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Senate Bill 0188

Florida Senate - 1998 SB 188 By Senator Brown-Waite 10-129-98 1 A bill to be entitled 2 An act relating to transitional living 3 facilities for brain-injured and 4 spinal-cord-injured persons; creating pt. IX of 5 ch. 400, F.S.; creating s. 400.905, F.S.; 6 providing for licensure of transitional living 7 facilities; creating s. 400.906, F.S.; 8 providing definitions; creating s. 400.907, 9 F.S.; establishing license and fee 10 requirements; creating s. 400.908, F.S.; 11 regulating sale or transfer of ownership of a 12 facility; creating s. 400.909, F.S.; providing 13 for denial, revocation, or suspension of a 14 license and imposition of an administrative 15 fine; creating s. 400.910, F.S.; providing for 16 a moratorium on admissions; creating s. 17 400.911, F.S.; providing for initial licensure 18 application; creating s. 400.912, F.S.; 19 providing for renewal, expiration, and 20 conditional licenses; creating s. 400.913, 21 F.S.; requiring reports of abuse in facilities; 22 creating s. 400.914, F.S.; providing for 23 disposition of fees and fines; creating s. 24 400.915, F.S.; providing for violations and 25 penalties; creating s. 400.916, F.S.; 26 prohibiting rebates; providing penalties; 27 creating s. 400.917, F.S.; prohibiting certain 28 solicitations; allowing certain third-party 29 supplementation; creating s. 400.918, F.S.; 30 providing for injunctive proceedings; creating 31 s. 400.919, F.S.; providing for receivership 1 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 proceedings; creating s. 400.920, F.S.; 2 providing for contracts; creating s. 400.921, 3 F.S.; providing requirements for use of 4 licensed personnel; creating s. 400.922, F.S.; 5 providing for appropriateness of placements and 6 examination of residents; creating s. 400.923, 7 F.S.; providing for property and personal 8 affairs of residents; providing a penalty; 9 creating s. 400.924, F.S.; providing a resident 10 bill of rights; creating 400.925, F.S.; 11 providing for civil actions to enforce rights; 12 creating s. 400.926, F.S.; providing right of 13 entry and inspection; creating s. 400.927, 14 F.S.; providing procedures for closing of 15 facilities, including notice and penalties; 16 creating s. 400.928, F.S.; providing for rules 17 establishing standards; creating s. 400.929, 18 F.S.; providing for maintenance of records and 19 reports; amending s. 413.605, F.S.; providing 20 additional duty of the advisory council on 21 brain and spinal cord injuries; amending s. 22 413.273, F.S.; revising per diem and travel 23 expenses for members of certain councils; 24 amending s. 413.395, F.S.; authorizing 25 incorporation of the Florida Independent Living 26 Council; authorizing members' compensation and 27 reimbursement for child care; amending s. 28 413.405, F.S., relating to the Rehabilitation 29 Advisory Council; authorizing members' 30 reimbursement for child care; repealing s. 31 400.805, F.S., relating to transitional living 2 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 facilities for brain-injured and 2 spinal-cord-injured persons; providing an 3 effective date. 4 5 Be It Enacted by the Legislature of the State of Florida: 6 7 Section 1. Sections 2-26 of this act create part IX of 8 chapter 400, Florida Statutes, which is entitled "Transitional 9 Living Facilities," and which consists of sections 400.905, 10 400.906, 400.907, 400.908, 400.909, 400.911, 400.912, 400.913, 11 400.914, 400.915, 400.916, 400.917, 400.918, 400.919, 400.920, 12 400.921, 400.922, 400.923, 400.924, 400.925, 400.926, 400.927, 13 400.928, 400.929, Florida Statutes. 14 Section 2. Section 400.905, Florida Statutes, is 15 created to read: 16 400.905 Transitional living facilities for 17 brain-injured and spinal-cord-injured persons.-- 18 (1) Facilities that must be licensed under this part 19 include all facilities that deliver services under this part, 20 except as otherwise provided in this part. 21 (2) The following are exempt from the requirements of 22 this part or ineligible for a license issued under this part: 23 (a) Any facility, institution, or other place operated 24 by the Federal Government or any agency of the Federal 25 Government. 26 (b) Any facility or part of a facility licensed under 27 chapter 393 or chapter 394 or licensed or eligible for 28 licensure under any other part of this chapter. 29 (3)(a) The agency shall, in consultation with the 30 division, adopt rules that govern the physical plant and 31 fiscal management of transitional living facilities. 3 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (b) The division shall, in consultation with the 2 agency, adopt rules that govern the services provided to 3 clients. Under those rules, investigative and enforcement 4 duties must be divided between the division and the agency as 5 described in part II of chapter 413 and this part. 6 (4)(a) It is unlawful for any person to offer or 7 advertise, in any medium, services or care as a transitional 8 living facility, or to use the term "transitional living 9 facility" or the term "transitional living program" to 10 describe services or care in any advertisement or offering, 11 without obtaining a license under this part. 12 (b) It is unlawful for a person licensed under this 13 part to advertise or represent to the public that the licensee 14 holds a license for any other type of facility. 