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2013 Florida Statutes
Chapter 429
ASSISTED CARE COMMUNITIES
ASSISTED CARE COMMUNITIES
CHAPTER 429
ASSISTED CARE COMMUNITIES
PART I
ASSISTED LIVING FACILITIES(ss. 429.01-429.54)
PART II
ADULT FAMILY-CARE HOMES(ss. 429.60-429.87)
PART III
ADULT DAY CARE CENTERS(ss. 429.90-429.931)
PART I
ASSISTED LIVING FACILITIES429.01 Short title; purpose.
429.02 Definitions.
429.04 Facilities to be licensed; exemptions.
429.07 License required; fee.
429.075 Limited mental health license.
429.08 Unlicensed facilities; referral of person for residency to unlicensed facility; penalties.
429.11 Initial application for license; provisional license.
429.12 Sale or transfer of ownership of a facility.
429.14 Administrative penalties.
429.17 Expiration of license; renewal; conditional license.
429.174 Background screening.
429.176 Notice of change of administrator.
429.177 Patients with Alzheimer’s disease or other related disorders; certain disclosures.
429.178 Special care for persons with Alzheimer’s disease or other related disorders.
429.18 Disposition of fees and administrative fines.
429.19 Violations; imposition of administrative fines; grounds.
429.195 Rebates prohibited; penalties.
429.20 Certain solicitation prohibited; third-party supplementation.
429.22 Receivership proceedings.
429.23 Internal risk management and quality assurance program; adverse incidents and reporting requirements.
429.24 Contracts.
429.255 Use of personnel; emergency care.
429.256 Assistance with self-administration of medication.
429.26 Appropriateness of placements; examinations of residents.
429.27 Property and personal affairs of residents.
429.275 Business practice; personnel records; liability insurance.
429.28 Resident bill of rights.
429.29 Civil actions to enforce rights.
429.293 Presuit notice; investigation; notification of violation of residents’ rights or alleged negligence; claims evaluation procedure; informal discovery; review; settlement offer; mediation.
429.294 Availability of facility records for investigation of resident’s rights violations and defenses; penalty.
429.295 Certain provisions not applicable to actions under this part.
429.296 Statute of limitations.
429.297 Punitive damages; pleading; burden of proof.
429.298 Punitive damages; limitation.
429.31 Closing of facility; notice; penalty.
429.34 Right of entry and inspection.
429.35 Maintenance of records; reports.
429.41 Rules establishing standards.
429.42 Pharmacy and dietary services.
429.44 Construction and renovation; requirements.
429.445 Compliance with local zoning requirements.
429.47 Prohibited acts; penalties for violation.
429.49 Resident records; penalties for alteration.
429.52 Staff training and educational programs; core educational requirement.
429.53 Consultation by the agency.
429.54 Collection of information; local subsidy.
429.01 Short title; purpose.—
(1) This act may be cited as the “Assisted Living Facilities Act.”
(2) The purpose of this act is to promote the availability of appropriate services for elderly persons and adults with disabilities in the least restrictive and most homelike environment, to encourage the development of facilities that promote the dignity, individuality, privacy, and decisionmaking ability of such persons, to provide for the health, safety, and welfare of residents of assisted living facilities in the state, to promote continued improvement of such facilities, to encourage the development of innovative and affordable facilities particularly for persons with low to moderate incomes, to ensure that all agencies of the state cooperate in the protection of such residents, and to ensure that needed economic, social, mental health, health, and leisure services are made available to residents of such facilities through the efforts of the Agency for Health Care Administration, the Department of Elderly Affairs, the Department of Children and Family Services, the Department of Health, assisted living facilities, and other community agencies. To the maximum extent possible, appropriate community-based programs must be available to state-supported residents to augment the services provided in assisted living facilities. The Legislature recognizes that assisted living facilities are an important part of the continuum of long-term care in the state. In support of the goal of aging in place, the Legislature further recognizes that assisted living facilities should be operated and regulated as residential environments with supportive services and not as medical or nursing facilities. The services available in these facilities, either directly or through contract or agreement, are intended to help residents remain as independent as possible. Regulations governing these facilities must be sufficiently flexible to allow facilities to adopt policies that enable residents to age in place when resources are available to meet their needs and accommodate their preferences.
(3) The principle that a license issued under this part is a public trust and a privilege and is not an entitlement should guide the finder of fact or trier of law at any administrative proceeding or in a court action initiated by the Agency for Health Care Administration to enforce this part.
History.—ss. 1, 2, ch. 75-233; ss. 12, 13, ch. 80-198; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; s. 2, ch. 87-371; s. 2, ch. 91-263; s. 28, ch. 92-33; ss. 1, 38, 39, ch. 93-216; s. 6, ch. 95-210; s. 46, ch. 95-418; s. 122, ch. 99-8; s. 2, ch. 2006-197.
Note.—Former s. 400.401.
429.02 Definitions.—When used in this part, the term:
(1) “Activities of daily living” means functions and tasks for self-care, including ambulation, bathing, dressing, eating, grooming, and toileting, and other similar tasks.
(2) “Administrator” means an individual at least 21 years of age who is responsible for the operation and maintenance of an assisted living facility.
(3) “Agency” means the Agency for Health Care Administration.
(4) “Aging in place” or “age in place” means the process of providing increased or adjusted services to a person to compensate for the physical or mental decline that may occur with the aging process, in order to maximize the person’s dignity and independence and permit them to remain in a familiar, noninstitutional, residential environment for as long as possible. Such services may be provided by facility staff, volunteers, family, or friends, or through contractual arrangements with a third party.
(5) “Assisted living facility” means any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator.
(6) “Chemical restraint” means a pharmacologic drug that physically limits, restricts, or deprives an individual of movement or mobility, and is used for discipline or convenience and not required for the treatment of medical symptoms.
(7) “Community living support plan” means a written document prepared by a mental health resident and the resident’s mental health case manager in consultation with the administrator of an assisted living facility with a limited mental health license or the administrator’s designee. A copy must be provided to the administrator. The plan must include information about the supports, services, and special needs of the resident which enable the resident to live in the assisted living facility and a method by which facility staff can recognize and respond to the signs and symptoms particular to that resident which indicate the need for professional services.
(8) “Cooperative agreement” means a written statement of understanding between a mental health care provider and the administrator of the assisted living facility with a limited mental health license in which a mental health resident is living. The agreement must specify directions for accessing emergency and after-hours care for the mental health resident. A single cooperative agreement may service all mental health residents who are clients of the same mental health care provider.
(9) “Department” means the Department of Elderly Affairs.
(10) “Emergency” means a situation, physical condition, or method of operation which presents imminent danger of death or serious physical or mental harm to facility residents.
(11) “Extended congregate care” means acts beyond those authorized in subsection (16) that may be performed pursuant to part I of chapter 464 by persons licensed thereunder while carrying out their professional duties, and other supportive services which may be specified by rule. The purpose of such services is to enable residents to age in place in a residential environment despite mental or physical limitations that might otherwise disqualify them from residency in a facility licensed under this part.
(12) “Guardian” means a person to whom the law has entrusted the custody and control of the person or property, or both, of a person who has been legally adjudged incapacitated.
(13) “Limited nursing services” means acts that may be performed pursuant to part I of chapter 464 by persons licensed thereunder while carrying out their professional duties but limited to those acts which the department specifies by rule. Acts which may be specified by rule as allowable limited nursing services shall be for persons who meet the admission criteria established by the department for assisted living facilities and shall not be complex enough to require 24-hour nursing supervision and may include such services as the application and care of routine dressings, and care of casts, braces, and splints.
(14) “Managed risk” means the process by which the facility staff discuss the service plan and the needs of the resident with the resident and, if applicable, the resident’s representative or designee or the resident’s surrogate, guardian, or attorney in fact, in such a way that the consequences of a decision, including any inherent risk, are explained to all parties and reviewed periodically in conjunction with the service plan, taking into account changes in the resident’s status and the ability of the facility to respond accordingly.
(15) “Mental health resident” means an individual who receives social security disability income due to a mental disorder as determined by the Social Security Administration or receives supplemental security income due to a mental disorder as determined by the Social Security Administration and receives optional state supplementation.
(16) “Personal services” means direct physical assistance with or supervision of the activities of daily living and the self-administration of medication and other similar services which the department may define by rule. “Personal services” shall not be construed to mean the provision of medical, nursing, dental, or mental health services.
(17) “Physical restraint” means a device which physically limits, restricts, or deprives an individual of movement or mobility, including, but not limited to, a half-bed rail, a full-bed rail, a geriatric chair, and a posey restraint. The term “physical restraint” shall also include any device which was not specifically manufactured as a restraint but which has been altered, arranged, or otherwise used for this purpose. The term shall not include bandage material used for the purpose of binding a wound or injury.
(18) “Relative” means an individual who is the father, mother, stepfather, stepmother, son, daughter, brother, sister, grandmother, grandfather, great-grandmother, great-grandfather, grandson, granddaughter, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister of an owner or administrator.
(19) “Resident” means a person 18 years of age or older, residing in and receiving care from a facility.
(20) “Resident’s representative or designee” means a person other than the owner, or an agent or employee of the facility, designated in writing by the resident, if legally competent, to receive notice of changes in the contract executed pursuant to s. 429.24; to receive notice of and to participate in meetings between the resident and the facility owner, administrator, or staff concerning the rights of the resident; to assist the resident in contacting the ombudsman council if the resident has a complaint against the facility; or to bring legal action on behalf of the resident pursuant to s. 429.29.
(21) “Service plan” means a written plan, developed and agreed upon by the resident and, if applicable, the resident’s representative or designee or the resident’s surrogate, guardian, or attorney in fact, if any, and the administrator or designee representing the facility, which addresses the unique physical and psychosocial needs, abilities, and personal preferences of each resident receiving extended congregate care services. The plan shall include a brief written description, in easily understood language, of what services shall be provided, who shall provide the services, when the services shall be rendered, and the purposes and benefits of the services.
(22) “Shared responsibility” means exploring the options available to a resident within a facility and the risks involved with each option when making decisions pertaining to the resident’s abilities, preferences, and service needs, thereby enabling the resident and, if applicable, the resident’s representative or designee, or the resident’s surrogate, guardian, or attorney in fact, and the facility to develop a service plan which best meets the resident’s needs and seeks to improve the resident’s quality of life.
(23) “Supervision” means reminding residents to engage in activities of daily living and the self-administration of medication, and, when necessary, observing or providing verbal cuing to residents while they perform these activities.
(24) “Supplemental security income,” Title XVI of the Social Security Act, means a program through which the Federal Government guarantees a minimum monthly income to every person who is age 65 or older, or disabled, or blind and meets the income and asset requirements.
(25) “Supportive services” means services designed to encourage and assist aged persons or adults with disabilities to remain in the least restrictive living environment and to maintain their independence as long as possible.
(26) “Twenty-four-hour nursing supervision” means services that are ordered by a physician for a resident whose condition requires the supervision of a physician and continued monitoring of vital signs and physical status. Such services shall be: medically complex enough to require constant supervision, assessment, planning, or intervention by a nurse; required to be performed by or under the direct supervision of licensed nursing personnel or other professional personnel for safe and effective performance; required on a daily basis; and consistent with the nature and severity of the resident’s condition or the disease state or stage.
History.—s. 3, ch. 75-233; ss. 12, 14, ch. 80-198; s. 2, ch. 81-318; ss. 6, 19, ch. 82-148; ss. 41, 79, 83, ch. 83-181; s. 4, ch. 85-145; s. 3, ch. 87-371; s. 10, ch. 89-294; s. 3, ch. 91-263; s. 1, ch. 93-209; ss. 2, 38, 39, ch. 93-216; s. 7, ch. 95-210; ss. 1, 22, 47, ch. 95-418; s. 2, ch. 97-82; s. 1, ch. 98-80; s. 98, ch. 2000-318; ss. 2, 29, ch. 2006-197; s. 138, ch. 2007-230.
Note.—Former s. 400.402.
429.04 Facilities to be licensed; exemptions.—
(1) For the administration of this part, facilities to be licensed by the agency shall include all assisted living facilities as defined in this part.
(2) The following are exempt from licensure under this part:
(a) Any facility, institution, or other place operated by the Federal Government or any agency of the Federal Government.
(b) Any facility or part of a facility licensed under chapter 393 or chapter 394.
(c) Any facility licensed as an adult family-care home under part II.
(d) Any person who provides housing, meals, and one or more personal services on a 24-hour basis in the person’s own home to not more than two adults who do not receive optional state supplementation. The person who provides the housing, meals, and personal services must own or rent the home and reside therein.
(e) Any home or facility approved by the United States Department of Veterans Affairs as a residential care home wherein care is provided exclusively to three or fewer veterans.
(f) Any facility that has been incorporated in this state for 50 years or more on or before July 1, 1983, and the board of directors of which is nominated or elected by the residents, until the facility is sold or its ownership is transferred; or any facility, with improvements or additions thereto, which has existed and operated continuously in this state for 60 years or more on or before July 1, 1989, 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.
(g) Any facility certified under chapter 651, or a retirement community, may provide services authorized under this part or part III of chapter 400 to its residents who live in single-family homes, duplexes, quadruplexes, or apartments located on the campus without obtaining a license to operate an assisted living facility if residential units within such buildings are used by residents who do not require staff supervision for that portion of the day when personal services are not being delivered and the owner obtains a home health license to provide such services. However, any building or distinct part of a building on the campus that is designated for persons who receive personal services and require supervision beyond that which is available while such services are being rendered must be licensed in accordance with this part. If a facility provides personal services to residents who do not otherwise require supervision and the owner is not licensed as a home health agency, the buildings or distinct parts of buildings where such services are rendered must be licensed under this part. A resident of a facility that obtains a home health license may contract with a home health agency of his or her choice, provided that the home health agency provides liability insurance and workers’ compensation coverage for its employees. Facilities covered by this exemption may establish policies that give residents the option of contracting for services and care beyond that which is provided by the facility to enable them to age in place. For purposes of this section, a retirement community consists of a facility licensed under this part or under part II of chapter 400, and apartments designed for independent living located on the same campus.
(h) Any residential unit for independent living which is located within a facility certified under chapter 651, or any residential unit which is colocated with a nursing home licensed under part II of chapter 400 or colocated with a facility licensed under this part in which services are provided through an outpatient clinic or a nursing home on an outpatient basis.
History.—ss. 4, 5, ch. 75-233; ss. 12, 15, ch. 80-198; s. 2, ch. 81-318; ss. 42, 79, 83, ch. 83-181; s. 4, ch. 87-371; s. 4, ch. 91-263; ss. 3, 38, 39, ch. 93-216; s. 19, ch. 93-268; s. 2, ch. 94-206; s. 1055, ch. 95-148; s. 8, ch. 95-210; s. 2, ch. 98-80; s. 1, ch. 98-148; ss. 2, 30, ch. 2006-197.
Note.—Former s. 400.404.
429.07 License required; fee.—
(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 pursuant to this part. A license issued by the agency is required in order to operate an assisted living facility in this state.
(2) Separate licenses shall be required for facilities maintained in separate premises, even though operated under the same management. A separate license shall not be required for separate buildings on the same grounds.
(3) In addition to the requirements of s. 408.806, each license granted by the agency must state the type of care for which the license is granted. Licenses shall be issued for one or more of the following categories of care: standard, extended congregate care, limited nursing services, or limited mental health.
(a) A standard license shall be issued to facilities providing one or more of the personal services identified in s. 429.02. Such facilities may also employ or contract with a person licensed under part I of chapter 464 to administer medications and perform other tasks as specified in s. 429.255.
(b) An extended congregate care license shall be issued to facilities providing, directly or through contract, services beyond those authorized in paragraph (a), including services performed by persons licensed under part I of chapter 464 and supportive services, as defined by rule, to persons who would otherwise be disqualified from continued residence in a facility licensed under this part.
1. In order for extended congregate care services to be provided, the agency must first determine that all requirements established in law and rule are met and must specifically designate, on the facility’s license, that such services may be provided and whether the designation applies to all or part of the facility. Such designation may be made at the time of initial licensure or relicensure, or upon request in writing by a licensee under this part and part II of chapter 408. The notification of approval or the denial of the request shall be made in accordance with part II of chapter 408. Existing facilities qualifying to provide extended congregate care services must have maintained a standard license and may not have been subject to administrative sanctions during the previous 2 years, or since initial licensure if the facility has been licensed for less than 2 years, for any of the following reasons:
a. A class I or class II violation;
b. Three or more repeat or recurring class III violations of identical or similar resident care standards from which a pattern of noncompliance is found by the agency;
c. Three or more class III violations that were not corrected in accordance with the corrective action plan approved by the agency;
d. Violation of resident care standards which results in requiring the facility to employ the services of a consultant pharmacist or consultant dietitian;
e. Denial, suspension, or revocation of a license for another facility licensed under this part in which the applicant for an extended congregate care license has at least 25 percent ownership interest; or
f. Imposition of a moratorium pursuant to this part or part II of chapter 408 or initiation of injunctive proceedings.
2. A facility that is licensed to provide extended congregate care services shall maintain a written progress report on each person who receives services which describes the type, amount, duration, scope, and outcome of services that are rendered and the general status of the resident’s health. A registered nurse, or appropriate designee, representing the agency shall visit the facility at least quarterly to monitor residents who are receiving extended congregate care services and to determine if the facility is in compliance with this part, part II of chapter 408, and relevant rules. One of the visits may be in conjunction with the regular survey. The monitoring visits may be provided through contractual arrangements with appropriate community agencies. A registered nurse shall serve as part of the team that inspects the facility. The agency may waive one of the required yearly monitoring visits for a facility that has been licensed for at least 24 months to provide extended congregate care services, if, during the inspection, the registered nurse determines that extended congregate care services are being provided appropriately, and if the facility has no class I or class II violations and no uncorrected class III violations. The agency must first consult with the long-term care ombudsman council for the area in which the facility is located to determine if any complaints have been made and substantiated about the quality of services or care. The agency may not waive one of the required yearly monitoring visits if complaints have been made and substantiated.
3. A facility that is licensed to provide extended congregate care services must:
a. Demonstrate the capability to meet unanticipated resident service needs.
b. Offer a physical environment that promotes a homelike setting, provides for resident privacy, promotes resident independence, and allows sufficient congregate space as defined by rule.
c. Have sufficient staff available, taking into account the physical plant and firesafety features of the building, to assist with the evacuation of residents in an emergency.
d. Adopt and follow policies and procedures that maximize resident independence, dignity, choice, and decisionmaking to permit residents to age in place, so that moves due to changes in functional status are minimized or avoided.
e. Allow residents or, if applicable, a resident’s representative, designee, surrogate, guardian, or attorney in fact to make a variety of personal choices, participate in developing service plans, and share responsibility in decisionmaking.
f. Implement the concept of managed risk.
g. Provide, directly or through contract, the services of a person licensed under part I of chapter 464.
h. In addition to the training mandated in s. 429.52, provide specialized training as defined by rule for facility staff.
4. A facility that is licensed to provide extended congregate care services is exempt from the criteria for continued residency set forth in rules adopted under s. 429.41. A licensed facility must adopt its own requirements within guidelines for continued residency set forth by rule. However, the facility may not serve residents who require 24-hour nursing supervision. A licensed facility that provides extended congregate care services must also provide each resident with a written copy of facility policies governing admission and retention.
5. The primary purpose of extended congregate care services is to allow residents, as they become more impaired, the option of remaining in a familiar setting from which they would otherwise be disqualified for continued residency. A facility licensed to provide extended congregate care services may also admit an individual who exceeds the admission criteria for a facility with a standard license, if the individual is determined appropriate for admission to the extended congregate care facility.
6. Before the admission of an individual to a facility licensed to provide extended congregate care services, the individual must undergo a medical examination as provided in s. 429.26(4) and the facility must develop a preliminary service plan for the individual.
7. When a facility can no longer provide or arrange for services in accordance with the resident’s service plan and needs and the facility’s policy, the facility shall make arrangements for relocating the person in accordance with s. 429.28(1)(k).
