The Florida Senate

400.419  Violations; penalties.--

(1)

(a)  If the agency determines that a facility is not in compliance with standards promulgated pursuant to the provisions of this part, including the failure to report evidence of the facility's financial instability or the operation of a facility without a license, the agency, as an alternative to or in conjunction with an administrative action against a facility, shall make a reasonable attempt to discuss each violation and recommended corrective action with the owner or administrator of the facility, prior to written notification thereof. The agency, instead of fixing a period within which the facility shall enter into compliance with standards, may request a plan of corrective action from the facility which demonstrates a good faith effort to remedy each violation by a specific date, subject to the approval of the agency.

(b)  Any facility owner or administrator found in violation of this part, including any individual operating a facility without a license, shall be subject to a fine, set and levied by the agency.

(c)  Each day during which any person violates any such provision after the date fixed for termination of the violation, as ordered by the agency, constitutes an additional, separate, and distinct violation.

(d)  Any action taken to correct a violation shall be documented in writing by the administrator of the facility and verified through followup visits by licensing personnel of the agency. The agency may impose a fine and, in the case of an owner-operated facility, revoke a facility's license when a facility administrator fraudulently misrepresents action taken to correct a violation.

(e)  If a facility desires to appeal any agency action under this section, it shall send a written request for a hearing to the agency within 15 days of receipt by certified mail of notice of the action of the agency. If the fine is upheld, the violator shall pay the fine, plus interest at the legal rate as specified in s. 687.01, for each day beyond the date set by the agency for payment of the fine.

(2)  In determining if a penalty is to be imposed and in fixing the amount of the penalty to be imposed, if any, for a violation, 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 statutes 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.

(3)  Each violation 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 of each violation on the face of the notice of the violation as follows:

(a)  Class "I" violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal 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 constituting a class I violation shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the agency, is required for correction. A class I violation is subject to a civil penalty in an amount not less than $1,000 and not exceeding $5,000 for each violation. A fine may be levied notwithstanding the correction of the violation.

(b)  Class "II" violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines directly threaten the physical or emotional health, safety, or security of the facility residents, other than class I violations. A class II violation is subject to a civil penalty in an amount not less than $500 and not exceeding $1,000 for each violation. A citation for a class II violation shall 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 may be imposed, unless it is a repeated offense.

(c)  Class "III" violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents, other than class I or class II violations. A class III violation is subject to a civil penalty of not less than $100 and not exceeding $500 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 may be imposed, unless it is a repeated offense.

(d)  Class "IV" violations are those conditions or occurrences related to the operation and maintenance of a building or to required reports, forms, or documents that do not have the potential of negatively affecting residents. These violations are of a type that the agency determines do not threaten the health, safety, or security of residents of the facility. A facility that does not correct a class IV violation within the time limit specified in the agency-approved corrective action plan is subject to a civil penalty of not less than $50 nor more than $200 for each violation. Any class IV violation that is corrected during the survey will be identified as an agency finding and not as a violation.

(4)  The agency may set and levy a fine not to exceed $500 for each violation which cannot be classified according to subsection (3). In no event may such fine in the aggregate exceed $5,000.

(5)  Civil penalties paid by any facility under the provisions of subsection (3) shall be deposited into the Health Care Trust Fund and expended as provided in s. 400.418.

(6)  The agency shall develop and disseminate an annual list of all facilities sanctioned or fined in excess of $500 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 ¹Department of Health and Rehabilitative Services, the area agencies on aging, the Statewide Human Rights Advocacy Committee, and the state and district nursing home and long-term care facility ombudsman councils. The agency may charge a fee commensurate with the cost of printing and postage to other interested parties requesting a copy of this list.

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.

¹Note.--The Department of Health and Rehabilitative Services was redesignated as the Department of Children and Family Services by s. 5, ch. 96-403, and the Department of Health was created by s. 8, ch. 96-403.