15 (5) A violation of paragraph (4)(a) or paragraph 16 (4)(b) or rules adopted under those paragraphs is a 17 misdemeanor of the first degree, punishable as provided in s. 18 775.082 or s. 775.083. 19 Section 3. Section 400.906, Florida Statutes, is 20 created to read: 21 400.906 Definitions.--As used in this part, the term: 22 (1) "Activities of daily living" is defined as 23 provided in s. 413.20. 24 (2) "Administrator" means an individual who has 25 general administrative charge of a facility. 26 (3) "Agency" means the Agency for Health Care 27 Administration. 28 (4) "Applicant" means any facility owner or, with 29 respect to a business entity, a person appointed by the entity 30 to make application for a license. 31 4 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (5) "Community reintegration" means the point at which 2 the division makes a determination that all resources 3 available for addressing the medical, psychosocial, and 4 personal needs of an individual within a particular community 5 and necessary to minimize secondary medical and psychological 6 complications and long-term care and promote independence and 7 self-sufficiency have been identified and that the individual 8 may be safely accommodated within the community independent of 9 any further support from the division. 10 (6) "Department" means the Department of Labor and 11 Employment Security. 12 (7) "Division" means the Division of Vocational 13 Rehabilitation of the Department of Labor and Employment 14 Security. 15 (8) "Facility" means a transitional living facility. 16 (9) "Personal assistance services" is defined as 17 provided in s. 413.20. 18 (10) "Resident" means a person who is 16 years of age 19 or older and who is residing in and receiving care at or 20 through a facility. 21 (11) "Resident's representative or designee" means a 22 person who is 18 years of age or older, other than the 23 facility owner or an agent or employee of the facility, and 24 who is designated in writing by the resident, if legally 25 competent, to receive notice of changes in the contract 26 executed under s. 400.920 and to receive notice of and 27 participate in meetings between the resident and the facility 28 owner, administrator, or staff concerning the rights of the 29 resident. 30 (12) "Supervising activities of daily living" means 31 reminding residents to engage in activities of daily living, 5 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 and, when necessary, observing or providing verbal cueing to 2 residents while they perform these activities. 3 (13) "Time-limited" as used in s. 413.49(6)(c) means 4 the period of time during which the individual demonstrates 5 measurable progress toward achieving community reintegration. 6 (14) "Transitional living facility" means a site at 7 which the functions set forth in s. 413.49(6)(b)-(d) are 8 performed primarily for the provision of services related to 9 and directed at traumatic injury and operating solely to 10 effectuate a transitional living program, which site is in 11 compliance with the responsibilities stated in this part and 12 relevant parts of chapter 413. 13 (15) "Transitional living program" means a written 14 plan that: 15 (a) Conforms to the goal stated in s. 413.49(6)(b), 16 which is developed and agreed upon by the resident and, if 17 applicable, the resident's representative or designee or the 18 resident's surrogate, guardian, or attorney in fact, if any, 19 and the administrator or designee representing the facility; 20 (b) Addresses the unique physical and psychosocial 21 needs, abilities, and personal preferences of a resident who 22 is receiving services at or through the facility; and 23 (c) Includes information, in easily understood 24 language, concerning the services that are to be provided, who 25 is to provide the services, when the services are to be 26 rendered, and the purposes and benefits of the services. 27 (16) "Traumatic injury" is defined as provided in s. 28 413.20. 29 Section 4. Section 400.907, Florida Statutes, is 30 created to read: 31 400.907 License required; fee; display.-- 6 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (1)(a) It is unlawful to operate or maintain a 2 facility without first obtaining from the agency a license 3 authorizing such operation. 4 (b)1. Any person found to be in violation of paragraph 5 (a) who, upon notification by the agency, fails to apply for a 6 license within 10 working days after receiving the 7 notification commits a felony of the third degree, punishable 8 as provided in s. 775.082, s. 775.083, or s. 775.084. 9 2. If the agency determines that an owner is operating 10 or maintaining a facility without obtaining a license and 11 determines that a condition that exists in the facility poses 12 a threat to the health, safety, or welfare of a resident of 13 the facility, the owner commits neglect as defined in s. 14 415.102 and is subject to the same actions and penalties 15 specified in ss. 400.909 and 400.915 for a negligent act 16 seriously affecting the health, safety, or welfare of a 17 resident of the facility. 18 (2) Separate licenses are required for facilities 19 maintained in separate premises, even though operated under 20 the same management. A separate license is not required for 21 separate buildings on the same grounds. 