8. Failure to provide extended congregate care services may result in denial of extended congregate care license renewal.
(c) A limited nursing services license shall be issued to a facility that provides services beyond those authorized in paragraph (a) and as specified in this paragraph.
1. In order for limited nursing services to be provided in a facility licensed under this part, the agency must first determine that all requirements established in law and rule are met and must specifically designate, on the facility’s license, that such services may be provided. Such designation may be made at the time of initial licensure or relicensure, or upon request in writing by a licensee under this part and part II of chapter 408. Notification of approval or denial of such request shall be made in accordance with part II of chapter 408. Existing facilities qualifying to provide limited nursing services shall have maintained a standard license and may not have been subject to administrative sanctions that affect the health, safety, and welfare of residents for the previous 2 years or since initial licensure if the facility has been licensed for less than 2 years.
2. Facilities that are licensed to provide limited nursing services shall maintain a written progress report on each person who receives such nursing services, which report describes the type, amount, duration, scope, and outcome of services that are rendered and the general status of the resident’s health. A registered nurse representing the agency shall visit such facilities at least twice a year to monitor residents who are receiving limited nursing services and to determine if the facility is in compliance with applicable provisions of this part, part II of chapter 408, and related rules. The monitoring visits may be provided through contractual arrangements with appropriate community agencies. A registered nurse shall also serve as part of the team that inspects such facility.
3. A person who receives limited nursing services under this part must meet the admission criteria established by the agency for assisted living facilities. When a resident no longer meets the admission criteria for a facility licensed under this part, arrangements for relocating the person shall be made in accordance with s. 429.28(1)(k), unless the facility is licensed to provide extended congregate care services.
(4) 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.
(a) The biennial license fee required of a facility is $300 per license, with an additional fee of $50 per resident based on the total licensed resident capacity of the facility, except that no additional fee will be assessed for beds designated for recipients of optional state supplementation payments provided for in s. 409.212. The total fee may not exceed $10,000.
(b) In addition to the total fee assessed under paragraph (a), the agency shall require facilities that are licensed to provide extended congregate care services under this part to pay an additional fee per licensed facility. The amount of the biennial fee shall be $400 per license, with an additional fee of $10 per resident based on the total licensed resident capacity of the facility.
(c) In addition to the total fee assessed under paragraph (a), the agency shall require facilities that are licensed to provide limited nursing services under this part to pay an additional fee per licensed facility. The amount of the biennial fee shall be $250 per license, with an additional fee of $10 per resident based on the total licensed resident capacity of the facility.
(5) Counties or municipalities applying for licenses under this part are exempt from the payment of license fees.
History.—s. 6, ch. 75-233; s. 8, ch. 79-12; ss. 12, 16, ch. 80-198; s. 2, ch. 81-318; ss. 43, 79, 83, ch. 83-181; s. 2, ch. 86-104; s. 5, ch. 87-371; s. 11, ch. 89-294; s. 5, ch. 91-263; s. 10, ch. 91-282; s. 22, ch. 93-177; ss. 4, 38, 39, ch. 93-216; s. 20, ch. 95-146; s. 9, ch. 95-210; ss. 2, 18, 23, ch. 95-418; s. 3, ch. 97-82; s. 18, ch. 97-96; s. 3, ch. 98-80; s. 99, ch. 2000-318; s. 33, ch. 2001-45; ss. 2, 31, ch. 2006-197; s. 101, ch. 2007-5; s. 139, ch. 2007-230; s. 141, ch. 2010-102.
Note.—Former s. 400.407.
429.075 Limited mental health license.—An assisted living facility that serves three or more mental health residents must obtain a limited mental health license.
(1) To obtain a limited mental health license, a facility must hold a standard license as an assisted living facility, must not have any current uncorrected deficiencies or violations, and must ensure that, within 6 months after receiving a limited mental health license, the facility administrator and the staff of the facility who are in direct contact with mental health residents must complete training of no less than 6 hours related to their duties. Such designation may be made at the time of initial licensure or relicensure or upon request in writing by a licensee under this part and part II of chapter 408. Notification of approval or denial of such request shall be made in accordance with this part, part II of chapter 408, and applicable rules. This training will be provided by or approved by the Department of Children and Family Services.
(2) Facilities licensed to provide services to mental health residents shall provide appropriate supervision and staffing to provide for the health, safety, and welfare of such residents.
(3) A facility that has a limited mental health license must:
(a) Have a copy of each mental health resident’s community living support plan and the cooperative agreement with the mental health care services provider. The support plan and the agreement may be combined.
(b) Have documentation that is provided by the Department of Children and Family Services that each mental health resident has been assessed and determined to be able to live in the community in an assisted living facility with a limited mental health license.
(c) Make the community living support plan available for inspection by the resident, the resident’s legal guardian, the resident’s health care surrogate, and other individuals who have a lawful basis for reviewing this document.
(d) Assist the mental health resident in carrying out the activities identified in the individual’s community living support plan.
(4) A facility with a limited mental health license may enter into a cooperative agreement with a private mental health provider. For purposes of the limited mental health license, the private mental health provider may act as the case manager.
History.—s. 3, ch. 95-418; s. 37, ch. 96-169; s. 4, ch. 97-82; s. 66, ch. 97-100; s. 4, ch. 98-80; s. 2, ch. 2006-197; s. 140, ch. 2007-230.
Note.—Former s. 400.4075.
429.08 Unlicensed facilities; referral of person for residency to unlicensed facility; penalties.—
(1)(a) This section applies to the unlicensed operation of an assisted living facility in addition to the requirements of part II of chapter 408.
(b) Except as provided under paragraph (d), any person who owns, operates, or maintains an unlicensed assisted living facility 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.
(c) Any person found guilty of violating paragraph (a) 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.
(d) Any person who owns, operates, or maintains an unlicensed assisted living facility due to a change in this part or a modification in rule within 6 months after the effective date of such change and who, within 10 working days after receiving notification from the agency, fails to cease operation or apply for a license under this part 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.
(e) The agency shall publish a list, by county, of licensed assisted living facilities. This information may be provided electronically or through the agency’s Internet site.
(2) It is unlawful to knowingly refer a person for residency to an unlicensed assisted living facility; to an assisted living facility the license of which is under denial or has been suspended or revoked; or to an assisted living facility that has a moratorium pursuant to part II of chapter 408.
(a) Any health care practitioner, as defined in s. 456.001, who is aware of the operation of an unlicensed facility shall report that facility to the agency. Failure to report a facility that the practitioner knows or has reasonable cause to suspect is unlicensed shall be reported to the practitioner’s licensing board.
(b) Any provider as defined in s. 408.803 which knowingly discharges a patient or client to an unlicensed facility is subject to sanction by the agency.
(c) Any employee of the agency or department, or the Department of Children and Family Services, who knowingly refers a person for residency to an unlicensed facility; to a facility the license of which is under denial or has been suspended or revoked; or to a facility that has a moratorium pursuant to part II of chapter 408 is subject to disciplinary action by the agency or department, or the Department of Children and Family Services.
(d) The employer of any person who is under contract with the agency or department, or the Department of Children and Family Services, and who knowingly refers a person for residency to an unlicensed facility; to a facility the license of which is under denial or has been suspended or revoked; or to a facility that has a moratorium pursuant to part II of chapter 408 shall be fined and required to prepare a corrective action plan designed to prevent such referrals.
History.—s. 17, ch. 88-350; s. 6, ch. 91-263; s. 29, ch. 92-33; ss. 5, 39, ch. 93-216; s. 10, ch. 95-210; ss. 4, 48, ch. 95-418; s. 5, ch. 98-80; s. 1, ch. 99-179; s. 1, ch. 2000-318; s. 36, ch. 2001-62; s. 2, ch. 2004-344; ss. 2, 33, ch. 2006-197; s. 141, ch. 2007-230; s. 60, ch. 2009-223.
Note.—Former s. 400.408.
429.11 Initial application for license; provisional license.—
(1) Each applicant for licensure must comply with all provisions of part II of chapter 408 and must:
(a) Identify all other homes or facilities, including the addresses and the license or licenses under which they operate, if applicable, which are currently operated by the applicant or administrator and which provide housing, meals, and personal services to residents.
(b) Provide 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.
(c) Provide the name, address, date of birth, social security number, education, and experience of the administrator, if different from the applicant.
(2) The applicant shall provide proof of liability insurance as defined in s. 624.605.
(3) If the applicant is a community residential home, the applicant must provide proof that it has met the requirements specified in chapter 419.
(4) The applicant must furnish proof that the facility has received a satisfactory firesafety inspection. The local authority having jurisdiction or the State Fire Marshal must conduct the inspection within 30 days after written request by the applicant.
(5) The applicant must furnish documentation of a satisfactory sanitation inspection of the facility by the county health department.
(6) In addition to the license categories available in s. 408.808, a provisional license may be issued to an applicant making initial application for licensure or making application for a change of ownership. A provisional license shall be limited in duration to a specific period of time not to exceed 6 months, as determined by the agency.
(7) A county or municipality may not issue an occupational license that is being obtained for the purpose of operating a facility regulated under this part without first ascertaining that the applicant has been licensed to operate such facility at the specified location or locations by the agency. The agency shall furnish to local agencies responsible for issuing occupational licenses sufficient instruction for making such determinations.
History.—s. 7, ch. 75-233; s. 3, ch. 77-323; ss. 12, 17, ch. 80-198; s. 2, ch. 81-318; ss. 7, 19, ch. 82-148; ss. 44, 47, 79, 83, ch. 83-181; s. 5, ch. 85-145; s. 1, ch. 85-251; s. 6, ch. 87-371; s. 12, ch. 89-294; s. 7, ch. 91-263; ss. 6, 38, 39, ch. 93-216; s. 5, ch. 95-418; s. 6, ch. 98-80; s. 42, ch. 98-171; ss. 2, 34, ch. 2006-197; s. 142, ch. 2007-230.
Note.—Former s. 400.411.
429.12 Sale or transfer of ownership of a facility.—It is the intent of the Legislature to protect the rights of the residents of an assisted living facility when the facility is sold or the ownership thereof is transferred. Therefore, in addition to the requirements of part II of chapter 408, whenever a facility is sold or the ownership thereof is transferred, including leasing:
(1) The transferee shall notify the residents, in writing, of the change of ownership within 7 days after receipt of the new license.
(2) The transferor of a facility the license of which is denied pending an administrative hearing shall, as a part of the written change-of-ownership contract, advise the transferee that a plan of correction must be submitted by the transferee and approved by the agency at least 7 days before the change of ownership and that failure to correct the condition which resulted in the moratorium pursuant to part II of chapter 408 or denial of licensure is grounds for denial of the transferee’s license.
History.—ss. 45, 83, ch. 83-181; s. 7, ch. 87-371; s. 8, ch. 91-263; ss. 7, 38, 39, ch. 93-216; s. 772, ch. 95-148; s. 11, ch. 95-210; s. 6, ch. 95-418; ss. 2, 35, ch. 2006-197; s. 143, ch. 2007-230.
Note.—Former s. 400.412.
429.14 Administrative penalties.—
(1) In addition to the requirements of part II of chapter 408, the agency may deny, revoke, and suspend any license issued under this part and impose an administrative fine in the manner provided in chapter 120 against a licensee for a violation of any provision of this part, part II of chapter 408, or applicable rules, or for any of the following actions by a licensee, for the actions of any person subject to level 2 background screening under s. 408.809, or for the actions of any facility employee:
(a) An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility.
(b) The determination by the agency that the owner lacks the financial ability to provide continuing adequate care to residents.
(c) Misappropriation or conversion of the property of a resident of the facility.
(d) 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 facility resident.
(e) A citation of any of the following deficiencies as specified in s. 429.19:
1. One or more cited class I deficiencies.
2. Three or more cited class II deficiencies.
3. Five or more cited class III deficiencies that have been cited on a single survey and have not been corrected within the times specified.
(f) Failure to comply with the background screening standards of this part, s. 408.809(1), or chapter 435.
(g) Violation of a moratorium.
(h) Failure of the license applicant, the licensee during relicensure, or a licensee that holds a provisional license to meet the minimum license requirements of this part, or related rules, at the time of license application or renewal.
(i) An intentional or negligent life-threatening act in violation of the uniform firesafety standards for assisted living facilities or other firesafety standards that threatens the health, safety, or welfare of a resident of a facility, as communicated to the agency by the local authority having jurisdiction or the State Fire Marshal.
(j) Knowingly operating any unlicensed facility or providing without a license any service that must be licensed under this chapter or chapter 400.
(k) Any act constituting a ground upon which application for a license may be denied.
(2) Upon notification by the local authority having jurisdiction or by the State Fire Marshal, the agency may deny or revoke the license of an assisted living facility that fails to correct cited fire code violations that affect or threaten the health, safety, or welfare of a resident of a facility.
(3) The agency may deny a license to any applicant or controlling interest as defined in part II of chapter 408 which has or had a 25-percent or greater financial or ownership interest in any other facility licensed under this part, or in any entity licensed by this state or another state to provide health or residential care, which facility or entity during the 5 years prior to the application for a license closed due to financial inability to operate; had a receiver appointed or a license denied, suspended, or revoked; was subject to a moratorium; or had an injunctive proceeding initiated against it.
(4) The agency shall deny or revoke the license of an assisted living facility that has two or more class I violations that are similar or identical to violations identified by the agency during a survey, inspection, monitoring visit, or complaint investigation occurring within the previous 2 years.
(5) An action taken by the agency to suspend, deny, or revoke a facility’s license under this part or part II of chapter 408, in which the agency claims that the facility owner or an employee of the facility has threatened the health, safety, or welfare of a resident of the 1facility be heard by the Division of Administrative Hearings of the Department of Management Services within 120 days after receipt of the facility’s request for a hearing, unless that 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 shall provide to the Division of Hotels and Restaurants of the Department of Business and Professional Regulation, on a monthly basis, a list of those assisted living facilities that have had their licenses denied, suspended, or revoked or that are involved in an appellate proceeding pursuant to s. 120.60 related to the denial, suspension, or revocation of a license.
(7) Agency notification of a license suspension or revocation, or denial of a license renewal, shall be posted and visible to the public at the facility.
History.—s. 8, ch. 75-233; ss. 12, 18, ch. 80-198; s. 2, ch. 81-318; ss. 46, 79, 83, ch. 83-181; s. 8, ch. 87-371; s. 13, ch. 89-294; s. 30, ch. 91-71; s. 46, ch. 92-58; ss. 8, 38, 39, ch. 93-216; s. 50, ch. 94-218; s. 39, ch. 95-228; s. 7, ch. 95-418; s. 38, ch. 96-169; s. 126, ch. 96-410; s. 7, ch. 98-80; s. 43, ch. 98-171; s. 73, ch. 2000-349; s. 34, ch. 2001-45; s. 19, ch. 2003-57; s. 13, ch. 2004-267; ss. 2, 36, ch. 2006-197; s. 144, ch. 2007-230; s. 61, ch. 2009-223; s. 28, ch. 2010-114.
Note.—Former s. 400.414.
429.17 Expiration of license; renewal; conditional license.—
(1) Limited nursing, extended congregate care, and limited mental health licenses shall expire at the same time as the facility’s standard license, regardless of when issued.
(2) A license shall be renewed in accordance with part II of chapter 408 and the provision of satisfactory proof of ability to operate and conduct the facility in accordance with the requirements of this part and adopted rules, including proof that the facility has received a satisfactory firesafety inspection, conducted by the local authority having jurisdiction or the State Fire Marshal, within the preceding 12 months.
(3) In addition to the requirements of part II of chapter 408, each facility must report to the agency any adverse court action concerning the facility’s financial viability, within 7 days after its occurrence. The agency shall have access to books, records, and any other financial documents maintained by the facility to the extent necessary to determine the facility’s financial stability.
(4) In addition to the license categories available in s. 408.808, a conditional license may be issued to an applicant for license renewal if the applicant fails to meet all standards and requirements for licensure. A conditional license issued under this subsection shall be limited in duration to a specific period of time not to exceed 6 months, as determined by the agency, and shall be accompanied by an agency-approved plan of correction.
(5) When an extended care or limited nursing license is requested during a facility’s biennial license period, the fee shall be prorated in order to permit the additional license to expire at the end of the biennial license period. The fee shall be calculated as of the date the additional license application is received by the agency.
(6) The department may by rule establish renewal procedures, identify forms, and specify documentation necessary to administer this section. The agency, in consultation with the department, may adopt rules to administer the requirements of part II of chapter 408.
History.—s. 9, ch. 75-233; ss. 12, 19, ch. 80-198; s. 2, ch. 81-318; ss. 9, 19, ch. 82-148; ss. 47, 79, 83, ch. 83-181; s. 2, ch. 88-350; s. 14, ch. 89-294; s. 9, ch. 91-263; s. 23, ch. 93-177; ss. 10, 38, 39, ch. 93-216; s. 9, ch. 95-418; s. 9, ch. 98-80; s. 44, ch. 98-171; s. 212, ch. 99-13; s. 20, ch. 2003-57; ss. 2, 38, ch. 2006-197; s. 146, ch. 2007-230.
Note.—Former s. 400.417.
429.174 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. 15, 25, ch. 89-294; ss. 11, 38, 39, ch. 93-216; s. 10, ch. 98-80; ss. 45, 71, ch. 98-171; s. 142, ch. 98-403; s. 213, ch. 99-13; s. 74, ch. 2000-349; s. 25, ch. 2001-53; s. 2, ch. 2001-67; s. 148, ch. 2001-277; s. 418, ch. 2003-261; s. 14, ch. 2004-267; ss. 2, 39, ch. 2006-197; s. 147, ch. 2007-230; s. 29, ch. 2010-114.
Note.—Former s. 400.4174.
429.176 Notice of change of administrator.—If, during the period for which a license is issued, the owner changes administrators, the owner must notify the agency of the change within 10 days and provide documentation within 90 days that the new administrator has completed the applicable core educational requirements under s. 429.52.
History.—ss. 44, 83, ch. 83-181; s. 10, ch. 91-263; ss. 12, 38, 39, ch. 93-216; ss. 10, 24, ch. 95-418; s. 11, ch. 98-80; s. 46, ch. 98-171; ss. 2, 40, ch. 2006-197; s. 148, ch. 2007-230.
Note.—Former s. 400.4176.
429.177 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. 2, ch. 93-105; s. 2, ch. 2006-197.
Note.—Former s. 400.4177.
429.178 Special care for persons with Alzheimer’s disease or other related disorders.—
(1) A facility which advertises that it provides special care for persons with Alzheimer’s disease or other related disorders must meet the following standards of operation:
(a)1. If the facility has 17 or more residents, have an awake staff member on duty at all hours of the day and night; or
2. If the facility has fewer than 17 residents, have an awake staff member on duty at all hours of the day and night or have mechanisms in place to monitor and ensure the safety of the facility’s residents.
(b) Offer activities specifically designed for persons who are cognitively impaired.
(c) Have a physical environment that provides for the safety and welfare of the facility’s residents.
(d) Employ staff who have completed the training and continuing education required in subsection (2).
(2)(a) An individual who is employed by a facility that provides special care for residents with Alzheimer’s disease or other related disorders, and who has regular contact with such residents, must complete up to 4 hours of initial dementia-specific training developed or approved by the department. The training shall be completed within 3 months after beginning employment and shall satisfy the core training requirements of s. 429.52(2)(g).
(b) A direct caregiver who is employed by a facility that provides special care for residents with Alzheimer’s disease or other related disorders, and who provides direct care to such residents, must complete the required initial training and 4 additional hours of training developed or approved by the department. The training shall be completed within 9 months after beginning employment and shall satisfy the core training requirements of s. 429.52(2)(g).
(c) An individual who is employed by a facility that provides special care for residents with Alzheimer’s disease or other related disorders, but who only has incidental contact with such residents, must be given, at a minimum, general information on interacting with individuals with Alzheimer’s disease or other related disorders, within 3 months after beginning employment.
