuing violation after the date fixed for termination of the violation, as ordered by the agency, constitutes an additional, separate, and distinct violation.
(3) Any action taken to correct a violation shall be documented in writing by the owner, medical director, or clinic director of the clinic and verified through followup visits by agency personnel. The agency may impose a fine and, in the case of an owner-operated clinic, revoke or deny a clinic’s license when a clinic medical director or clinic director knowingly misrepresents actions taken to correct a violation.
(4) Any licensed clinic whose owner, medical director, or clinic director concurrently operates an unlicensed clinic shall be subject to an administrative fine of $5,000 per day.
(5) Any clinic whose owner fails to apply for a change-of-ownership license and operates the clinic under the new ownership is subject to a fine of $5,000.
(6) During an inspection, the agency shall make a reasonable attempt to discuss each violation with the owner, medical director, or clinic director of the clinic, prior to written notification.
History.—s. 4, ch. 2003-411; s. 18, ch. 2004-298; s. 30, ch. 2004-350; s. 131, ch. 2007-230; s. 104, ch. 2008-4; s. 46, ch. 2009-223.