22 (3) A license granted by the agency must state the 23 maximum licensed resident capacity of the facility, whether 24 the facility is accredited to serve brain-injured persons or 25 spinal-cord-injured persons, or both, the date the license was 26 issued, the expiration date of the license, and any other 27 information that the agency considers necessary. 28 (4) The annual license fee for a facility is $3,000 29 per license plus $50 per resident times the maximum licensed 30 resident capacity of the facility. Neither fee is refundable, 31 in whole or in part. 7 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (5) The license must be displayed in a conspicuous 2 place inside the facility. 3 (6) A license is valid only in the possession of the 4 individual, firm, partnership, association, or corporation to 5 which it was issued and may not be sold, assigned, or 6 otherwise transferred, voluntarily or involuntarily; nor is a 7 license valid for any premises other that the premises for 8 which it was originally issued. 9 (7) For the purpose of any activity regulated under 10 this part in which a licensed facility participates in excess 11 of the authority granted under the facility's license, the 12 facility is considered unlicensed. 13 Section 5. Section 400.908, Florida Statutes, is 14 created to read: 15 400.908 Sale or transfer of ownership of a 16 facility.--It is the intent of the Legislature to protect the 17 rights of the residents of a facility when the facility is 18 sold or the ownership thereof is transferred. When a facility 19 is sold or the ownership thereof is transferred, including any 20 transfer by lease: 21 (1) The transferee shall apply to the agency for a new 22 license at least 60 days before the date of transfer of 23 ownership. 24 (2)(a) The transferor shall notify the agency in 25 writing at least 60 days before the date of transfer of 26 ownership. 27 (b) The new owner shall notify the residents, in 28 writing, of the transfer of ownership within 7 days after 29 receipt of the license. 30 (3) The transferor is responsible and liable for: 31 8 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (a) The lawful operation of the facility and the 2 welfare of the residents domiciled in the facility, until the 3 date the transferee is licensed by the agency. 4 (b) Each penalty imposed against the facility for any 5 violation that occurred before the date of the transfer of 6 ownership, unless the penalty is a moratorium on admissions or 7 a denial of licensure. A moratorium on admissions or a denial 8 of licensure remains in effect after the transfer of 9 ownership, unless either the agency has approved the 10 transferee's corrective action plan or the conditions that 11 created the moratorium or denial have been corrected, and may 12 be grounds for denial of licensure to the transferee in 13 accordance with chapter 120. 14 (c) Any outstanding liability to the state, unless the 15 transferee has agreed, as a condition of sale or transfer, to 16 accept the outstanding liability and to guarantee payment 17 therefor; except that, if the transferee fails to meet these 18 obligations, the transferor remains liable for the outstanding 19 liability. 20 (4) The transferor of a facility the license of which 21 is denied pending an administrative hearing shall, as a part 22 of the written transfer-of-ownership contract, advise the 23 transferee that a corrective action plan must be submitted by 24 the transferee and approved by the agency at least 7 days 25 before the transfer of ownership and that failure to correct 26 the condition that resulted in the moratorium on admissions or 27 the denial of licensure is grounds for denial of the 28 transferee's license. 29 (5) The transferee must provide the agency with a copy 30 of the record warranty deed or lease agreement before a 31 license may be issued. 9 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 Section 6. Section 400.909, Florida Statutes, is 2 created to read: 3 400.909 Denial, revocation, or suspension of license; 4 administrative fine.-- 5 (1) The agency may deny, revoke, or suspend a license 6 issued under this part or impose an administrative fine in the 7 manner provided in chapter 120. At the chapter 120 hearing, 8 the agency must prove by a preponderance of the evidence that 9 its actions are warranted. 10 (2) Any of the following actions by a facility or any 11 employee constitutes grounds for action by the agency against 12 a licensee: 13 (a) An intentional or negligent act that seriously 14 affects the health, safety, or welfare of a resident of the 15 facility. 16 (b) The determination by the agency, pursuant to the 17 information obtained through this part, that the facility 18 owner or administrator is not of suitable character or 19 competency, or that the owner lacks the financial ability, to 20 provide continuing adequate care to residents. 21 (c) Misappropriation or conversion of the property of 22 a resident of the facility. 23 (d) Five or more repeated or recurring identical or 24 similar class III violations of this part which have been 25 identified by the agency within the last 18 months and which, 26 in the aggregate, affect the health, safety, or welfare of the 27 facility residents. 28 (e) A confirmed report of adult abuse, neglect, or 29 exploitation, as defined in s. 415.102, which has been upheld 30 following a chapter 120 hearing or a waiver of such 31 proceedings where the perpetrator is an employee, volunteer, 10 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 administrator, or owner, or otherwise has access to the 2 residents of a facility, and the administrator has not taken 3 action to remove the perpetrator. Exemptions from 4 disqualification may be granted as set forth in s. 435.07. 