(3) In addition to the training required under subsection (2), a direct caregiver must participate in a minimum of 4 contact hours of continuing education each calendar year. The continuing education must include one or more topics included in the dementia-specific training developed or approved by the department, in which the caregiver has not received previous training.
(4) Upon completing any training listed in subsection (2), 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. The employee or direct caregiver must comply with other applicable continuing education requirements.
(5) The department, or its designee, shall approve the initial and continuing education courses and providers.
(6) The department shall keep a current list of providers who are approved to provide initial and continuing education for staff of facilities that provide special care for persons with Alzheimer’s disease or other related disorders.
(7) Any facility more than 90 percent of whose residents receive monthly optional supplementation payments is not required to pay for the training and education programs required under this section. A facility that has one or more such residents shall pay a reduced fee that is proportional to the percentage of such residents in the facility. A facility that does not have any residents who receive monthly optional supplementation payments must pay a reasonable fee, as established by the department, for such training and education programs.
(8) The department shall adopt rules to establish standards for trainers and training and to implement this section.
History.—s. 15, ch. 97-82; ss. 2, 41, ch. 2006-197.
Note.—Former s. 400.4178.
429.18 Disposition of fees and administrative fines.—Income from fees and fines collected under this part shall be directed to and used by the agency for the following purposes:
(1) Up to 50 percent of the trust funds accrued each fiscal year under this part may be used to offset the expenses of receivership, pursuant to s. 429.22, if the court determines that the income and assets of the facility are insufficient to provide for adequate management and operation.
(2) An amount of $5,000 of the trust funds accrued each year under this part shall be allocated to pay for inspection-related physical and mental health examinations requested by the agency pursuant to s. 429.26 for residents who are either recipients of supplemental security income or have monthly incomes not in excess of the maximum combined federal and state cash subsidies available to supplemental security income recipients, as provided for in s. 409.212. Such funds shall only be used where the resident is ineligible for Medicaid.
(3) Any trust funds accrued each year under this part and not used for the purposes specified in subsections (1) and (2) shall be used to offset the costs of the licensure program, verifying information submitted, defraying the costs of processing the names of applicants, and conducting inspections and monitoring visits pursuant to this part and part II of chapter 408.
History.—ss. 12, 20, ch. 80-198; s. 2, ch. 81-318; ss. 8, 19, ch. 82-148; ss. 48, 75, 79, 83, ch. 83-181; s. 53, ch. 83-218; s. 16, ch. 89-294; s. 11, ch. 91-263; s. 11, ch. 91-282; ss. 13, 38, 39, ch. 93-216; s. 19, ch. 95-418; s. 12, ch. 98-80; ss. 2, 42, ch. 2006-197; s. 149, ch. 2007-230.
Note.—Former s. 400.418.
429.19 Violations; imposition of administrative fines; grounds.—
(1) In addition to the requirements of part II of chapter 408, the agency shall impose an administrative fine in the manner provided in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility, for the actions of any person subject to level 2 background screening under s. 408.809, for the actions of any facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility.
(2) Each violation of this part and adopted rules shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows:
(a) Class “I” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class I violation in an amount not less than $5,000 and not exceeding $10,000 for each violation.
(b) Class “II” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class II violation in an amount not less than $1,000 and not exceeding $5,000 for each violation.
(c) Class “III” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class III violation in an amount not less than $500 and not exceeding $1,000 for each violation.
(d) Class “IV” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class IV violation in an amount not less than $100 and not exceeding $200 for each violation.
(3) For purposes of this section, 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 resident 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 or administrator to correct violations.
(c) Any previous violations.
(d) The financial benefit to the facility of committing or continuing the violation.
(e) The licensed capacity of the facility.
(4) 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.
(5) Any action taken to correct a violation shall be documented in writing by the owner or administrator of the facility and verified through followup visits by agency personnel. The agency may impose a fine and, in the case of an owner-operated facility, revoke or deny a facility’s license when a facility administrator fraudulently misrepresents action taken to correct a violation.
(6) Any facility whose owner fails to apply for a change-of-ownership license in accordance with part II of chapter 408 and operates the facility under the new ownership is subject to a fine of $5,000.
(7) In addition to any administrative fines imposed, the agency may assess a survey fee, equal to the lesser of one half of the facility’s biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under s. 429.28(3)(c) to verify the correction of the violations.
(8) During an inspection, the agency shall make a reasonable attempt to discuss each violation with the owner or administrator of the facility, prior to written notification.
(9) The agency shall develop and disseminate an annual list of all facilities sanctioned or fined for violations of state standards, the number and class of violations involved, the penalties imposed, and the current status of cases. The list shall be disseminated, at no charge, to the Department of Elderly Affairs, the Department of Health, the Department of Children and Family Services, the Agency for Persons with Disabilities, the area agencies on aging, the Florida Statewide Advocacy Council, and the state and local ombudsman councils. The Department of Children and Family Services shall disseminate the list to service providers under contract to the department who are responsible for referring persons to a facility for residency. The agency may charge a fee commensurate with the cost of printing and postage to other interested parties requesting a copy of this list. This information may be provided electronically or through the agency’s Internet site.
History.—ss. 12, 21, ch. 80-198; s. 254, ch. 81-259; s. 2, ch. 81-318; ss. 49, 75, 79, 83, ch. 83-181; s. 53, ch. 83-218; s. 17, ch. 89-294; s. 12, ch. 91-263; ss. 14, 38, 39, ch. 93-216; s. 13, ch. 98-80; s. 2, ch. 99-179; s. 19, ch. 2000-263; s. 142, ch. 2000-349; s. 62, ch. 2000-367; s. 35, ch. 2001-45; s. 21, ch. 2003-57; ss. 2, 43, ch. 2006-197; s. 41, ch. 2006-227; s. 150, ch. 2007-230; s. 62, ch. 2009-223.
Note.—Former s. 400.419.
429.195 Rebates prohibited; penalties.—
(1) An assisted living facility licensed under this part may not contract or promise to pay or receive any commission, bonus, kickback, or rebate or engage in any split-fee arrangement in any form whatsoever with any person, health care provider, or health care facility as provided under s. 817.505.
(2) This section does not apply to:
(a) An individual employed by the assisted living facility, or with whom the facility contracts to provide marketing services for the facility, if the individual clearly indicates that he or she works with or for the facility.
(b) Payments by an assisted living facility to a referral service that provides information, consultation, or referrals to consumers to assist them in finding appropriate care or housing options for seniors or disabled adults if the referred consumers are not Medicaid recipients.
(c) A resident of an assisted living facility who refers a friend, family members, or other individuals with whom the resident has a personal relationship to the assisted living facility, in which case the assisted living facility may provide a monetary reward to the resident for making such referral.
(3) A violation of this section is patient brokering and is punishable as provided in s. 817.505.
History.—ss. 18, 25, ch. 89-294; s. 13, ch. 91-263; ss. 15, 38, 39, ch. 93-216; s. 773, ch. 95-148; s. 12, ch. 95-210; s. 14, ch. 98-80; s. 2, ch. 2006-197; s. 29, ch. 2012-160.
Note.—Former s. 400.4195.
429.20 Certain solicitation prohibited; third-party supplementation.—
(1) A person may not, in connection with the solicitation of contributions by or on behalf of an assisted living facility or facilities, misrepresent or mislead any person, by any manner, means, practice, or device whatsoever, to believe that the receipts of such solicitation will be used for charitable purposes, if that is not the fact.
(2) Solicitation of contributions of any kind in a threatening, coercive, or unduly forceful manner by or on behalf of an assisted living facility or facilities by any agent, employee, owner, or representative of any assisted living facility or facilities is grounds for denial, suspension, or revocation of the license of the assisted living facility or facilities by or on behalf of which such contributions were solicited.
(3) The admission or maintenance of assisted living facility residents whose care is supported, in whole or in part, by state funds may not be conditioned upon the receipt of any manner of contribution or donation from any person. The solicitation or receipt of contributions in violation of this subsection is grounds for denial, suspension, or revocation of license, as provided in s. 429.14, for any assisted living facility by or on behalf of which such contributions were solicited.
(4) An assisted living facility may accept additional supplementation from third parties on behalf of residents receiving optional state supplementation in accordance with s. 409.212.
History.—ss. 50, 83, ch. 83-181; ss. 16, 38, 39, ch. 93-216; s. 13, ch. 95-210; ss. 2, 44, ch. 2006-197.
Note.—Former s. 400.42.
429.22 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, if suitable alternate placements are not available, when any of the following conditions exist:
(a) The facility is operating without a license and refuses to make application for a license as required by ss. 429.07 and 429.08.
(b) The facility is closing or has informed the agency that it intends to close 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.
(c) The agency determines there exist in the facility conditions 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 facility cannot meet its financial obligation for providing food, shelter, care, and utilities.
(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, by certified mail, the owner or administrator of the facility named in the petition and the facility resident or, if applicable, the resident’s representative or designee, or the resident’s surrogate, guardian, or attorney in fact, of its filing, the substance of the violation, and the date and place set for the hearing. The court shall grant the petition only upon finding that the health, safety, or welfare of facility residents would be threatened if a condition existing at the time the petition was filed is permitted to continue. A receiver shall not be appointed ex parte 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 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 qualified person as a receiver, except it 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 may 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 must 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.
(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, if 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.
(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 the receivership, or which, in the case of a purchase agreement, become due during the period of the 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 and 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, assets, and records of residents 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 immediately 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 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 direct the agency to allocate funds from the Health Care Trust Fund to the receiver, subject to the provisions of s. 429.18.
(10) 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 the agency grants the facility a new license; or
(b) All of the residents in the facility have been transferred or discharged.
(11) Within 30 days after termination, the receiver shall give the court a complete accounting of all property of which the receiver has taken possession, of all funds collected, and of the expenses of the receivership.
(12) 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 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.
History.—ss. 12, 22, ch. 80-198; s. 255, ch. 81-259; s. 2, ch. 81-318; ss. 51, 75, 79, 83, ch. 83-181; s. 53, ch. 83-218; s. 14, ch. 91-263; ss. 18, 38, 39, ch. 93-216; s. 774, ch. 95-148; s. 15, ch. 98-80; ss. 2, 45, ch. 2006-197; s. 152, ch. 2007-230.
Note.—Former s. 400.422.
429.23 Internal risk management and quality assurance program; adverse incidents and reporting requirements.—
(1) Every facility licensed under this part may, as part of its administrative functions, voluntarily establish a risk management and quality assurance program, the purpose of which is to assess resident care practices, facility incident reports, deficiencies cited by the agency, adverse incident reports, and resident grievances and develop plans of action to correct and respond quickly to identify quality differences.
(2) Every facility licensed under this part is required to maintain adverse incident reports. For purposes of this section, the term, “adverse incident” means:
(a) An event over which facility personnel could exercise control rather than as a result of the resident’s condition and results in:
1. Death;
2. Brain or spinal damage;
3. Permanent disfigurement;
4. Fracture or dislocation of bones or joints;
5. Any condition that required medical attention to which the resident has not given his or her consent, including failure to honor advanced directives;
6. Any condition that requires the transfer of the resident from the facility to a unit providing more acute care due to the incident rather than the resident’s condition before the incident; or
7. 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.
(3) Licensed facilities shall provide within 1 business day after the occurrence of an adverse incident, by electronic mail, facsimile, or United States mail, a preliminary report to the agency on all adverse incidents specified under this section. The report must include information regarding the identity of the affected resident, the type of adverse incident, and the status of the facility’s investigation of the incident.
(4) Licensed facilities shall provide within 15 days, by electronic mail, facsimile, or United States mail, a full report to the agency on all adverse incidents specified in this section. The report must include the results of the facility’s investigation into the adverse incident.
(5) Each facility shall report monthly to the agency any liability claim filed against it. The report must include the name of the resident, the dates of the incident leading to the claim, if applicable, and the type of injury or violation of rights alleged to have occurred. This report is not discoverable in any civil or administrative action, except in such actions brought by the agency to enforce the provisions of this part.
(6) Abuse, neglect, or exploitation must be reported to the Department of Children and Family Services as required under chapter 415.
(7) The information reported to the agency pursuant to subsection (3) which relates to persons licensed under chapter 458, chapter 459, chapter 461, chapter 464, or chapter 465 shall be reviewed by the agency. The agency shall determine whether any of the incidents potentially involved conduct by a health care professional who is subject to disciplinary action, in which case the provisions of s. 456.073 apply. 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 incident and determine whether it potentially involved conduct by a health care professional who is subject to disciplinary action, in which case the provisions of s. 456.073 apply.
(8) If the agency, through its receipt of the adverse incident reports prescribed in this part or through any investigation, has reasonable belief that conduct by a staff member or employee of a licensed facility is grounds for disciplinary action by the appropriate board, the agency shall report this fact to such regulatory board.
(9) The adverse incident reports and preliminary adverse incident reports required under this section are confidential as provided by law and are not discoverable or admissible in any civil or administrative action, except in disciplinary proceedings by the agency or appropriate regulatory board.
(10) The Department of Elderly Affairs may adopt rules necessary to administer this section.
History.—s. 36, ch. 2001-45; s. 2, ch. 2006-197; s. 63, ch. 2009-223.
Note.—Former s. 400.423.
429.24 Contracts.—
(1) The presence of each resident in a facility shall be covered by a contract, executed at the time of admission or prior thereto, between the licensee and the resident or his or her designee or legal representative. Each party to the contract shall be provided with a duplicate original thereof, and the licensee shall keep on file in the facility all such contracts. The licensee may not destroy or otherwise dispose of any such contract until 5 years after its expiration.
(2) Each contract must contain express provisions specifically setting forth the services and accommodations to be provided by the facility; the rates or charges; provision for at least 30 days’ written notice of a rate increase; the rights, duties, and obligations of the residents, other than those specified in s. 429.28; and other matters that the parties deem appropriate. Whenever money is deposited or advanced by a resident in a contract as security for performance of the contract agreement or as advance rent for other than the next immediate rental period:
(a) Such funds shall be deposited in a banking institution in this state that is located, if possible, in the same community in which the facility is located; shall be kept separate from the funds and property of the facility; may not be represented as part of the assets of the facility on financial statements; and shall be used, or otherwise expended, only for the account of the resident.
(b) The licensee shall, within 30 days of receipt of advance rent or a security deposit, notify the resident or residents in writing of the manner in which the licensee is holding the advance rent or security deposit and state the name and address of the depository where the moneys are being held. The licensee shall notify residents of the facility’s policy on advance deposits.
(3)(a) The contract shall include a refund policy to be implemented at the time of a resident’s transfer, discharge, or death. The refund policy shall provide that the resident or responsible party is entitled to a prorated refund based on the daily rate for any unused portion of payment beyond the termination date after all charges, including the cost of damages to the residential unit resulting from circumstances other than normal use, have been paid to the licensee. For the purpose of this paragraph, the termination date shall be the date the unit is vacated by the resident and cleared of all personal belongings. If the amount of belongings does not preclude renting the unit, the facility may clear the unit and charge the resident or his or her estate for moving and storing the items at a rate equal to the actual cost to the facility, not to exceed 20 percent of the regular rate for the unit, provided that 14 days’ advance written notification is given. If the resident’s possessions are not claimed within 45 days after notification, the facility may dispose of them. The contract shall also specify any other conditions under which claims will be made against the refund due the resident. Except in the case of death or a discharge due to medical reasons, the refunds shall be computed in accordance with the notice of relocation requirements specified in the contract. However, a resident may not be required to provide the licensee with more than 30 days’ notice of termination. If after a contract is terminated, the facility intends to make a claim against a refund due the resident, the facility shall notify the resident or responsible party in writing of the claim and shall provide said party with a reasonable time period of no less than 14 calendar days to respond. The facility shall provide a refund to the resident or responsible party within 45 days after the transfer, discharge, or death of the resident. The agency shall impose a fine upon a facility that fails to comply with the refund provisions of the paragraph, which fine shall be equal to three times the amount due to the resident. One-half of the fine shall be remitted to the resident or his or her estate, and the other half to the Health Care Trust Fund to be used for the purpose specified in s. 429.18.
(b) If a licensee agrees to reserve a bed for a resident who is admitted to a medical facility, including, but not limited to, a nursing home, health care facility, or psychiatric facility, the resident or his or her responsible party shall notify the licensee of any change in status that would prevent the resident from returning to the facility. Until such notice is received, the agreed-upon daily rate may be charged by the licensee.
(c) The purpose of any advance payment and a refund policy for such payment, including any advance payment for housing, meals, or personal services, shall be covered in the contract.
(4) The contract shall state whether or not the facility is affiliated with any religious organization and, if so, which organization and its general responsibility to the facility.
(5) Neither the contract nor any provision thereof relieves any licensee of any requirement or obligation imposed upon it by this part or rules adopted under this part.
(6) In lieu of the provisions of this section, facilities certified under chapter 651 shall comply with the requirements of s. 651.055.
(7) Notwithstanding the provisions of this section, facilities which consist of 60 or more apartments may require refund policies and termination notices in accordance with the provisions of part II of chapter 83, provided that the lease is terminated automatically without financial penalty in the event of a resident’s death or relocation due to psychiatric hospitalization or to medical reasons which necessitate services or care beyond which the facility is licensed to provide. The date of termination in such instances shall be the date the unit is fully vacated. A lease may be substituted for the contract if it meets the disclosure requirements of this section. For the purpose of this section, the term “apartment” means a room or set of rooms with a kitchen or kitchenette and lavatory located within one or more buildings containing other similar or like residential units.
(8) The department may by rule clarify terms, establish procedures, clarify refund policies and contract provisions, and specify documentation as necessary to administer this section.
History.—s. 11, ch. 75-233; ss. 12, 23, ch. 80-198; s. 2, ch. 81-318; ss. 52, 79, 83, ch. 83-181; s. 10, ch. 87-371; s. 1, ch. 88-364; s. 15, ch. 91-263; ss. 19, 38, 39, ch. 93-216; s. 775, ch. 95-148; s. 2, ch. 98-148; ss. 2, 46, ch. 2006-197.
Note.—Former s. 400.424.
429.255 Use of personnel; emergency care.—
(1)(a) Persons under contract to the facility, facility staff, or volunteers, who are licensed according to part I of chapter 464, or those persons exempt under s. 464.022(1), and others as defined by rule, may administer medications to residents, take residents’ vital signs, manage individual weekly pill organizers for residents who self-administer medication, give prepackaged enemas ordered by a physician, observe residents, document observations on the appropriate resident’s record, report observations to the resident’s physician, and contract or allow residents or a resident’s representative, designee, surrogate, guardian, or attorney in fact to contract with a third party, provided residents meet the criteria for appropriate placement as defined in s. 429.26. Nursing assistants certified pursuant to part II of chapter 464 may take residents’ vital signs as directed by a licensed nurse or physician.
(b) All staff in facilities licensed under this part shall exercise their professional responsibility to observe residents, to document observations on the appropriate resident’s record, and to report the observations to the resident’s physician. However, the owner or administrator of the facility shall be responsible for determining that the resident receiving services is appropriate for residence in the facility.
(c) In an emergency situation, licensed personnel may carry out their professional duties pursuant to part I of chapter 464 until emergency medical personnel assume responsibility for care.
(2) In facilities licensed to provide extended congregate care, persons under contract to the facility, facility staff, or volunteers, who are licensed according to part I of chapter 464, or those persons exempt under s. 464.022(1), or those persons certified as nursing assistants pursuant to part II of chapter 464, may also perform all duties within the scope of their license or certification, as approved by the facility administrator and pursuant to this part.
(3)(a) An assisted living facility licensed under this part with 17 or more beds shall have on the premises at all times a functioning automated external defibrillator as defined in s. 768.1325(2)(b).
(b) The facility is encouraged to register the location of each automated external defibrillator with a local emergency medical services medical director.
(c) The provisions of ss. 768.13 and 768.1325 apply to automated external defibrillators within the facility.