5 Administrative action may not be taken against the facility if 6 the perpetrator has been granted an exemption. 7 (f) Violation of a moratorium. 8 (g) Failure of the licensee to meet minimum license 9 standards or the requirements of rules adopted under this 10 part. 11 (h) A fraudulent statement on an application for a 12 license or on any other signed and notarized document required 13 by the agency. 14 (i) A false representation or omission of any material 15 fact in making an application for licensure, including 16 submission of an application that conceals the controlling or 17 ownership interest of any officer, director, agent, managing 18 employee, affiliated person, partner, or shareholder who may 19 not be eligible for licensure. 20 (j) Having been found by any licensing, certifying, or 21 professional standards board or agency to have violated the 22 standards or conditions relating to licensure or certification 23 or the quality of services provided. 24 (k) Being currently excluded, suspended, or terminated 25 from, or having involuntarily withdrawn from, participation in 26 Florida's or any other state's Medicaid program or 27 participation in the Medicare program or any other 28 governmental or private health care or health insurance 29 program. 30 (3) The agency may deny a license to an applicant who 31 owns 5 percent or more of, or operates, a facility that has 11 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 had a license denied, suspended, or revoked pursuant to 2 subsection (2) or, during the 2 years immediately before the 3 application for licensure, has had a moratorium imposed on 4 admissions, has had an injunctive proceeding initiated against 5 it, has had a receiver appointed, has been closed due to 6 financial inability to operate, or has not yet paid a fine 7 assessed under this part. 8 (4) An action taken by the agency to suspend, deny, or 9 revoke a facility's license under this part, in which the 10 agency claims that the facility owner or an employee has 11 threatened the health, safety, or welfare of a resident of the 12 facility, must be heard by the Division of Administrative 13 Hearings of the Department of Administration within 120 days 14 after receipt of the facility's request for a hearing, unless 15 that time period is waived by both parties. 16 Section 7. Section 400.910, Florida Statutes, is 17 created to read: 18 400.910 Moratorium on admissions.--The agency may 19 impose an immediate moratorium on admissions to any facility 20 when the agency determines that any condition in the facility 21 presents a threat to the health, safety, or welfare of the 22 residents in the facility. If a facility's license is denied, 23 revoked, or suspended as a result of a violation of s. 24 400.909, the facility may be subject to immediate imposition 25 of a moratorium on admissions to run concurrently with 26 licensure denial, revocation, or suspension. 27 Section 8. Section 400.911, Florida Statutes, is 28 created to read: 29 400.911 Initial license application.-- 30 (1) Application for licensure must be made to the 31 agency on forms furnished by it and must be accompanied by the 12 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 appropriate license fee. The application must contain 2 sufficient information, as required by rule, to establish that 3 the applicant can provide adequate care. 4 (2) The application must be under oath and must 5 contain the following: 6 (a) The name, address, date of birth, and social 7 security number of the applicant and the name by which the 8 facility is to be known. Pursuant thereto: 9 1. If the applicant is a firm, partnership, or 10 association, the application must contain the name, address, 11 date of birth, and social security number of every member 12 thereof. 13 2. If the applicant is a corporation, the application 14 must contain its name and address; the name, address, date of 15 birth, and social security number of each of its directors and 16 officers; and the name and address of each person who has at 17 least a 5-percent interest in the corporation. 18 (b) The name and address of any professional service, 19 firm, association, partnership, or corporation that is to 20 provide goods, leases, or services to the facility for which 21 the application is made, if a 10-percent or greater interest 22 in the service, firm, association, partnership, or corporation 23 is owned by a person whose name must be listed on the 24 application under paragraph (a). 25 (c) Information that provides a source to establish 26 the good moral character, financial stability, and competency 27 of the applicant and of each person specified in the 28 application under subparagraph (a)1. or subparagraph (a)2. who 29 has at least a 5-percent interest in the firm, partnership, 30 association, or corporation and, if applicable, of the 31 administrator, including the name and address of any 13 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 long-term-care facility with which the applicant or 2 administrator has been affiliated through ownership or 3 employment within the 5 years immediately before the date of 4 the application. 