(4) Facility staff may withhold or withdraw cardiopulmonary resuscitation or the use of an automated external defibrillator 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. Facility staff and facilities 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 or use of an automated external defibrillator pursuant to such an order and rules adopted by the department. The absence of an order to resuscitate executed pursuant to s. 401.45 does not preclude a physician from withholding or withdrawing cardiopulmonary resuscitation or use of an automated external defibrillator as otherwise permitted by law.
(5) The Department of Elderly Affairs may adopt rules to implement the provisions of this section relating to use of an automated external defibrillator.
History.—ss. 16, 38, ch. 91-263; ss. 20, 38, 39, ch. 93-216; s. 4, ch. 99-331; s. 3, ch. 2000-295; s. 100, ch. 2000-318; ss. 2, 47, ch. 2006-197; s. 1, ch. 2010-200.
Note.—Former s. 400.4255.
429.256 Assistance with self-administration of medication.—
(1) For the purposes of this section, the term:
(a) “Informed consent” means advising the resident, or the resident’s surrogate, guardian, or attorney in fact, that an assisted living facility is not required to have a licensed nurse on staff, that the resident may be receiving assistance with self-administration of medication from an unlicensed person, and that such assistance, if provided by an unlicensed person, will or will not be overseen by a licensed nurse.
(b) “Unlicensed person” means an individual not currently licensed to practice nursing or medicine who is employed by or under contract to an assisted living facility and who has received training with respect to assisting with the self-administration of medication in an assisted living facility as provided under s. 429.52 prior to providing such assistance as described in this section.
(2) Residents 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 resident 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 resident or the resident’s surrogate, guardian, or attorney in fact. For the 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 resident.
(b) In the presence of the resident, 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 resident’s hand or placing the dosage in another container and helping the resident 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 resident 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 resident.
(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 shall not be considered administration as defined in s. 465.003.
(6) The department may by rule establish facility procedures and interpret terms as necessary to implement this section.
History.—s. 16, ch. 98-80; s. 214, ch. 99-13; ss. 2, 48, ch. 2006-197.
Note.—Former s. 400.4256.
429.26 Appropriateness of placements; examinations of residents.—
(1) The owner or administrator of a facility is responsible for determining the appropriateness of admission of an individual to the facility and for determining the continued appropriateness of residence of an individual in the facility. A determination shall be based upon an assessment of the strengths, needs, and preferences of the resident, the care and services offered or arranged for by the facility in accordance with facility policy, and any limitations in law or rule related to admission criteria or continued residency for the type of license held by the facility under this part. A resident may not be moved from one facility to another without consultation with and agreement from the resident or, if applicable, the resident’s representative or designee or the resident’s family, guardian, surrogate, or attorney in fact. In the case of a resident who has been placed by the department or the Department of Children and Family Services, the administrator must notify the appropriate contact person in the applicable department.
(2) A physician, physician assistant, or nurse practitioner who is employed by an assisted living facility to provide an initial examination for admission purposes may not have financial interest in the facility.
(3) Persons licensed under part I of chapter 464 who are employed by or under contract with a facility shall, on a routine basis or at least monthly, perform a nursing assessment of the residents for whom they are providing nursing services ordered by a physician, except administration of medication, and shall document such assessment, including any substantial changes in a resident’s status which may necessitate relocation to a nursing home, hospital, or specialized health care facility. Such records shall be maintained in the facility for inspection by the agency and shall be forwarded to the resident’s case manager, if applicable.
(4) If possible, each resident shall have been examined by a licensed physician, a licensed physician assistant, or a licensed nurse practitioner within 60 days before admission to the facility. The signed and completed medical examination report shall be submitted to the owner or administrator of the facility who shall use the information contained therein to assist in the determination of the appropriateness of the resident’s admission and continued stay in the facility. The medical examination report shall become a permanent part of the record of the resident at the facility and shall be made available to the agency during inspection or upon request. An assessment that has been completed through the Comprehensive Assessment and Review for Long-Term Care Services (CARES) Program fulfills the requirements for a medical examination under this subsection and s. 429.07(3)(b)6.
(5) Except as provided in s. 429.07, if a medical examination has not been completed within 60 days before the admission of the resident to the facility, a licensed physician, licensed physician assistant, or licensed nurse practitioner shall examine the resident and complete a medical examination form provided by the agency within 30 days following the admission to the facility to enable the facility owner or administrator to determine the appropriateness of the admission. The medical examination form shall become a permanent part of the record of the resident at the facility and shall be made available to the agency during inspection by the agency or upon request.
(6) Any resident accepted in a facility and placed by the department or the Department of Children and Family Services shall have been examined by medical personnel within 30 days before placement in the facility. The examination shall include an assessment of the appropriateness of placement in a facility. The findings of this examination shall be recorded on the examination form provided by the agency. The completed form shall accompany the resident and shall be submitted to the facility owner or administrator. Additionally, in the case of a mental health resident, the Department of Children and Family Services must provide documentation that the individual has been assessed by a psychiatrist, clinical psychologist, clinical social worker, or psychiatric nurse, or an individual who is supervised by one of these professionals, and determined to be appropriate to reside in an assisted living facility. The documentation must be in the facility within 30 days after the mental health resident has been admitted to the facility. An evaluation completed upon discharge from a state mental hospital meets the requirements of this subsection related to appropriateness for placement as a mental health resident providing it was completed within 90 days prior to admission to the facility. The applicable department shall provide to the facility administrator any information about the resident that would help the administrator meet his or her responsibilities under subsection (1). Further, department personnel shall explain to the facility operator any special needs of the resident and advise the operator whom to call should problems arise. The applicable department shall advise and assist the facility administrator where the special needs of residents who are recipients of optional state supplementation require such assistance.
(7) The facility must 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 arrange, with the appropriate health care provider, the necessary care and services to treat the condition.
(8) The Department of Children and Family Services may require an examination for supplemental security income and optional state supplementation recipients residing in facilities at any time and shall provide the examination whenever a resident’s condition requires it. Any facility administrator; personnel of the agency, the department, or the Department of Children and Family Services; or long-term care ombudsman council member who believes a resident needs to be evaluated shall notify the resident’s case manager, who shall take appropriate action. A report of the examination findings shall be provided to the resident’s case manager and the facility administrator to help the administrator meet his or her responsibilities under subsection (1).
(9) A terminally ill resident who no longer meets the criteria for continued residency may remain in the facility if the arrangement is mutually agreeable to the resident and the facility; additional care is rendered through a licensed hospice, and the resident is under the care of a physician who agrees that the physical needs of the resident are being met.
(10) Facilities licensed to provide extended congregate care services shall promote aging in place by determining appropriateness of continued residency based on a comprehensive review of the resident’s physical and functional status; the ability of the facility, family members, friends, or any other pertinent individuals or agencies to provide the care and services required; and documentation that a written service plan consistent with facility policy has been developed and implemented to ensure that the resident’s needs and preferences are addressed.
(11) No resident who requires 24-hour nursing supervision, except for a resident who is an enrolled hospice patient pursuant to part IV of chapter 400, shall be retained in a facility licensed under this part.
History.—ss. 12, 30, ch. 80-198; s. 2, ch. 81-318; ss. 53, 75, 79, 83, ch. 83-181; s. 53, ch. 83-218; s. 6, ch. 85-145; s. 11, ch. 87-371; s. 19, ch. 89-294; s. 17, ch. 91-263; ss. 21, 38, 39, ch. 93-216; s. 776, ch. 95-148; s. 15, ch. 95-210; ss. 25, 49, ch. 95-418; s. 39, ch. 96-169; s. 5, ch. 97-82; s. 215, ch. 99-13; s. 101, ch. 2000-318; s. 75, ch. 2000-349; s. 37, ch. 2001-45; s. 61, ch. 2002-1; ss. 2, 49, ch. 2006-197; s. 153, ch. 2007-230; s. 64, ch. 2009-223.
Note.—Former s. 400.426.
429.27 Property and personal affairs of residents.—
(1)(a) A resident shall be given the option of using his or her own belongings, as space permits; choosing his or her roommate; and, whenever possible, unless the resident is adjudicated incompetent or incapacitated under state law, managing his or her own affairs.
(b) The admission of a resident to a facility and his or her presence therein 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 such persons any authority or responsibility for the personal affairs of the resident, except that which may be necessary for the safe management of the facility or for the safety of the resident.
(2) A facility, or an owner, administrator, employee, or representative thereof, may not act as the guardian, trustee, or conservator for any resident of the assisted living facility or any of such resident’s property. An owner, administrator, or staff member, or representative thereof, may not act as a competent resident’s payee for social security, veteran’s, or railroad benefits without the consent of the resident. Any facility whose owner, administrator, or staff, or representative thereof, serves as representative payee for any resident of the facility shall file a surety bond with the agency in an amount equal to twice the average monthly aggregate income or personal funds due to residents, or expendable for their account, which are received by a facility. Any facility whose owner, administrator, or staff, or a representative thereof, is granted power of attorney for any resident of the facility shall file a surety bond with the agency for each resident for whom such power of attorney is granted. The surety bond shall be in an amount equal to twice the average monthly income of the resident, plus the value of any resident’s property under the control of the attorney in fact. The bond shall be executed by the facility as principal and a licensed surety company. The bond shall be conditioned upon the faithful compliance of the facility with this section and shall run to the agency for the benefit of any resident who suffers a financial loss as a result of the misuse or misappropriation by a facility of funds held pursuant to this subsection. Any surety company that 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. Any facility owner, administrator, or staff, or representative thereof, who is granted power of attorney for any resident of the facility shall, on a monthly basis, be required to provide the resident a written statement of any transaction made on behalf of the resident pursuant to this subsection, and a copy of such statement given to the resident shall be retained in each resident’s file and available for agency inspection.
(3) A facility, upon mutual consent with the resident, shall provide for the safekeeping in the facility of personal effects not in excess of $500 and funds of the resident not in excess of $200 cash, and shall keep complete and accurate records of all such funds and personal effects received. If a resident is absent from a facility for 24 hours or more, the facility may provide for the safekeeping of the resident’s personal effects in excess of $500.
(4) Any funds or other property belonging to or due to a resident, or expendable for his or her account, which is received by a facility shall be trust funds which shall be kept separate from the funds and property of the facility and other residents or shall be specifically credited to such resident. Such trust funds shall be used or otherwise expended only for the account of the resident. At least once every 3 months, unless upon order of a court of competent jurisdiction, the facility shall furnish the resident and his or her guardian, trustee, or conservator, if any, a complete and verified statement of all funds and other property to which this subsection applies, detailing the amount and items received, together with their sources and disposition. In any event, the facility shall furnish such statement annually and upon the discharge or transfer of a resident. Any governmental agency or private charitable agency contributing funds or other property to the account of a resident shall also be entitled to receive such statement annually and upon the discharge or transfer of the resident.
(5) Any personal funds available to facility residents may be used by residents as they choose to obtain clothing, personal items, leisure activities, and other supplies and services for their personal use. A facility may not demand, require, or contract for payment of all or any part of the personal funds in satisfaction of the facility rate for supplies and services beyond that amount agreed to in writing and may not levy an additional charge to the individual or the account for any supplies or services that the facility has agreed by contract to provide as part of the standard monthly rate. Any service or supplies provided by the facility which are charged separately to the individual or the account may be provided only with the specific written consent of the individual, who shall be furnished in advance of the provision of the services or supplies with an itemized written statement to be attached to the contract setting forth the charges for the services or supplies.
(6)(a) In addition to any damages or civil penalties to which a person is subject, any person who:
1. Intentionally withholds a resident’s personal funds, personal property, or personal needs allowance, or who demands, beneficially receives, or contracts for payment of all or any part of a resident’s personal property or personal needs allowance in satisfaction of the facility rate for supplies and services; or
2. Borrows from or pledges any personal funds of a resident, other than the amount agreed to by written contract under s. 429.24,
commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(b) Any facility owner, administrator, or staff, or representative thereof, who is granted power of attorney for any resident of the facility and who misuses or misappropriates funds obtained through this power commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(7) In the event of the death of a resident, a licensee shall return all refunds, funds, and property held in trust to the resident’s personal representative, if one has been appointed at the time the facility 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 facility to the resident. If the resident has no spouse or adult next of kin or such person cannot be located, funds due the resident shall be placed in an interest-bearing account, and all property held in trust by the facility shall be safeguarded until such time as the funds and property are disbursed pursuant to the Florida Probate Code. Such funds shall be kept separate from the funds and property of the facility and other residents of the facility. If the funds of the deceased resident are not disbursed pursuant to the Florida Probate Code within 2 years after the resident’s death, the funds shall be deposited in the Health Care Trust Fund administered by the agency.
(8) The department may by rule clarify terms and specify procedures and documentation necessary to administer the provisions of this section relating to the proper management of residents’ funds and personal property and the execution of surety bonds.
History.—s. 12, ch. 75-233; ss. 12, 24, ch. 80-198; s. 2, ch. 81-152; s. 2, ch. 81-318; ss. 4, 19, ch. 82-148; ss. 54, 79, 83, ch. 83-181; s. 3, ch. 86-104; s. 12, ch. 87-371; s. 72, ch. 91-224; s. 18, ch. 91-263; ss. 22, 38, 39, ch. 93-216; s. 777, ch. 95-148; s. 3, ch. 98-148; s. 216, ch. 99-13; ss. 2, 50, ch. 2006-197.
Note.—Former s. 400.427.
429.275 Business practice; personnel records; liability insurance.—The assisted living facility shall be administered on a sound financial basis that is consistent with good business practices.
(1) The administrator or owner of a facility shall maintain accurate business records that identify, summarize, and classify funds received and expenses disbursed and shall use written accounting procedures and a recognized accounting system.
(2) The administrator or owner of a facility shall maintain personnel records for each staff member which contain, at a minimum, documentation of background screening, if applicable, documentation of compliance with all training requirements of this part or applicable rule, and a copy of all licenses or certification held by each staff who performs services for which licensure or certification is required under this part or rule.
(3) The administrator or owner of a facility shall maintain liability insurance coverage that is in force at all times.
(4) The department may by rule clarify terms, establish requirements for financial records, accounting procedures, personnel procedures, insurance coverage, and reporting procedures, and specify documentation as necessary to implement the requirements of this section.
History.—s. 4, ch. 98-148; s. 2, ch. 2006-197.
Note.—Former s. 400.4275.
429.28 Resident bill of rights.—
(1) No resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. Every resident of a facility shall have the right to:
(a) Live in a safe and decent living environment, free from abuse and neglect.
(b) Be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy.
(c) Retain and use his or her own clothes and other personal property in his or her immediate living quarters, so as to maintain individuality and personal dignity, except when the facility can demonstrate that such would be unsafe, impractical, or an infringement upon the rights of other residents.
(d) Unrestricted private communication, including receiving and sending unopened correspondence, access to a telephone, and visiting with any person of his or her choice, at any time between the hours of 9 a.m. and 9 p.m. at a minimum. Upon request, the facility shall make provisions to extend visiting hours for caregivers and out-of-town guests, and in other similar situations.
(e) Freedom to participate in and benefit from community services and activities and to achieve the highest possible level of independence, autonomy, and interaction within the community.
(f) Manage his or her financial affairs unless the resident or, if applicable, the resident’s representative, designee, surrogate, guardian, or attorney in fact authorizes the administrator of the facility to provide safekeeping for funds as provided in s. 429.27.
(g) Share a room with his or her spouse if both are residents of the facility.
(h) Reasonable opportunity for regular exercise several times a week and to be outdoors at regular and frequent intervals except when prevented by inclement weather.
(i) Exercise civil and religious liberties, including the right to independent personal decisions. No religious beliefs or practices, nor any attendance at religious services, shall be imposed upon any resident.
(j) Access to adequate and appropriate health care consistent with established and recognized standards within the community.
(k) At least 45 days’ notice of relocation or termination of residency from the facility unless, for medical reasons, the resident is certified by a physician to require an emergency relocation to a facility providing a more skilled level of care or the resident engages in a pattern of conduct that is harmful or offensive to other residents. In the case of a resident who has been adjudicated mentally incapacitated, the guardian shall be given at least 45 days’ notice of a nonemergency relocation or residency termination. Reasons for relocation shall be set forth in writing. In order for a facility to terminate the residency of an individual without notice as provided herein, the facility shall show good cause in a court of competent jurisdiction.
(l) Present grievances and recommend changes in policies, procedures, and services to the staff of the facility, governing officials, or any other person without restraint, interference, coercion, discrimination, or reprisal. Each facility shall establish a grievance procedure to facilitate the residents’ exercise of this right. This right includes access to ombudsman volunteers and advocates and the right to be a member of, to be active in, and to associate with advocacy or special interest groups.
(2) The administrator of a facility shall ensure that a written notice of the rights, obligations, and prohibitions set forth in this part is posted in a prominent place in each facility and read or explained to residents who cannot read. This notice shall include the name, address, and telephone numbers of the local ombudsman council and central abuse hotline and, when applicable, the Advocacy Center for Persons with Disabilities, Inc., and the Florida local advocacy council, where complaints may be lodged. The facility must ensure a resident’s access to a telephone to call the local ombudsman council, central abuse hotline, Advocacy Center for Persons with Disabilities, Inc., and the Florida local advocacy council.
(3)(a) The agency shall conduct a survey to determine general compliance with facility standards and compliance with residents’ rights as a prerequisite to initial licensure or licensure renewal.
(b) In order to determine whether the facility is adequately protecting residents’ rights, the biennial survey shall include private informal conversations with a sample of residents and consultation with the ombudsman council in the planning and service area in which the facility is located to discuss residents’ experiences within the facility.
(c) During any calendar year in which no survey is conducted, the agency shall conduct at least one monitoring visit of each facility cited in the previous year for a class I or class II violation, or more than three uncorrected class III violations.
(d) The agency may conduct periodic followup inspections as necessary to monitor the compliance of facilities with a history of any class I, class II, or class III violations that threaten the health, safety, or security of residents.
(e) The agency may conduct complaint investigations as warranted to investigate any allegations of noncompliance with requirements required under this part or rules adopted under this part.
(4) The facility shall not hamper or prevent residents from exercising their rights as specified in this section.
(5) No facility or employee of a facility may serve notice upon a resident to leave the premises or take any other retaliatory action against any person who:
(a) Exercises any right set forth in this section.
(b) Appears as a witness in any hearing, inside or outside the facility.
(c) Files a civil action alleging a violation of the provisions of this part or notifies a state attorney or the Attorney General of a possible violation of such provisions.
(6) Any facility which terminates the residency of an individual who participated in activities specified in subsection (5) shall show good cause in a court of competent jurisdiction.
(7) Any person who submits or reports a complaint concerning a suspected violation of the provisions of this part or concerning services and conditions in facilities, or who testifies in any administrative or judicial proceeding arising from such a complaint, shall have immunity from any civil or criminal liability therefor, unless such person has acted in bad faith or with malicious purpose or the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.
History.—ss. 12, 31, ch. 80-198; s. 2, ch. 81-318; ss. 55, 75, 79, 83, ch. 83-181; s. 53, ch. 83-218; s. 65, ch. 91-221; s. 19, ch. 91-263; ss. 23, 38, 39, ch. 93-216; s. 778, ch. 95-148; s. 11, ch. 95-418; s. 17, ch. 98-80; s. 20, ch. 2000-263; ss. 76, 143, ch. 2000-349; s. 63, ch. 2000-367; s. 38, ch. 2001-45; ss. 2, 51, ch. 2006-197.
Note.—Former s. 400.428.
429.29 Civil actions to enforce rights.—
(1) Any person or 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, or 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 damages, and punitive damages for violation of the rights of a resident or 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 429.29-429.298 provide the exclusive remedy for a cause of action for recovery of damages for the personal injury or death of a resident arising out of negligence or a violation of rights specified in s. 429.28. This section does not preclude theories of recovery not arising out of negligence or s. 429.28 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. 429.29-429.298.
(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. 429.28 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) Discovery of financial information for the purpose of determining the value of punitive damages may not be had unless the plaintiff shows the court by proffer or evidence in the record that a reasonable basis exists to support a claim for punitive damages.
(6) In addition to any other standards for punitive damages, any award of punitive damages must be reasonable in light of the actual harm suffered by the resident and the egregiousness of the conduct that caused the actual harm to the resident.
(7) 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.
History.—ss. 12, 32, ch. 80-198; s. 2, ch. 81-318; ss. 56, 75, 79, 83, ch. 83-181; s. 53, ch. 83-218; ss. 24, 38, 39, ch. 93-216; s. 779, ch. 95-148; s. 31, ch. 99-225; s. 39, ch. 2001-45; ss. 2, 52, ch. 2006-197.
Note.—Former s. 400.429.
429.293 Presuit notice; investigation; notification of violation of residents’ rights or alleged negligence; claims evaluation procedure; informal discovery; review; settlement offer; mediation.—
(1) As used in this section, the term:
(a) “Claim for residents’ 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. 429.28 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. 429.28 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 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. 40, ch. 2001-45; ss. 2, 53, ch. 2006-197.
Note.—Former s. 400.4293.
429.294 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 within 10 days, in accordance with the provisions of 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. 41, ch. 2001-45; s. 2, ch. 2006-197.
Note.—Former s. 400.4294.
429.295 Certain provisions not applicable to actions under this part.—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.—s. 42, ch. 2001-45; s. 2, ch. 2006-197.
Note.—Former s. 400.4295.
429.296 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 not 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. 43, ch. 2001-45; s. 2, ch. 2006-197.
Note.—Former s. 400.4296.
429.297 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. 44, ch. 2001-45; s. 2, ch. 2006-197.
Note.—Former s. 400.4297.
429.298 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. 45, ch. 2001-45; s. 419, ch. 2003-261; s. 2, ch. 2006-197.
Note.—Former s. 400.4298.
429.31 Closing of facility; notice; penalty.—
(1) In addition to the requirements of part II of chapter 408, the facility shall inform each resident or the next of kin, legal representative, or agency acting on each resident’s behalf, of the fact and the proposed time of discontinuance of operation, following the notification requirements provided in s. 429.28(1)(k). In the event a resident has no person to represent him or her, the facility shall be responsible for referral to an appropriate social service agency for placement.
(2) Immediately upon the notice by the agency of the voluntary or involuntary termination of such operation, the agency shall monitor the transfer of residents to other facilities and ensure that residents’ rights are being protected. The department, in consultation with the Department of Children and Family Services, shall specify procedures for ensuring that all residents who receive services are appropriately relocated.
(3) All charges shall be prorated as of the date on which the facility discontinues operation, and if any payments have been made in advance, the payments for services not received shall be refunded to the resident or the resident’s guardian within 10 working days of voluntary or involuntary closure of the facility, whether or not such refund is requested by the resident or guardian.
(4) The agency may levy a fine in an amount no greater than $5,000 upon each person or business entity that owns any interest in a facility that terminates operation without providing notice to the agency and the residents of the facility at least 30 days before operation ceases. This fine shall not be levied against any facility involuntarily closed at the initiation of the agency. The agency shall use the proceeds of the fines to operate the facility until all residents of the facility are relocated.
History.—s. 13, ch. 75-233; ss. 12, 25, ch. 80-198; s. 2, ch. 81-318; ss. 57, 79, 83, ch. 83-181; s. 20, ch. 91-263; ss. 25, 38, 39, ch. 93-216; s. 780, ch. 95-148; s. 50, ch. 95-418; s. 123, ch. 99-8; ss. 2, 54, ch. 2006-197; s. 154, ch. 2007-230.
Note.—Former s. 400.431.
429.34 Right of entry and inspection.—In addition to the requirements of s. 408.811, any duly designated officer or employee of the department, the Department of Children and Family Services, the Medicaid Fraud Control Unit of the Office of the Attorney General, the state or local fire marshal, or a member of the state or local long-term care ombudsman council shall have the right to enter unannounced upon and into the premises of any facility licensed pursuant to this part in order to determine the state of compliance with the provisions of this part, part II of chapter 408, and applicable rules. Data collected by the state or local long-term care ombudsman councils or the state or local advocacy councils may be used by the agency in investigations involving violations of regulatory standards.
History.—s. 14, ch. 75-233; s. 1, ch. 77-174; ss. 12, 26, ch. 80-198; s. 2, ch. 81-318; ss. 10, 18, 19, ch. 82-148; ss. 58, 79, 83, ch. 83-181; s. 1, ch. 88-350; s. 24, ch. 93-177; ss. 26, 38, 39, ch. 93-216; s. 51, ch. 95-418; s. 124, ch. 99-8; s. 144, ch. 2000-349; s. 64, ch. 2000-367; s. 46, ch. 2001-45; s. 3, ch. 2004-344; s. 2, ch. 2006-197; s. 155, ch. 2007-230.
Note.—Former s. 400.434.
429.35 Maintenance of records; reports.—
(1) Every facility shall maintain, as public information available for public inspection under such conditions as the agency shall prescribe, records containing copies of all inspection reports pertaining to the facility that have been issued by the agency to the facility. Copies of inspection reports shall be retained in the records for 5 years from the date the reports are filed or issued.
(2) Within 60 days after the date of the biennial inspection visit required under s. 408.811 or within 30 days after the date of any interim visit, the agency shall forward the results of the inspection to the local ombudsman council in whose planning and service area, as defined in part II of chapter 400, the facility is located; to at least one public library or, in the absence of a public library, the county seat in the county in which the inspected assisted living facility is located; and, when appropriate, to the district Adult Services and Mental Health Program Offices.
(3) Every facility shall post a copy of the last inspection report of the agency for that facility in a prominent location within the facility so as to be accessible to all residents and to the public. Upon request, the facility shall also provide a copy of the report to any resident of the facility or to an applicant for admission to the facility.
History.—ss. 12, 27, ch. 80-198; s. 2, ch. 81-318; ss. 75, 79, 83, ch. 83-181; s. 53, ch. 83-218; s. 1, ch. 88-145; s. 19, ch. 90-347; s. 21, ch. 91-263; ss. 27, 38, 39, ch. 93-216; s. 16, ch. 95-210; s. 57, ch. 2000-139; s. 145, ch. 2000-349; s. 65, ch. 2000-367; s. 2, ch. 2006-197; s. 102, ch. 2007-5; s. 156, ch. 2007-230; s. 118, ch. 2008-4.
Note.—Former s. 400.435.
429.41 Rules establishing standards.—
(1) It is the intent of the Legislature that rules published and enforced pursuant to this section shall include criteria by which a reasonable and consistent quality of resident care and quality of life may be ensured and the results of such resident care may be demonstrated. Such rules shall also ensure a safe and sanitary environment that is residential and noninstitutional in design or nature. 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 facility. The agency, in consultation with the department, may adopt rules to administer the requirements of part II of chapter 408. In order to provide safe and sanitary facilities and the highest quality of resident care accommodating the needs and preferences of residents, the department, in consultation with the agency, the Department of Children and Family Services, and the Department of Health, shall adopt rules, policies, and procedures to administer this part, which must include reasonable and fair minimum standards in relation to:
(a) The requirements for and maintenance of facilities, not in conflict with chapter 553, relating to plumbing, heating, cooling, lighting, ventilation, living space, and other housing conditions, which will ensure the health, safety, and comfort of residents and protection from fire hazard, including adequate provisions for fire alarm and other fire protection suitable to the size of the structure. Uniform firesafety standards shall be established and enforced by the State Fire Marshal in cooperation with the agency, the department, and the Department of Health.
1. Evacuation capability determination.—
a. The National Fire Protection Association, NFPA 101A, Chapter 5, 1995 edition, shall be used for determining the ability of the residents, with or without staff assistance, to relocate from or within a licensed facility to a point of safety as provided in the fire codes adopted herein. An evacuation capability evaluation for initial licensure shall be conducted within 6 months after the date of licensure. For existing licensed facilities that are not equipped with an automatic fire sprinkler system, the administrator shall evaluate the evacuation capability of residents at least annually. The evacuation capability evaluation for each facility not equipped with an automatic fire sprinkler system shall be validated, without liability, by the State Fire Marshal, by the local fire marshal, or by the local authority having jurisdiction over firesafety, before the license renewal date. If the State Fire Marshal, local fire marshal, or local authority having jurisdiction over firesafety has reason to believe that the evacuation capability of a facility as reported by the administrator may have changed, it may, with assistance from the facility administrator, reevaluate the evacuation capability through timed exiting drills. Translation of timed fire exiting drills to evacuation capability may be determined:
(I) Three minutes or less: prompt.
(II) More than 3 minutes, but not more than 13 minutes: slow.
(III) More than 13 minutes: impractical.
b. The Office of the State Fire Marshal shall provide or cause the provision of training and education on the proper application of Chapter 5, NFPA 101A, 1995 edition, to its employees, to staff of the Agency for Health Care Administration who are responsible for regulating facilities under this part, and to local governmental inspectors. The Office of the State Fire Marshal shall provide or cause the provision of this training within its existing budget, but may charge a fee for this training to offset its costs. The initial training must be delivered within 6 months after July 1, 1995, and as needed thereafter.
c. The Office of the State Fire Marshal, in cooperation with provider associations, shall provide or cause the provision of a training program designed to inform facility operators on how to properly review bid documents relating to the installation of automatic fire sprinklers. The Office of the State Fire Marshal shall provide or cause the provision of this training within its existing budget, but may charge a fee for this training to offset its costs. The initial training must be delivered within 6 months after July 1, 1995, and as needed thereafter.
d. The administrator of a licensed facility shall sign an affidavit verifying the number of residents occupying the facility at the time of the evacuation capability evaluation.
2. Firesafety requirements.—
a. Except for the special applications provided herein, effective January 1, 1996, the National Fire Protection Association, Life Safety Code, NFPA 101, 1994 edition, Chapter 22 for new facilities and Chapter 23 for existing facilities shall be the uniform fire code applied by the State Fire Marshal for assisted living facilities, pursuant to s. 633.206.
b. Any new facility, regardless of size, that applies for a license on or after January 1, 1996, must be equipped with an automatic fire sprinkler system. The exceptions as provided in s. 22-2.3.5.1, NFPA 101, 1994 edition, as adopted herein, apply to any new facility housing eight or fewer residents. On July 1, 1995, local governmental entities responsible for the issuance of permits for construction shall inform, without liability, any facility whose permit for construction is obtained before January 1, 1996, of this automatic fire sprinkler requirement. As used in this part, the term “a new facility” does not mean an existing facility that has undergone change of ownership.
c. Notwithstanding any provision of s. 633.206 or of the National Fire Protection Association, NFPA 101A, Chapter 5, 1995 edition, to the contrary, any existing facility housing eight or fewer residents is not required to install an automatic fire sprinkler system, nor to comply with any other requirement in Chapter 23, NFPA 101, 1994 edition, that exceeds the firesafety requirements of NFPA 101, 1988 edition, that applies to this size facility, unless the facility has been classified as impractical to evacuate. Any existing facility housing eight or fewer residents that is classified as impractical to evacuate must install an automatic fire sprinkler system within the timeframes granted in this section.
d. Any existing facility that is required to install an automatic fire sprinkler system under this paragraph need not meet other firesafety requirements of Chapter 23, NFPA 101, 1994 edition, which exceed the provisions of NFPA 101, 1988 edition. The mandate contained in this paragraph which requires certain facilities to install an automatic fire sprinkler system supersedes any other requirement.
e. This paragraph does not supersede the exceptions granted in NFPA 101, 1988 edition or 1994 edition.
f. This paragraph does not exempt facilities from other firesafety provisions adopted under s. 633.206 and local building code requirements in effect before July 1, 1995.
g. A local government may charge fees only in an amount not to exceed the actual expenses incurred by local government relating to the installation and maintenance of an automatic fire sprinkler system in an existing and properly licensed assisted living facility structure as of January 1, 1996.
h. If a licensed facility undergoes major reconstruction or addition to an existing building on or after January 1, 1996, the entire building must be equipped with an automatic fire sprinkler system. Major reconstruction of a building means repair or restoration that costs in excess of 50 percent of the value of the building as reported on the tax rolls, excluding land, before reconstruction. Multiple reconstruction projects within a 5-year period the total costs of which exceed 50 percent of the initial value of the building when the first reconstruction project was permitted are to be considered as major reconstruction. Application for a permit for an automatic fire sprinkler system is required upon application for a permit for a reconstruction project that creates costs that go over the 50-percent threshold.
i. Any facility licensed before January 1, 1996, that is required to install an automatic fire sprinkler system shall ensure that the installation is completed within the following timeframes based upon evacuation capability of the facility as determined under subparagraph 1.:
(I) Impractical evacuation capability, 24 months.
(II) Slow evacuation capability, 48 months.
(III) Prompt evacuation capability, 60 months.
The beginning date from which the deadline for the automatic fire sprinkler installation requirement must be calculated is upon receipt of written notice from the local fire official that an automatic fire sprinkler system must be installed. The local fire official shall send a copy of the document indicating the requirement of a fire sprinkler system to the Agency for Health Care Administration.
j. It is recognized that the installation of an automatic fire sprinkler system may create financial hardship for some facilities. The appropriate local fire official shall, without liability, grant two 1-year extensions to the timeframes for installation established herein, if an automatic fire sprinkler installation cost estimate and proof of denial from two financial institutions for a construction loan to install the automatic fire sprinkler system are submitted. However, for any facility with a class I or class II, or a history of uncorrected class III, firesafety deficiencies, an extension must not be granted. The local fire official shall send a copy of the document granting the time extension to the Agency for Health Care Administration.
k. A facility owner whose facility is required to be equipped with an automatic fire sprinkler system under Chapter 23, NFPA 101, 1994 edition, as adopted herein, must disclose to any potential buyer of the facility that an installation of an automatic fire sprinkler requirement exists. The sale of the facility does not alter the timeframe for the installation of the automatic fire sprinkler system.
l. Existing facilities required to install an automatic fire sprinkler system as a result of construction-type restrictions in Chapter 23, NFPA 101, 1994 edition, as adopted herein, or evacuation capability requirements shall be notified by the local fire official in writing of the automatic fire sprinkler requirement, as well as the appropriate date for final compliance as provided in this subparagraph. The local fire official shall send a copy of the document to the Agency for Health Care Administration.
m. Except in cases of life-threatening fire hazards, if an existing facility experiences a change in the evacuation capability, or if the local authority having jurisdiction identifies a construction-type restriction, such that an automatic fire sprinkler system is required, it shall be given time for installation as provided in this subparagraph.
Facilities that are fully sprinkled and in compliance with other firesafety standards are not required to conduct more than one of the required fire drills between the hours of 11 p.m. and 7 a.m., per year. In lieu of the remaining drills, staff responsible for residents during such hours may be required to participate in a mock drill that includes a review of evacuation procedures. Such standards must be included or referenced in the rules adopted by the State Fire Marshal. Pursuant to s. 633.206(1)(b), the State Fire Marshal is the final administrative authority for firesafety standards established and enforced pursuant to this section. All licensed facilities must have an annual fire inspection conducted by the local fire marshal or authority having jurisdiction.
3. Resident elopement requirements.—Facilities are required to conduct a minimum of two resident elopement prevention and response drills per year. All administrators and direct care staff must participate in the drills which shall include a review of procedures to address resident elopement. Facilities must document the implementation of the drills and ensure that the drills are conducted in a manner consistent with the facility’s resident elopement policies and procedures.
(b) The preparation and annual update of a comprehensive emergency management plan. Such standards must be included in the rules adopted by the department 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 provision of emergency power, food, and water; postdisaster transportation; supplies; staffing; emergency equipment; individual identification of residents and transfer of records; communication with families; and responses 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.
(c) The number, training, and qualifications of all personnel having responsibility for the care of residents. The rules must require adequate staff to provide for the safety of all residents. Facilities licensed for 17 or more residents are required to maintain an alert staff for 24 hours per day.
(d) All sanitary conditions within the facility and its surroundings which will ensure the health and comfort of residents. The rules must clearly delineate the responsibilities of the agency’s licensure and survey staff, the county health departments, and the local authority having jurisdiction over firesafety and ensure that inspections are not duplicative. The agency may collect fees for food service inspections conducted by the county health departments and transfer such fees to the Department of Health.
(e) License application and license renewal, transfer of ownership, proper management of resident funds and personal property, surety bonds, resident contracts, refund policies, financial ability to operate, and facility and staff records.
(f) Inspections, complaint investigations, moratoriums, classification of deficiencies, levying and enforcement of penalties, and use of income from fees and fines.
(g) The enforcement of the resident bill of rights specified in s. 429.28.
(h) The care and maintenance of residents, which must include, but is not limited to:
1. The supervision of residents;
2. The provision of personal services;
3. The provision of, or arrangement for, social and leisure activities;
4. The arrangement for appointments and transportation to appropriate medical, dental, nursing, or mental health services, as needed by residents;
5. The management of medication;
6. The nutritional needs of residents;
7. Resident records; and
8. Internal risk management and quality assurance.
(i) Facilities holding a limited nursing, extended congregate care, or limited mental health license.
(j) The establishment of specific criteria to define appropriateness of resident admission and continued residency in a facility holding a standard, limited nursing, extended congregate care, and limited mental health license.
(k) The use of physical or chemical restraints. The use of physical restraints is limited to half-bed rails as prescribed and documented by the resident’s physician with the consent of the resident or, if applicable, the resident’s representative or designee or the resident’s surrogate, guardian, or attorney in fact. The use of chemical restraints is limited to prescribed dosages of medications authorized by the resident’s physician and must be consistent with the resident’s diagnosis. Residents who are receiving medications that can serve as chemical restraints must be evaluated by their physician at least annually to assess:
1. The continued need for the medication.
2. The level of the medication in the resident’s blood.
3. The need for adjustments in the prescription.
(l) The establishment of specific policies and procedures on resident elopement. Facilities shall conduct a minimum of two resident elopement drills each year. All administrators and direct care staff shall participate in the drills. Facilities shall document the drills.
(2) In adopting any rules pursuant to this part, the department, in conjunction with the agency, shall make distinct standards for facilities based upon facility size; the types of care provided; the physical and mental capabilities and needs of residents; the type, frequency, and amount of services and care offered; and the staffing characteristics of the facility. Rules developed pursuant to this section shall not restrict the use of shared staffing and shared programming in facilities that are part of retirement communities that provide multiple levels of care and otherwise meet the requirements of law and rule. Except for uniform firesafety standards, the department shall adopt by rule separate and distinct standards for facilities with 16 or fewer beds and for facilities with 17 or more beds. The standards for facilities with 16 or fewer beds shall be appropriate for a noninstitutional residential environment, provided that the structure is no more than two stories in height and all persons who cannot exit the facility unassisted in an emergency reside on the first floor. The department, in conjunction with the agency, may make other distinctions among types of facilities as necessary to enforce the provisions of this part. Where appropriate, the agency shall offer alternate solutions for complying with established standards, based on distinctions made by the department and the agency relative to the physical characteristics of facilities and the types of care offered therein.
(3) The department shall submit a copy of proposed rules to the Speaker of the House of Representatives, the President of the Senate, and appropriate committees of substance for review and comment prior to the promulgation thereof. Rules promulgated by the department shall encourage the development of homelike facilities which promote the dignity, individuality, personal strengths, and decisionmaking ability of residents.
(4) The agency, in consultation with the department, may waive rules promulgated pursuant to this part in order to demonstrate and evaluate innovative or cost-effective congregate care alternatives which enable individuals to age in place. Such waivers may be granted only in instances where there is reasonable assurance that the health, safety, or welfare of residents will not be endangered. To apply for a waiver, the licensee shall submit to the agency a written description of the concept to be demonstrated, including goals, objectives, and anticipated benefits; the number and types of residents who will be affected, if applicable; a brief description of how the demonstration will be evaluated; and any other information deemed appropriate by the agency. Any facility granted a waiver shall submit a report of findings to the agency and the department within 12 months. At such time, the agency may renew or revoke the waiver or pursue any regulatory or statutory changes necessary to allow other facilities to adopt the same practices. The department may by rule clarify terms and establish waiver application procedures, criteria for reviewing waiver proposals, and procedures for reporting findings, as necessary to implement this subsection.
(5) The agency may use an abbreviated biennial standard licensure inspection that consists of a review of key quality-of-care standards in lieu of a full inspection in a facility that has a good record of past performance. However, a full inspection must be conducted in a facility that has a history of class I or class II violations, uncorrected class III violations, confirmed ombudsman council complaints, or confirmed licensure complaints, within the previous licensure period immediately preceding the inspection or if a potentially serious problem is identified during the abbreviated inspection. The agency, in consultation with the department, shall develop the key quality-of-care standards with input from the State Long-Term Care Ombudsman Council and representatives of provider groups for incorporation into its rules.
History.—s. 16, ch. 75-233; ss. 12, 29, ch. 80-198; s. 2, ch. 81-318; ss. 59, 79, 83, ch. 83-181; s. 7, ch. 85-145; s. 1, ch. 86-87; s. 13, ch. 87-371; s. 20, ch. 89-294; s. 22, ch. 91-263; s. 25, ch. 93-177; s. 26, ch. 93-211; ss. 28, 38, 39, ch. 93-216; ss. 12, 20, 52, ch. 95-418; s. 27, ch. 97-100; s. 99, ch. 97-101; s. 5, ch. 98-148; s. 15, ch. 99-332; s. 47, ch. 2001-45; s. 7, ch. 2004-298; s. 2, ch. 2004-386; ss. 2, 55, ch. 2006-197; s. 157, ch. 2007-230; s. 142, ch. 2010-102; s. 343, ch. 2011-142; s. 137, ch. 2013-183.
Note.—Former s. 400.441.
429.42 Pharmacy and dietary services.—
(1) Any assisted living facility in which the agency has documented a class I or class II deficiency or uncorrected class III deficiencies regarding medicinal drugs or over-the-counter preparations, including their storage, use, delivery, or administration, or dietary services, or both, during a biennial survey or a monitoring visit or an investigation in response to a complaint, shall, in addition to or as an alternative to any penalties imposed under s. 429.19, be required to employ the consultant services of a licensed pharmacist, a licensed registered nurse, or a registered or licensed dietitian, as applicable. The consultant shall, at a minimum, provide onsite quarterly consultation until the inspection team from the agency determines that such consultation services are no longer required.
(2) A corrective action plan for deficiencies related to assistance with the self-administration of medication or the administration of medication must be developed and implemented by the facility within 48 hours after notification of such deficiency, or sooner if the deficiency is determined by the agency to be life-threatening.
(3) The agency shall employ at least two pharmacists licensed pursuant to chapter 465 among its personnel who biennially inspect assisted living facilities licensed under this part, to participate in biennial inspections or consult with the agency regarding deficiencies relating to medicinal drugs or over-the-counter preparations.
(4) The department may by rule establish procedures and specify documentation as necessary to implement this section.
History.—s. 1, ch. 89-218; s. 1, ch. 90-192; s. 23, ch. 91-263; ss. 29, 38, 39, ch. 93-216; s. 17, ch. 95-210; s. 18, ch. 98-80; s. 6, ch. 98-148; ss. 2, 56, ch. 2006-197.
Note.—Former s. 400.442.
429.44 Construction and renovation; requirements.—
(1) The requirements for the construction and renovation of a facility shall comply with chapter 553 which pertains to building construction standards, including plumbing, electrical code, glass, manufactured buildings, accessibility for persons with disabilities, and the state minimum building code and with s. 633.206, which pertains to uniform firesafety standards.
(2) Upon notification by the local authority having jurisdiction over life-threatening violations which seriously threaten the health, safety, or welfare of a resident of a facility, the agency shall take action as specified in s. 429.14.
(3) The department may adopt rules to establish procedures and specify the documentation necessary to implement this section.
History.—s. 17, ch. 75-233; s. 3, ch. 79-152; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 30, 38, 39, ch. 93-216; s. 14, ch. 95-418; s. 7, ch. 98-148; ss. 2, 57, ch. 2006-197; s. 138, ch. 2013-183.
Note.—Former s. 400.444.
429.445 Compliance with local zoning requirements.—No facility licensed under this part may commence any construction which will expand the size of the existing structure unless the licensee first submits to the agency proof that such construction will be in compliance with applicable local zoning requirements. Facilities with a licensed capacity of less than 15 persons shall comply with the provisions of chapter 419.
History.—s. 2, ch. 85-251; s. 24, ch. 91-263; ss. 31, 39, ch. 93-216; s. 2, ch. 2006-197.
Note.—Former s. 400.4445.
429.47 Prohibited acts; penalties for violation.—
(1) While a facility is under construction, the owner may advertise to the public prior to obtaining a license. Facilities that are certified under chapter 651 shall comply with the advertising provisions of s. 651.095 rather than those provided for in this subsection.
(2) A freestanding facility shall not advertise or imply that any part of it is a nursing home. For the purpose of this subsection, “freestanding facility” means a facility that is not operated in conjunction with a nursing home to which residents of the facility are given priority when nursing care is required. A person who violates this subsection is subject to fine as specified in s. 429.19.
(3) Any facility which is affiliated with any religious organization or which has a name implying religious affiliation shall include in its advertising whether or not it is affiliated with any religious organization and, if so, which organization.
(4) A facility licensed under this part which is not part of a facility authorized under chapter 651 shall include the facility’s license number as given by the agency in all advertising. A company or person owning more than one facility shall include at least one license number per advertisement. All advertising shall include the term “assisted living facility” before the license number.
History.—s. 18, ch. 75-233; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; s. 14, ch. 87-371; s. 25, ch. 91-263; ss. 32, 38, 39, ch. 93-216; s. 18, ch. 95-210; s. 217, ch. 99-13; ss. 2, 58, ch. 2006-197; s. 158, ch. 2007-230.
Note.—Former s. 400.447.
429.49 Resident records; penalties for alteration.—
(1) Any person who fraudulently alters, defaces, or falsifies any medical or other record of an assisted living facility, or causes or procures any such offense 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. 48, ch. 2001-45; s. 2, ch. 2006-197.
Note.—Former s. 400.449.
429.52 Staff training and educational programs; core educational requirement.—
(1) Administrators and other assisted living facility staff must meet minimum training and education requirements established by the Department of Elderly Affairs by rule. This training and education is intended to assist facilities to appropriately respond to the needs of residents, to maintain resident care and facility standards, and to meet licensure requirements.
(2) The department shall establish a competency test and a minimum required score to indicate successful completion of the training and educational requirements. The competency test must be developed by the department in conjunction with the agency and providers. The required training and education must cover at least the following topics:
(a) State law and rules relating to assisted living facilities.
(b) Resident rights and identifying and reporting abuse, neglect, and exploitation.
(c) Special needs of elderly persons, persons with mental illness, and persons with developmental disabilities and how to meet those needs.
(d) Nutrition and food service, including acceptable sanitation practices for preparing, storing, and serving food.
(e) Medication management, recordkeeping, and proper techniques for assisting residents with self-administered medication.
(f) Firesafety requirements, including fire evacuation drill procedures and other emergency procedures.
(g) Care of persons with Alzheimer’s disease and related disorders.
(3) Effective January 1, 2004, a new facility administrator must complete the required training and education, including the competency test, within a reasonable time after being employed as an administrator, as determined by the department. Failure to do so is a violation of this part and subjects the violator to an administrative fine as prescribed in s. 429.19. Administrators licensed in accordance with part II of chapter 468 are exempt from this requirement. Other licensed professionals may be exempted, as determined by the department by rule.
(4) Administrators are required to participate in continuing education for a minimum of 12 contact hours every 2 years.
(5) Staff involved with the management of medications and assisting with the self-administration of medications under s. 429.256 must complete a minimum of 4 additional hours of training provided by a registered nurse, licensed pharmacist, or department staff. The department shall establish by rule the minimum requirements of this additional training.
(6) Other facility staff shall participate in training relevant to their job duties as specified by rule of the department.
(7) If the department or the agency determines that there are problems in a facility that could be reduced through specific staff training or education beyond that already required under this section, the department or the agency may require, and provide, or cause to be provided, the training or education of any personal care staff in the facility.
(8) The department shall adopt rules related to these training requirements, the competency test, necessary procedures, and competency test fees and shall adopt or contract with another entity to develop a curriculum, which shall be used as the minimum core training requirements. The department shall consult with representatives of stakeholder associations and agencies in the development of the curriculum.
(9) The training required by this section shall be conducted by persons registered with the department as having the requisite experience and credentials to conduct the training. A person seeking to register as a trainer must provide the department with proof of completion of the minimum core training education requirements, successful passage of the competency test established under this section, and proof of compliance with the continuing education requirement in subsection (4).
(10) A person seeking to register as a trainer must also:
(a) Provide proof of completion of a 4-year degree from an accredited college or university and must have worked in a management position in an assisted living facility for 3 years after being core certified;
(b) Have worked in a management position in an assisted living facility for 5 years after being core certified and have 1 year of teaching experience as an educator or staff trainer for persons who work in assisted living facilities or other long-term care settings;
(c) Have been previously employed as a core trainer for the department; or
(d) Meet other qualification criteria as defined in rule, which the department is authorized to adopt.
(11) The department shall adopt rules to establish trainer registration requirements.
History.—ss. 12, 34, ch. 80-198; s. 2, ch. 81-318; ss. 60, 75, 79, 83, ch. 83-181; s. 53, ch. 83-218; s. 3, ch. 85-251; s. 21, ch. 89-294; s. 27, ch. 91-263; ss. 33, 38, 39, ch. 93-216; s. 19, ch. 95-210; ss. 15, 26, 53, ch. 95-418; s. 16, ch. 97-82; s. 29, ch. 97-100; s. 19, ch. 98-80; s. 25, ch. 2003-57; s. 3, ch. 2003-405; ss. 2, 59, ch. 2006-197; s. 1, ch. 2007-219.
Note.—Former s. 400.452.
429.53 Consultation by the agency.—
(1) The area offices of licensure and certification of the agency shall provide consultation to the following upon request:
(a) A licensee of a facility.
(b) A person interested in obtaining a license to operate a facility under this part.
(2) As used in this section, “consultation” includes:
(a) An explanation of the requirements of this part and rules adopted pursuant thereto;
(b) An explanation of the license application and renewal procedures;
(c) The provision of a checklist of general local and state approvals required prior to constructing or developing a facility and a listing of the types of agencies responsible for such approvals;
(d) An explanation of benefits and financial assistance available to a recipient of supplemental security income residing in a facility;
(e) Any other information which the agency deems necessary to promote compliance with the requirements of this part; and
(f) A preconstruction review of a facility to ensure compliance with agency rules and this part.
(3) The agency may charge a fee commensurate with the cost of providing consultation under this section.
History.—ss. 15, 19, ch. 87-371; s. 22, ch. 89-294; ss. 34, 38, 39, ch. 93-216; s. 2, ch. 2006-197.
Note.—Former s. 400.453.
429.54 Collection of information; local subsidy.—
(1) To enable the department to collect the information requested by the Legislature regarding the actual cost of providing room, board, and personal care in facilities, the department is authorized to conduct field visits and audits of facilities as may be necessary. The owners of randomly sampled facilities shall submit such reports, audits, and accountings of cost as the department may require by rule; provided that such reports, audits, and accountings shall be the minimum necessary to implement the provisions of this section. Any facility selected to participate in the study shall cooperate with the department by providing cost of operation information to interviewers.
(2) Local governments or organizations may contribute to the cost of care of local facility residents by further subsidizing the rate of state-authorized payment to such facilities. Implementation of local subsidy shall require departmental approval and shall not result in reductions in the state supplement.
History.—ss. 12, 35, ch. 80-198; s. 2, ch. 81-318; ss. 75, 79, 83, ch. 83-181; s. 53, ch. 83-218; ss. 38, 39, ch. 93-216; s. 2, ch. 2006-197.
Note.—Former s. 400.454.
PART II
ADULT FAMILY-CARE HOMES429.60 Short title.
429.63 Legislative intent; purpose.
429.65 Definitions.
429.67 Licensure.
429.69 Denial, revocation, and suspension of a license.
429.71 Classification of deficiencies; administrative fines.
429.73 Rules and standards relating to adult family-care homes.
429.75 Training and education programs.
429.81 Residency agreements.
429.83 Residents with Alzheimer’s disease or other related disorders; certain disclosures.
429.85 Residents’ bill of rights.
429.87 Civil actions to enforce rights.
429.60 Short title.—This part may be cited as the “Adult Family-Care Home Act.”
History.—ss. 1, 2, ch. 85-195; s. 4, ch. 91-429; s. 2, ch. 93-209; s. 1, ch. 98-338; s. 3, ch. 2006-197.
Note.—Former s. 400.616.
429.63 Legislative intent; purpose.—
(1) The Legislature encourages the provision of care for disabled adults and frail elders in family-type living arrangements in private homes.
(2) Adult family-care homes provide housing and personal care for disabled adults and frail elders who choose to live with an individual or family in a private home. The adult family-care home provider must live in the home. The purpose of this part is to provide for the health, safety, and welfare of residents of adult family-care homes in the state.
(3) The Legislature recognizes that adult family-care homes are an important part of the continuum of long-term care. The personal care available in these homes, which may be provided directly or through contract or agreement, is intended to help residents remain as independent as possible in order to delay or avoid placement in a nursing home or other institution. Regulations governing adult family-care homes must be sufficiently flexible to allow residents to age in place if resources are available to meet their needs and accommodate their preferences.
(4) The Legislature further finds and declares that licensure under this part is a public trust and a privilege, and not an entitlement. This principle must guide the finder of fact or trier of law at any administrative proceeding or circuit court action initiated by the department to enforce this part.
(5) Rules of the department relating to adult family-care homes shall be as minimal and flexible as possible to ensure the protection of residents while minimizing the obstacles that could inhibit the establishment of adult family-care homes.
History.—ss. 1, 2, ch. 85-195; s. 4, ch. 91-429; s. 3, ch. 93-209; s. 2, ch. 98-338; s. 3, ch. 2006-197.
Note.—Former s. 400.617.
429.65 Definitions.—As used in this part, the term:
(1) “Activities of daily living” means functions and tasks for self-care, including eating, bathing, grooming, dressing, ambulating, and other similar tasks.
(2) “Adult family-care home” means a full-time, family-type living arrangement, in a private home, under which a person who owns or rents the home provides room, board, and personal care, on a 24-hour basis, for no more than five disabled adults or frail elders who are not relatives. The following family-type living arrangements are not required to be licensed as an adult family-care home:
(a) An arrangement whereby the person who owns or rents the home provides room, board, and personal services for not more than two adults who do not receive optional state supplementation under s. 409.212. The person who provides the housing, meals, and personal 1care must own or rent the home and reside therein.
(b) An arrangement whereby the person who owns or rents the home provides room, board, and personal services only to his or her relatives.
(c) An establishment that is licensed as an assisted living facility under this chapter.
(3) “Agency” means the Agency for Health Care Administration.
(4) “Aging in place” means remaining in a noninstitutional living environment despite the physical or mental changes that may occur in a person who is aging. For aging in place to occur, needed services are added, increased, or adjusted to compensate for a person’s physical or mental changes.
(5) “Appropriate placement” means that the resident’s needs can be met by the adult family-care home or can be met by services arranged by the adult family-care home or the resident.
(6) “Chemical restraint” means a pharmacologic drug that physically limits, restricts, or deprives an individual of movement or mobility, and is used for discipline or convenience and not required for the treatment of medical symptoms.
(7) “Department” means the Department of Elderly Affairs.
(8) “Disabled adult” means any person between 18 and 59 years of age, inclusive, who is a resident of the state and who has one or more permanent physical or mental limitations that restrict the person’s ability to perform the normal activities of daily living.
(9) “Frail elder” means a functionally impaired elderly person who is 60 years of age or older and who has physical or mental limitations that restrict the person’s ability to perform the normal activities of daily living and that impede the person’s capacity to live independently.
(10) “Personal services” or “personal care” includes individual assistance with or supervision of the activities of daily living and the self-administration of medication, and other similar services.
(11) “Provider” means a person who is licensed to operate an adult family-care home.
(12) “Relative” means an individual who is the father, mother, son, daughter, brother, sister, grandfather, grandmother, great-grandfather, great-grandmother, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister of a provider.
(13) “Relief person” means an adult designated by the provider to supervise the residents during the provider’s absence.
(14) “Resident” means a person receiving room, board, and personal care in an adult family-care home.
History.—ss. 1, 2, ch. 85-195; s. 4, ch. 91-429; s. 4, ch. 93-209; s. 22, ch. 95-210; s. 61, ch. 95-418; s. 21, ch. 98-80; s. 3, ch. 98-338; s. 220, ch. 99-13; ss. 3, 66, ch. 2006-197.
1Note.—As amended by s. 3, ch. 98-338. Section 21, ch. 98-80, substituted the word “services” for the word “care.”
Note.—Former s. 400.618.
429.67 Licensure.—
(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 adult family-care home in this state.
(2) A person who intends to be an adult family-care home provider must own or rent the adult family-care home that is to be licensed and reside therein.
(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 $200 per biennium.
(4) The agency shall require level 2 background screening for personnel as required in s. 408.809(1)(e), including the adult family-care home provider, the designated relief person, and all adult household members, pursuant to chapter 435 and s. 408.809.
(5) Unless the adult family-care home is a community residential home subject to chapter 419, the applicant must provide documentation, signed by the appropriate governmental official, that the home has met local zoning requirements for the location for which the license is sought.
(6) In addition to the requirements of s. 408.811, access to a licensed adult family-care home must be provided at reasonable times for the appropriate officials of the department, the Department of Health, the Department of Children and Family Services, the agency, and the State Fire Marshal, who are responsible for the development and maintenance of fire, health, sanitary, and safety standards, to inspect the facility to assure compliance with these standards. In addition, access to a licensed adult family-care home must be provided at reasonable times for the local long-term care ombudsman council.
(7) The licensed maximum capacity of each adult family-care home is based on the service needs of the residents and the capability of the provider to meet the needs of the residents. Any relative who lives in the adult family-care home and who is a disabled adult or frail elder must be included in that limitation.
(8) Each adult family-care home must designate at least one licensed space for a resident receiving optional state supplementation. The Department of Children and Family Services shall specify by rule the procedures to be followed for referring residents who receive optional state supplementation to adult family-care homes. Those homes licensed as adult foster homes or assisted living facilities prior to January 1, 1994, that convert to adult family-care homes, are exempt from this requirement.
(9) In addition to the license categories available in s. 408.808, the agency may issue a conditional license to a provider for the purpose of bringing the adult family-care home into compliance with licensure requirements. A conditional license must be limited to a specific period, not exceeding 6 months. The department shall, by rule, establish criteria for issuing conditional licenses.
(10) The department may adopt rules to establish procedures, identify forms, specify documentation, and clarify terms, as necessary, to administer this section.
(11) The agency may adopt rules to administer the requirements of part II of chapter 408.
History.—ss. 1, 2, ch. 85-195; s. 38, ch. 87-225; s. 4, ch. 91-429; s. 5, ch. 93-209; s. 23, ch. 95-210; ss. 62, 130, ch. 95-418; s. 8, ch. 98-148; ss. 57, 71, ch. 98-171; s. 4, ch. 98-338; s. 147, ch. 2000-349; s. 67, ch. 2000-367; s. 25, ch. 2001-53; s. 2, ch. 2001-67; s. 148, ch. 2001-277; s. 28, ch. 2003-57; s. 25, ch. 2004-267; s. 8, ch. 2004-298; s. 3, ch. 2006-197; s. 160, ch. 2007-230; s. 30, ch. 2010-114.
Note.—Former s. 400.619.
429.69 Denial, revocation, and suspension of a license.—In addition to the requirements of part II of chapter 408, the agency may deny, suspend, and revoke a license for any of the following reasons:
(1) Failure to comply with the background screening standards of this part, s. 408.809(1), or chapter 435.
(2) Failure to correct cited fire code violations that threaten the health, safety, or welfare of residents.
History.—ss. 58, 71, ch. 98-171; s. 5, ch. 98-338; s. 25, ch. 2001-53; s. 2, ch. 2001-67; s. 148, ch. 2001-277; s. 26, ch. 2004-267; s. 3, ch. 2006-197; s. 103, ch. 2007-5; s. 161, ch. 2007-230; s. 31, ch. 2010-114.
Note.—Former s. 400.6194.
429.71 Classification of deficiencies; administrative fines.—
(1) In addition to the requirements of part II of chapter 408 and in addition to any other liability or penalty provided by law, the agency may impose an administrative fine on a provider according to the following classification:
(a) Class I violations are those conditions or practices related to the operation and maintenance of an adult family-care home or to the care of residents 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 or emotional harm would result therefrom. The condition or practice that constitutes a class I violation must be abated or eliminated within 24 hours, unless a fixed period, as determined by the agency, is required for correction. A class I deficiency is subject to an administrative fine in an amount not less than $500 and not exceeding $1,000 for each violation. A fine may be levied notwithstanding the correction of the deficiency.
(b) Class II violations are those conditions or practices related to the operation and maintenance of an adult family-care home or to the care of residents which the agency determines directly threaten the physical or emotional health, safety, or security of the residents, other than class I violations. A class II violation is subject to an administrative fine in an amount not less than $250 and not exceeding $500 for each violation. A citation for a class II violation must specify the time within which the violation is required to be corrected. If a class II violation is corrected within the time specified, no civil penalty shall be imposed, unless it is a repeated offense.
(c) Class III violations are those conditions or practices related to the operation and maintenance of an adult family-care home or to the care of residents which the agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of residents, other than class I or class II violations. A class III violation is subject to an administrative fine in an amount not less than $100 and not exceeding $250 for each violation. A citation for a class III violation shall specify the time within which the violation is required to be corrected. If a class III violation is corrected within the time specified, no civil penalty shall be imposed, unless it is a repeated offense.
(d) Class IV violations are those conditions or occurrences related to the operation and maintenance of an adult family-care home, or related to the required reports, forms, or documents, which do not have the potential of negatively affecting the residents. A provider that does not correct a class IV violation within the time limit specified by the agency is subject to an administrative fine in an amount not less than $50 and not exceeding $100 for each violation. Any class IV violation that is corrected during the time the agency survey is conducted will be identified as an agency finding and not as a violation.
(2) The agency may impose an administrative fine for violations which do not qualify as class I, class II, class III, or class IV violations. The amount of the fine shall not exceed $250 for each violation or $2,000 in the aggregate. Unclassified violations may include:
(a) Violating any term or condition of a license.
(b) Violating any provision of this part, part II of chapter 408, or applicable rules.
(c) Failure to follow the criteria and procedures provided under part I of chapter 394 relating to the transportation, voluntary admission, and involuntary examination of adult family-care home residents.
(d) Exceeding licensed capacity.
(e) Providing services beyond the scope of the license.
(f) Violating a moratorium.
(3) Each day during which a violation occurs constitutes a separate offense.
(4) In determining whether a penalty is to be imposed, and in fixing the amount of any penalty to be imposed, the agency must consider:
(a) The gravity of the violation.
(b) Actions taken by the provider to correct a violation.
(c) Any previous violation by the provider.
(d) The financial benefit to the provider of committing or continuing the violation.
(5) As an alternative to or in conjunction with an administrative action against a provider, the agency may request a plan of corrective action that demonstrates a good faith effort to remedy each violation by a specific date, subject to the approval of the agency.
(6) The department shall set forth, by rule, notice requirements and procedures for correction of deficiencies.
History.—s. 6, ch. 93-209; s. 64, ch. 95-418; s. 41, ch. 96-169; s. 9, ch. 98-148; s. 6, ch. 98-338; s. 221, ch. 99-13; s. 3, ch. 2006-197; s. 162, ch. 2007-230.
Note.—Former s. 400.6196.
429.73 Rules and standards relating to adult family-care homes.—
(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 Department of Health, the Department of Children and Family Services, and the agency shall, by rule, establish minimum standards to ensure the health, safety, and well-being of each resident in the adult family-care home pursuant to this part. The rules must address:
(a) Requirements for the physical site of the facility and facility maintenance.
(b) Services that must be provided to all residents of an adult family-care home and standards for such services, which must include, but need not be limited to:
1. Room and board.
2. Assistance necessary to perform the activities of daily living.
3. Assistance necessary to administer medication.
4. Supervision of residents.
5. Health monitoring.
6. Social and leisure activities.
(c) Standards and procedures for license application and annual license renewal, advertising, proper management of each resident’s funds and personal property and personal affairs, financial ability to operate, medication management, inspections, complaint investigations, and facility, staff, and resident records.
(d) Qualifications, training, standards, and responsibilities for providers and staff.
(e) Compliance with chapter 419, relating to community residential homes.
(f) Criteria and procedures for determining the appropriateness of a resident’s placement and continued residency in an adult family-care home. A resident who requires 24-hour nursing supervision may not be retained in an adult family-care home unless such resident is an enrolled hospice patient and the resident’s continued residency is mutually agreeable to the resident and the provider.
(g) Procedures for providing notice and assuring the least possible disruption of residents’ lives when residents are relocated, an adult family-care home is closed, or the ownership of an adult family-care home is transferred.
(h) Procedures to protect the residents’ rights as provided in s. 429.85.
(i) Procedures to promote the growth of adult family-care homes as a component of a long-term care system.
(j) Procedures to promote the goal of aging in place for residents of adult family-care homes.
(2) The department shall by rule provide minimum standards and procedures for emergencies. Pursuant to s. 633.206, the State Fire Marshal, in consultation with the department and the agency, shall adopt uniform firesafety standards for adult family-care homes.
(3) The department shall adopt rules providing for the implementation of orders not to resuscitate. The provider may withhold or withdraw cardiopulmonary resuscitation if presented with an order not to resuscitate executed pursuant to s. 401.45. The provider 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.
History.—ss. 1, 2, ch. 85-195; s. 4, ch. 91-429; s. 7, ch. 93-209; s. 24, ch. 95-210; s. 65, ch. 95-418; s. 10, ch. 98-148; s. 7, ch. 98-338; s. 3, ch. 99-179; s. 7, ch. 99-331; s. 3, ch. 2006-197; s. 104, ch. 2007-5; s. 163, ch. 2007-230; s. 139, ch. 2013-183.
Note.—Former s. 400.621.
429.75 Training and education programs.—
(1) Each adult family-care home provider shall complete training and education programs.
(2) Training and education programs must include information relating to:
(a) State law and rules governing adult family-care homes, with emphasis on appropriateness of placement of residents in an adult family-care home.
(b) Identifying and reporting abuse, neglect, and exploitation.
(c) Identifying and meeting the special needs of disabled adults and frail elders.
(d) Monitoring the health of residents, including guidelines for prevention and care of pressure ulcers.
(3) Effective January 1, 2004, providers must complete the training and education program within a reasonable time determined by the department. Failure to complete the training and education program within the time set by the department is a violation of this part and subjects the provider to revocation of the license.
(4) If the Department of Children and Family Services, the agency, or the department determines that there are problems in an adult family-care home which could be reduced through specific training or education beyond that required under this section, the agency may require the provider or staff to complete such training or education.
(5) The department may adopt rules as necessary to administer this section.
History.—s. 8, ch. 93-209; s. 66, ch. 95-418; s. 11, ch. 98-148; s. 8, ch. 98-338; s. 4, ch. 2003-405; s. 3, ch. 2006-197.
Note.—Former s. 400.6211.
429.81 Residency agreements.—
(1) Each resident must be covered by a residency agreement, executed before or at the time of admission, between the provider and the resident or the resident’s designee or legal representative. Each party to the contract must be provided a duplicate copy or the original agreement, and the provider must keep the residency agreement on file for 5 years after expiration of the agreement.
(2) Each residency agreement must specify the personal care and accommodations to be provided by the adult family-care home, the rates or charges, a requirement of at least 30 days’ notice before a rate increase, and any other provisions required by rule of the department.
History.—s. 11, ch. 93-209; s. 10, ch. 98-338; s. 3, ch. 2006-197.
Note.—Former s. 400.625.
429.83 Residents with Alzheimer’s disease or other related disorders; certain disclosures.—An adult family-care home 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 home 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 home 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 home’s records as part of the license renewal procedure.
History.—s. 6, ch. 93-105; s. 31, ch. 97-100; s. 11, ch. 98-338; s. 3, ch. 2006-197.
Note.—Former s. 400.6255.
429.85 Residents’ bill of rights.—
(1) A resident of an adult family-care home may not be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the State Constitution, or the Constitution of the United States solely by reason of status as a resident of the home. Each resident has the right to:
(a) Live in a safe and decent living environment, free from abuse and neglect.
(b) Be treated with consideration and respect and with due recognition of personal dignity, individuality, and privacy.
(c) Keep and use the resident’s own clothes and other personal property in the resident’s immediate living quarters, so as to maintain individuality and personal dignity, except when the provider can demonstrate that to do so would be unsafe or an infringement upon the rights of other residents.
(d) Have unrestricted private communication, including receiving and sending unopened correspondence, having access to a telephone, and visiting with any person of his or her choice, at any time between the hours of 9 a.m. and 9 p.m. at a minimum.
(e) Be free to participate in and benefit from community services and activities and to achieve the highest possible level of independence, autonomy, and interaction within the community.
(f) Manage the resident’s own financial affairs unless the resident or the resident’s guardian authorizes the provider to provide safekeeping for funds in accordance with procedures equivalent to those provided in s. 429.27.
(g) Share a room with the resident’s spouse if both are residents of the home.
(h) Have reasonable opportunity for regular exercise several times a week and to be outdoors at regular and frequent intervals.
(i) Exercise civil and religious liberties, including the right to independent personal decisions. Religious beliefs or practices and attendance at religious services may not be imposed upon a resident.
(j) Have access to adequate and appropriate health care.
(k) Be free from chemical and physical restraints.
(l) Have at least 30 days’ notice of relocation or termination of residency from the home unless, for medical reasons, the resident is certified by a physician to require an emergency relocation to a facility providing a more skilled level of care or the resident engages in a pattern of conduct that is harmful or offensive to other residents. If a resident has been adjudicated mentally incompetent, the resident’s guardian must be given at least 30 days’ notice, except in an emergency, of the relocation of a resident or of the termination of a residency. The reasons for relocating a resident must be set forth in writing.
(m) Present grievances and recommend changes to the provider, to staff, or to any other person without restraint, interference, coercion, discrimination, or reprisal. This right includes the right to have access to ombudsman volunteers and advocates and the right to be a member of, to be active in, and to associate with advocacy or special interest groups.
(2) The provider shall ensure that residents and their legal representatives are made aware of the rights, obligations, and prohibitions set forth in this part. Residents must also be given the names, addresses, and telephone numbers of the local ombudsman council and the central abuse hotline where they may lodge complaints.
(3) The adult family-care home may not hamper or prevent residents from exercising the rights specified in this section.
(4) A provider or staff of an adult family-care home may not serve notice upon a resident to leave the premises or take any other retaliatory action against any person who:
(a) Exercises any right set forth in this section.
(b) Appears as a witness in any hearing, in or out of the adult family-care home.
(c) Files a civil action alleging a violation of this part or notifies a state attorney or the Attorney General of a possible violation of this part.
(5) Any adult family-care home that terminates the residency of an individual who has participated in activities specified in subsection (4) must show good cause for the termination in a court of competent jurisdiction.
(6) Any person who reports a complaint concerning a suspected violation of this part or the services and conditions in an adult family-care home, or who testifies in any administrative or judicial proceeding arising from such a complaint, is immune from any civil or criminal liability therefor, unless the person acted in bad faith or with malicious purpose or 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. 12, ch. 93-209; s. 790, ch. 95-148; s. 6, ch. 97-82; s. 12, ch. 98-338; ss. 84, 148, ch. 2000-349; s. 68, ch. 2000-367; ss. 3, 67, ch. 2006-197.
Note.—Former s. 400.628.
429.87 Civil actions to enforce rights.—
(1) Any person or resident whose rights as specified in this part are violated has a cause of action against any adult family-care home, provider, or staff responsible for the violation. The action may be brought by the resident or the resident’s guardian, or by a person or organization acting on behalf of a resident with the consent of the resident or the resident’s guardian, to enforce the right. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual damages, and punitive damages when malicious, wanton, or willful disregard of the rights of others can be shown. Any plaintiff who prevails in any such action is entitled to recover reasonable attorney’s fees, costs of the action, and damages, unless the court finds that the plaintiff has acted in bad faith or with malicious purpose or that there was a complete absence of a justiciable issue of either law or fact. A prevailing defendant is entitled to recover reasonable attorney’s fees pursuant to s. 57.105. The remedies provided in this section are in addition to other legal and administrative remedies available to a resident or to the agency.
(2) To recover attorney’s fees under this section, the following conditions precedent must be met:
(a) Within 120 days after the filing of a responsive pleading or defensive motion to a complaint brought under this section and before trial, the parties or their designated representatives shall meet in mediation to discuss the issues of liability and damages in accordance with this paragraph for the purpose of an early resolution of the matter.
1. Within 60 days after the filing of the responsive pleading or defensive motion, the parties shall:
a. Agree on a mediator. If the parties cannot agree on a mediator, the defendant shall immediately notify the court, which shall appoint a mediator within 10 days after such notice.
b. Set a date for mediation.
c. Prepare an order for the court that identifies the mediator, the scheduled date of the mediation, and other terms of the mediation. Absent any disagreement between the parties, the court may issue the order for the mediation submitted by the parties without a hearing.
2. The mediation must be concluded within 120 days after the filing of a responsive pleading or defensive motion. The date may be extended only by agreement of all parties subject to mediation under this subsection.
3. The mediation shall be conducted in the following manner:
a. Each party shall ensure that all persons necessary for complete settlement authority are present at the mediation.
b. Each party shall mediate in good faith.
4. All aspects of the mediation which are not specifically established by this subsection must be conducted according to the rules of practice and procedure adopted by the Supreme Court of this state.
(b) If the parties do not settle the case pursuant to mediation, the last offer of the defendant made at mediation shall be recorded by the mediator in a written report that states the amount of the offer, the date the offer was made in writing, and the date the offer was rejected. If the matter subsequently proceeds to trial under this section and the plaintiff prevails but is awarded an amount in damages, exclusive of attorney’s fees, which is equal to or less than the last offer made by the defendant at mediation, the plaintiff is not entitled to recover any attorney’s fees.
(c) This subsection applies only to claims for liability and damages and does not apply to actions for injunctive relief.
(d) This subsection applies to all causes of action that accrue on or after October 1, 1999.
(3) Discovery of financial information for the purpose of determining the value of punitive damages may not be had unless the plaintiff shows the court by proffer or evidence in the record that a reasonable basis exists to support a claim for punitive damages.
(4) In addition to any other standards for punitive damages, any award of punitive damages must be reasonable in light of the actual harm suffered by the resident and the egregiousness of the conduct that caused the actual harm to the resident.
History.—s. 13, ch. 93-209; s. 13, ch. 98-338; s. 32, ch. 99-225; s. 3, ch. 2006-197.
Note.—Former s. 400.629.
PART III
ADULT DAY CARE CENTERS429.90 Purpose.
429.901 Definitions.
429.903 Applicability.
429.905 Exemptions; monitoring of adult day care center programs colocated with assisted living facilities or licensed nursing home facilities.
429.907 License requirement; fee; exemption; display.
429.909 Application for license.
429.911 Denial, suspension, revocation of license; emergency action; administrative fines; investigations and inspections.
429.913 Administrative fines.
429.915 Conditional license.
429.917 Patients with Alzheimer’s disease or other related disorders; staff training requirements; certain disclosures.
429.918 Licensure designation as a specialized Alzheimer’s services adult day care center.
429.919 Background screening.
429.925 Discontinuance of operation of adult day care centers.
429.927 Right of entry and inspection.
429.929 Rules establishing standards.
429.931 Construction and renovation; requirements.
429.90 Purpose.—The purpose of this part is to develop, establish, and enforce basic standards for adult day care centers in order to assure that a program of therapeutic social and health activities and services is provided to adults who have functional impairments, in a protective environment that provides as noninstitutional an atmosphere as possible.
History.—s. 1, ch. 78-336; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 1, 17, ch. 93-215; s. 4, ch. 2006-197.
Note.—Former s. 400.55.
429.901 Definitions.—As used in this part, the term:
(1) “Adult day care center” or “center” means any building, buildings, or part of a building, whether operated for profit or not, in which is provided through its ownership or management, for a part of a day, basic services to three or more persons who are 18 years of age or older, who are not related to the owner or operator by blood or marriage, and who require such services.
(2) “Agency” means the Agency for Health Care Administration.
(3) “Basic services” include, but are not limited to, providing a protective setting that is as noninstitutional as possible; therapeutic programs of social and health activities and services; leisure activities; self-care training; rest; nutritional services; and respite care.
(4) “Department” means the Department of Elderly Affairs.
(5) “Multiple or repeated violations” means 2 or more violations that present an imminent danger to the health, safety, or welfare of participants or 10 or more violations within a 5-year period that threaten the health, safety, or welfare of the participants.
(6) “Operator” means the licensee or person having general administrative charge of an adult day care center.
(7) “Owner” means the licensee of an adult day care center.
(8) “Participant” means a recipient of basic services or of supportive and optional services provided by an adult day care center.
(9) “Supportive and optional services” include, but are not limited to, speech, occupational, and physical therapy; direct transportation; legal consultation; consumer education; and referrals for followup services.
History.—s. 2, ch. 78-336; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 2, 17, ch. 93-215; s. 55, ch. 95-418; s. 4, ch. 2006-197; s. 165, ch. 2007-230.
Note.—Former s. 400.551.
429.903 Applicability.—Any facility that comes within the definition of an adult day care center which is not exempt under s. 429.905 must be licensed by the agency as an adult day care center.
History.—s. 3, ch. 78-336; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 3, 17, ch. 93-215; s. 4, ch. 2006-197; s. 105, ch. 2007-5.
Note.—Former s. 400.552.
429.905 Exemptions; monitoring of adult day care center programs colocated with assisted living facilities or licensed nursing home facilities.—
(1) The following are exempt from this part:
(a) Any facility, institution, or other place that is operated by the Federal Government or any agency thereof.
(b) Any freestanding inpatient hospice facility that is licensed by the state and which provides day care services to hospice patients only.
(2) A licensed assisted living facility, a licensed hospital, or a licensed nursing home facility may provide services during the day which include, but are not limited to, social, health, therapeutic, recreational, nutritional, and respite services, to adults who are not residents. Such a facility need not be licensed as an adult day care center; however, the agency must monitor the facility during the regular inspection and at least biennially to ensure adequate space and sufficient staff. If an assisted living facility, a hospital, or a nursing home holds itself out to the public as an adult day care center, it must be licensed as such and meet all standards prescribed by statute and rule. For the purpose of this subsection, the term “day” means any portion of a 24-hour day.
History.—s. 4, ch. 78-336; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; s. 6, ch. 88-235; ss. 4, 17, ch. 93-215; s. 20, ch. 95-210; s. 4, ch. 2006-197; s. 30, ch. 2012-160.
Note.—Former s. 400.553.
429.907 License requirement; fee; exemption; display.—
(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 adult day care center in this state.
(2)(a) Except as otherwise provided in this subsection, separate licenses are required for centers operated on separate premises, even though operated under the same management. Separate licenses are not required for separate buildings on the same premises.
(b) If a licensed center becomes wholly or substantially unusable due to a disaster or due to an emergency as those terms are defined in s. 252.34:
1. The licensee may continue to operate under its current license in premises separate from that authorized under the license if the licensee has:
a. Specified the location of the premises in its comprehensive emergency management plan submitted to and approved by the applicable county emergency management authority; and
b. Notified the agency and the county emergency management authority within 24 hours of operating in the separate premises.
2. The licensee shall operate the separate premises only while the licensed center’s original location is substantially unusable and for up to 180 days. The agency may extend use of the alternate premises beyond the initial 180 days. The agency may also review the operation of the disaster premises quarterly.
(3) In accordance with s. 408.805, an applicant or licensee shall pay a fee for each license application submitted under this part and part II of chapter 408. The amount of the fee shall be established by rule and may not exceed $150.
(4) County-operated or municipally operated centers applying for licensure under this part are exempt from the payment of license fees.
History.—s. 5, ch. 78-336; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 5, 17, ch. 93-215; s. 4, ch. 2006-197; s. 2, ch. 2007-219; s. 166, ch. 2007-230; s. 119, ch. 2008-4; s. 344, ch. 2011-142.
Note.—Former s. 400.554.
429.909 Application for license.—In addition to all provisions of part II of chapter 408, the applicant for licensure must furnish a description of the physical and mental capabilities and needs of the participants to be served and the availability, frequency, and intensity of basic services and of supportive and optional services to be provided and proof of adequate liability insurance coverage.
History.—s. 6, ch. 78-336; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 6, 17, ch. 93-215; s. 50, ch. 98-171; s. 4, ch. 2006-197; s. 106, ch. 2007-5; s. 167, ch. 2007-230.
Note.—Former s. 400.555.
429.911 Denial, suspension, revocation of license; emergency action; administrative fines; investigations and inspections.—
(1) The agency may deny, revoke, and suspend a license under this part, impose an action under s. 408.814, and impose an administrative fine against the owner of an adult day care center or its operator or employee in the manner provided in chapter 120 for the violation of any provision of this part, part II of chapter 408, or applicable rules.
(2) Each of the following actions by the owner of an adult day care center or by its operator or employee is a ground for action by the agency against the owner of the center or its operator or employee:
(a) An intentional or negligent act materially affecting the health or safety of center participants.
(b) A violation of this part or of any standard or rule under this part or part II of chapter 408.
(c) Failure to comply with the background screening standards of this part, s. 408.809(1), or chapter 435.
(d) Failure to follow the criteria and procedures provided under part I of chapter 394 relating to the transportation, voluntary admission, and involuntary examination of center participants.
(e) Multiple or repeated violations of this part or of any standard or rule adopted under this part or part II of chapter 408.
(3) The agency is responsible for all investigations and inspections conducted pursuant to this part and s. 408.811.
History.—s. 7, ch. 78-336; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 7, 17, ch. 93-215; s. 40, ch. 96-169; s. 51, ch. 98-171; s. 143, ch. 98-403; s. 16, ch. 2004-267; ss. 4, 63, ch. 2006-197; s. 168, ch. 2007-230; s. 32, ch. 2010-114.
Note.—Former s. 400.556.
429.913 Administrative fines.—
(1)(a) In addition to the requirements of part II of chapter 408, if the agency determines that an adult day care center is not operated in compliance with this part or with rules adopted under this part, the agency, notwithstanding any other administrative action it takes, shall make a reasonable attempt to discuss with the owner each violation and recommended corrective action prior to providing the owner with written notification. The agency may request the submission of a corrective action plan for the center which demonstrates a good faith effort to remedy each violation by a specific date, subject to the approval of the agency.
(b) The owner of a center or its operator or employee found in violation of this part, part II of chapter 408, or applicable rules may be fined by the agency. A fine may not exceed $500 for each violation. In no event, however, may such fines in the aggregate exceed $5,000.
(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 whether to impose a fine 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 participant 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 center of committing or continuing the violation.
History.—ss. 64, 83, ch. 83-181; ss. 8, 17, ch. 93-215; s. 4, ch. 2006-197; s. 169, ch. 2007-230.
Note.—Former s. 400.5565.
429.915 Conditional license.—In addition to the license categories available in part II of chapter 408, the agency may issue a conditional license to an applicant for license renewal or change of ownership if the applicant fails to meet all standards and requirements for licensure. A conditional license issued under this subsection must be limited to a specific period not exceeding 6 months, as determined by the agency, and must be accompanied by an approved plan of correction.
History.—s. 8, ch. 78-336; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 9, 17, ch. 93-215; s. 52, ch. 98-171; s. 27, ch. 2003-57; s. 4, ch. 2006-197; s. 107, ch. 2007-5; s. 170, ch. 2007-230.
Note.—Former s. 400.557.
429.917 Patients with Alzheimer’s disease or other related disorders; staff training requirements; certain disclosures.—
(1) An adult day care center licensed under this part must provide the following staff training:
(a) Upon beginning employment with the facility, 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 adult day care center personnel 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 participant’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 1-hour and 3-hour training provided to employees and 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 adult day care center or to an assisted living facility, nursing home, home health agency, or hospice. The direct caregiver must comply with other applicable continuing education requirements.
(i) An employee who is hired on or after July 1, 2004, must complete the training required by this section.
(2) A center 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 center must give a copy of all such advertisements or a copy of the document to each person who requests information about the center 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 center’s records as part of the license renewal procedure. An adult day care center may not claim to be licensed or designated to provide specialized Alzheimer’s services unless the adult day care center’s license has been designated as such pursuant to s. 429.918.
History.—s. 4, ch. 93-105; s. 3, ch. 2003-271; s. 4, ch. 2006-197; s. 1, ch. 2012-43.
Note.—Former s. 400.5571.
429.918 Licensure designation as a specialized Alzheimer’s services adult day care center.—
(1) This act may be cited as the “Specialized Alzheimer’s Services Adult Day Care Act.”
(2) As used in this section, the term:
(a) “ADRD participant” means a participant who has a documented diagnosis of Alzheimer’s disease or a dementia-related disorder (ADRD) from a licensed physician, licensed physician assistant, or a licensed advanced registered nurse practitioner.
(b) “Dementia” means the loss of at least two intellectual functions, such as thinking, remembering, and reasoning, which is severe enough to interfere with a person’s daily function. The term does not describe a disease, but describes a group of symptoms that may accompany certain diseases or physical conditions.
(c) “Specialized Alzheimer’s services” means therapeutic, behavioral, health, safety, and security interventions; clinical care; support services; and educational services that are customized for the specialized needs of a participant’s caregiver and the participant who is affected by Alzheimer’s disease or an irreversible, degenerative condition resulting in dementia.
(d) “Therapeutic activity” means an individual or group activity that is intended to promote, maintain, or enhance the ADRD participant’s physical, cognitive, social, spiritual, or emotional health.
(3) An adult day care center may apply to the agency to have its license issued under s. 429.907, designated as a “specialized Alzheimer’s services adult day care center,” if the requirements under this section have been met.
(a) The adult day care center must notify the agency at least 30 days prior to initial licensure under s. 429.907 or, if already licensed, at least 6 months prior to the expiration of a license issued under s. 429.907, that the adult day care center is seeking a designation as a specialized Alzheimer’s services adult day care center.
(b) The agency, after receiving the notification pursuant to paragraph (a), may make a determination at an initial licensure inspection or at a licensure renewal inspection as to whether the adult day care center meets the requirements of this section to be designated as a specialized Alzheimer’s services adult day care center. If the agency determines that the adult day care center meets the requirements of this section, it must designate the adult day care center as a specialized Alzheimer’s services adult day care center at the time of initial licensure or at licensure renewal.
(c) If the agency, during the initial or renewal inspection, determines that the adult day care center has committed an act under s. 429.911(2), the agency may deny the request for the designation or revoke such designation.
(d) The agency may at any time revoke the designation if the adult day care center fails to maintain the requirements under this section.
(4) To obtain or maintain the designation under this section, an adult day care center must:
(a) Have a mission statement that includes a commitment to providing dementia-specific services and disclose in the center’s advertisements or in a separate document, which must be made available to the public upon request, the services that distinguish the care as being suitable for a person who has Alzheimer’s disease or a dementia-related disorder.
(b) Provide ADRD participants with a program for dementia-specific, therapeutic activities, including, but not limited to, physical, cognitive, and social activities appropriate for the ADRD participant’s age, culture, and level of function.
(c) Maintain at all times a minimum staff-to-participant ratio of one staff member who provides direct services for every five ADRD participants.
(d) Provide ADRD participants with a program for therapeutic activity at least 70 percent of the time that the center is open.
(e) Provide ADRD participants with hands-on assistance with activities of daily living, inclusive of the provision of urinary and bowel incontinence care.
(f) Use assessment tools that identify the ADRD participant’s cognitive deficits and identify the specialized and individualized needs of the ADRD participant and the caregiver. This assessment shall be conducted when the ADRD participant is initially admitted into the center and shall be updated when the ADRD participant experiences a significant change, but no less frequently than annually.
(g) Create an individualized plan of care for each ADRD participant which addresses the identified, dementia-specific needs of the ADRD participant and the caregiver. The plan of care shall be established when the ADRD participant is initially admitted into the center and reviewed at least quarterly.
(h) Conduct a monthly health assessment of each ADRD participant which includes, but is not limited to, the ADRD participant’s weight, vital signs, and level of assistance needed with activities of daily living.
(i) Complete a monthly update in each ADRD participant’s file regarding the ADRD participant’s status or progress toward meeting the goals indicated on the individualized plan of care.
(j) Assist in the referral or coordination of other dementia-specific services and resources needed by the ADRD participant or the caregiver, such as medical services, counseling, medical planning, legal planning, financial planning, safety and security planning, disaster planning, driving assessment, transportation coordination, or wandering prevention.
(k) Offer, facilitate, or provide referrals to a support group for persons who are caregivers to ADRD participants.
(l) Provide dementia-specific educational materials regularly to ADRD participants, as appropriate, and their caregivers.
(m) Routinely conduct and document a count of all ADRD participants present in the center throughout each day. This count must be compared to each ADRD participant’s attendance record in order to ensure that an ADRD participant is not missing from the center.
(n) Be a secured unit or have working alarm or security devices installed on every door that is accessible to the ADRD participant and provides egress from the center or areas of the center designated for the provision of adult day care - specialized Alzheimer’s services.
(o) Not allow an ADRD participant to administer his or her own medication.
(p) Condition the ADRD participant’s eligibility for admission on whether the ADRD participant has a coordinated mode of transportation to and from the adult day care center, to ensure that the participant does not drive to or from the center.
(5)(a) The operator of an adult day care center having a license designated under this section, and the operator’s designee, as applicable, hired on or after July 1, 2012, shall:
1. Have at least a bachelor’s degree in health care services, social services, or a related field, 1 year of staff supervisory experience in a social services or health care services setting, and a minimum of 1 year of experience in providing services to persons who have dementia;
2. Be a registered or practical nurse licensed in this state, have 1 year of staff supervisory experience in a social services or health care services setting, and have a minimum of 1 year of experience in providing services to persons who have dementia; or
3. Have 5 years of staff supervisory experience in a social services or health care services setting and a minimum of 3 years of experience in providing services to persons who have dementia.
(b) The owner must sign an affidavit under penalty of perjury stating that he or she has verified that the operator, and the operator’s designee, if any, have completed the education and experience requirements of this subsection.
(6)(a) An adult day care center having a license designated under this section must provide the following staff training and supervision:
1. A registered nurse or licensed practical nurse must be on site daily for at least 75 percent of the time that the center is open to ADRD participants. Each licensed practical nurse who works at the center must be supervised in accordance with chapter 464.
2. Upon beginning employment with the center, each employee must receive and review basic written information about interacting with ADRD participants.
3. In addition to the information provided in subparagraph 2., every employee hired on or after July 1, 2012, who has direct contact with ADRD participants shall complete 4 hours of dementia-specific training within 3 months after employment.
4. In addition to the requirements of subparagraphs 2. and 3., each employee hired on or after July 1, 2012, who provides direct care to ADRD participants shall complete an additional 4 hours of dementia-specific training within 6 months after employment.
(b) The Department of Elderly Affairs or its designee shall approve the training required under this section. The department shall adopt rules to establish standards for employees who are subject to this training, for trainers, and for the training required in this section.
(c) Upon completing any training described in this section, the employee shall be issued a certificate that includes the name of the training provider, the topics covered, and the date and signature of the training provider. The certificate is evidence of completion of training in the identified topics, and the employee is not required to repeat training in those topics if the employee changes employment to a different adult day care center.
(d) Each employee hired on or after July 1, 2012, who provides direct care to ADRD participants, must receive and review an orientation plan that includes, at a minimum:
1. Procedures to locate an ADRD participant who has wandered from the center. These procedures shall be reviewed regularly with all direct care staff.
2. Information on the Silver Alert program in this state.
3. Information regarding available products or programs used to identify ADRD participants or prevent them from wandering away from the center, their home, or other locations.
(7)(a) An ADRD participant admitted to an adult day care center having a license designated under this section, or the caregiver when applicable, must:
1. Require ongoing supervision to maintain the highest level of medical or custodial functioning and have a demonstrated need for a responsible party to oversee his or her care.
2. Not actively demonstrate aggressive behavior that places himself, herself, or others at risk of harm.
3. Provide the following medical documentation signed by a licensed physician, licensed physician assistant, or a licensed advanced registered nurse practitioner:
a. Any physical, health, or emotional conditions that require medical care.
b. A listing of the ADRD participant’s current prescribed and over-the-counter medications and dosages, diet restrictions, mobility restrictions, and other physical limitations.
4. Provide documentation signed by a health care provider licensed in this state which indicates that the ADRD participant is free of the communicable form of tuberculosis and free of signs and symptoms of other communicable diseases.
(b) Before admitting an ADRD participant to an adult day care center that has a license designated under this section, the center shall determine whether:
1. The medical, psychological, safety, and behavioral support and intervention required by the ADRD participant can be provided by the center.
2. The resources required to assist with the ADRD participant’s acuity level of care and support needed can be provided or coordinated by the center.
(8)(a) An ADRD participant’s file must include a data sheet, which must be completed within 45 days before or within 24 hours after admission to an adult day care center having a license designated under this section. The data sheet must contain:
1. Information regarding the status of the ADRD participant’s enrollment in an identification or wandering-prevention program, including the name of the program; and
2. A current photograph of the ADRD participant.
(b) Dementia-specific services shall be documented in the ADRD participant’s file.
(c) Notes regarding services provided to the ADRD participant must be entered at least monthly in the ADRD participant’s file, and must indicate the ADRD participant’s status or progress toward achieving identified goals. Additional notes must be entered more frequently if indicated by the ADRD participant’s condition.
(d) An ADRD participant, or the participant’s caregiver, shall annually provide the center with updated medical documentation required under subparagraphs (7)(a)3. and 4., and the center must place that documentation in the ADRD participant’s file.
(9) An adult day care center having a license designated under this section must give to each person who enrolls as an ADRD participant in the center, or the caregiver, a copy of the ADRD participant’s plan of care, as well as information regarding resources to assist in ensuring the safety and security of the ADRD participant, which must include, but need not be limited to, information pertaining to driving for those persons affected by dementia, available technology on wandering-prevention devices and identification devices, the Silver Alert program in this state, and dementia-specific safety interventions and strategies that can be used in the home setting.
(10) If an ADRD participant’s enrollment in the center is involuntarily terminated due to medical or behavioral reasons, the center shall coordinate and execute appropriate discharge procedures, to be determined by rule, with the ADRD participant and the caregiver.
(11) This section does not prohibit an adult day care center that is licensed pursuant to s. 429.907, and without a designation under this section, from providing adult day care services to persons who have Alzheimer’s disease or other dementia-related disorders.
(12) The Department of Elderly Affairs may adopt rules to administer this section.
History.—s. 2, ch. 2012-43.
429.919 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. 53, 71, ch. 98-171; s. 83, ch. 2000-349; s. 25, ch. 2001-53; s. 2, ch. 2001-67; s. 148, ch. 2001-277; s. 49, ch. 2004-267; ss. 4, 64, ch. 2006-197; s. 108, ch. 2007-5; s. 171, ch. 2007-230; s. 33, ch. 2010-114.
Note.—Former s. 400.5572.
429.925 Discontinuance of operation of adult day care centers.—In addition to the requirements of part II of chapter 408, before operation of an adult day care center may be voluntarily discontinued, the operator must, at least 60 days before the discontinuance of operation, inform each participant of the fact and the proposed date of discontinuance of operation.
History.—s. 10, ch. 78-336; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 12, 17, ch. 93-215; s. 4, ch. 2006-197; s. 174, ch. 2007-230.
Note.—Former s. 400.559.
429.927 Right of entry and inspection.—In accordance with s. 408.811, the agency or department has the right to enter the premises of any adult day care center licensed pursuant to this part, at any reasonable time, in order to determine the state of compliance with this part, part II of chapter 408, and applicable rules.
History.—s. 11, ch. 78-336; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 13, 17, ch. 93-215; s. 4, ch. 2006-197; s. 175, ch. 2007-230.
Note.—Former s. 400.56.
429.929 Rules establishing standards.—
(1) The agency, in consultation with the department, may adopt rules to administer the requirements of part II of chapter 408. The Department of Elderly Affairs, in conjunction with the agency, shall adopt rules to implement the provisions of this part. The rules must include reasonable and fair standards. Any conflict between these standards and those that may be set forth in local, county, or municipal ordinances shall be resolved in favor of those having statewide effect. Such standards must relate to:
(a) The maintenance of adult day care centers with respect to plumbing, heating, lighting, ventilation, and other building conditions, including adequate meeting space, to ensure the health, safety, and comfort of participants and protection from fire hazard. Such standards may not conflict with chapter 553 and must be based upon the size of the structure and the number of participants.
(b) The number and qualifications of all personnel employed by adult day care centers who have responsibilities for the care of participants.
(c) All sanitary conditions within adult day care centers and their surroundings, including water supply, sewage disposal, food handling, and general hygiene, and maintenance of sanitary conditions, to ensure the health and comfort of participants.
(d) Basic services provided by adult day care centers.
(e) Supportive and optional services provided by adult day care centers.
(f) Data and information relative to participants and programs of adult day care centers, including, but not limited to, the physical and mental capabilities and needs of the participants, the availability, frequency, and intensity of basic services and of supportive and optional services provided, the frequency of participation, the distances traveled by participants, the hours of operation, the number of referrals to other centers or elsewhere, and the incidence of illness.
(g) Components of a comprehensive emergency management plan, developed in consultation with the Department of Health, the Agency for Health Care Administration, and the Division of Emergency Management.
(2) Pursuant to this part, s. 408.811, and applicable rules, the agency may conduct an abbreviated biennial inspection of key quality-of-care standards, in lieu of a full inspection, of a center that has a record of good performance. However, the agency must conduct a full inspection of a center that has had one or more confirmed complaints within the licensure period immediately preceding the inspection or which has a serious problem identified during the abbreviated inspection. The agency shall develop the key quality-of-care standards, taking into consideration the comments and recommendations of the Department of Elderly Affairs and of provider groups. These standards shall be included in rules adopted by the Department of Elderly Affairs.
History.—ss. 13, 18, ch. 78-336; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 14, 17, ch. 93-215; s. 56, ch. 95-418; s. 61, ch. 2001-45; s. 4, ch. 2006-197; s. 176, ch. 2007-230; s. 345, ch. 2011-142.
Note.—Former s. 400.562.
429.931 Construction and renovation; requirements.—The requirements for the construction and the renovation of a center must comply with the provisions of chapter 553 which pertain to building construction standards, including plumbing, electrical code, glass, manufactured buildings, accessibility by physically handicapped persons, and the state minimum building codes.
History.—s. 14, ch. 78-336; s. 4, ch. 79-152; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 15, 17, ch. 93-215; s. 4, ch. 2006-197.
Note.—Former s. 400.563.