5 (d) A signed affidavit disclosing any financial 6 ownership interest that the applicant or any principal, 7 partner, or shareholder thereof holds or has held within the 8 previous 5 years in any other facility licensed under this 9 part, or in any other entity licensed by the state or another 10 state to provide health or residential care, which facility or 11 entity has closed or ceased to operate as a result of 12 financial problems. 13 (e) The names and addresses of other persons of whom 14 the agency may inquire as to the character and reputation of 15 the applicant and, if applicable, of the administrator. 16 (f) Information relating to the applicant or, if 17 applicable, to the administrator pertaining to any arrest for, 18 or adjudication or conviction of, a crime that relates to 19 providing care in a facility or the ability to operate a 20 facility. 21 (g) The names and addresses of other persons of whom 22 the agency may inquire as to the financial responsibility of 23 the applicant. 24 (h) Identification of all other homes or facilities, 25 including the addresses and the license or licenses under 26 which they operate, if applicable, which are operated by the 27 applicant and which provide housing, meals, and personal 28 services to adults. 29 (i) Such other reasonable information as is required 30 by the agency to evaluate the ability of the applicant to meet 31 the responsibilities imposed under this part. 14 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (j) The location of the facility for which a license 2 is sought and documentation, signed by the appropriate local 3 government official, stating that the applicant has met local 4 zoning requirements. 5 (k) The name, address, date of birth, social security 6 number, education, and experience of the administrator. 7 (3) The applicant shall furnish satisfactory proof of 8 financial ability to operate the facility in accordance with 9 the requirements of this part. An applicant applying for an 10 initial license shall submit a balance sheet setting forth the 11 assets and liabilities of the owner and a statement projecting 12 revenues, expenses, taxes, extraordinary items, and other 13 credits or charges for the first 12 months of operation of the 14 facility. 15 (4)(a) As used in this subsection, the term: 16 1. "Applicant" means an individual applicant, or any 17 officer, director, agent, managing employee, or affiliated 18 person, or any partner or shareholder having an ownership 19 interest equal to 5 percent or greater in the corporation, 20 partnership, or other business entity. 21 2. "Managing employee" means the administrator or 22 other similarly titled individual who is responsible for the 23 daily operation of the facility. 24 3. "Affiliated person" means any person who directly 25 or indirectly manages, controls, or oversees the operation of 26 a corporation or other business entity that is a licensee, 27 regardless of whether the person is a partner, shareholder, 28 owner, officer, director, agent, or employee of the entity. 29 (b) Upon receipt of a completed, signed, and dated 30 application, the agency shall require background screening, 31 15 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 using the level 2 standards for screening set forth in chapter 2 435, for the applicant. 3 (c) Each applicant must submit to the Department of 4 Law Enforcement the information, including a full set of 5 fingerprints necessary to enable a criminal background 6 investigation to be conducted for a state criminal and 7 juvenile history records check. The Department of Law 8 Enforcement shall forward the fingerprints to the Federal 9 Bureau of Investigation for a national criminal history 10 records check. Upon completion of the state and national 11 criminal history records checks, the Department of Law 12 Enforcement shall report the findings to the agency. The 13 actual cost of such state and national criminal history 14 records checks must be borne by the applicant. 15 (d) Each applicant must submit to the Department of 16 Children and Family Services a complete set of information 17 necessary for conducting records checks through the 18 department's central abuse registry. The actual costs of 19 searching the department's central abuse registry must be 20 borne by the applicant. 21 (e) A license may not be granted to any applicant who 22 has been found guilty of, regardless of adjudication, or 23 entered a plea of nolo contendere or guilty to, any offense 24 prohibited under the level 2 standards of chapter 435. A 25 license may not be granted to any applicant who has a 26 confirmed report of abuse, neglect, or exploitation as defined 27 in s. 415.102, which has been uncontested or upheld under s. 28 415.1075, or who has a proposed confirmed report that remains 29 unserved and is maintained in the central abuse registry and 30 tracking system pursuant to s. 415.1065(2)(c). 31 16 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (f) The agency shall also require every applicant, as 2 a condition of license application, to submit information 3 concerning any prior violation, fine, suspension, termination, 4 or other administrative action taken under the laws, rules, or 5 regulations of any regulatory body of this state or of any 6 other state or the Federal Government, and of any prior 7 violation of the laws, rules, or regulations relating to the 8 Medicaid or Medicare programs. 9 (g) The agency may deny licensure to any applicant 10 who: 11 1. Has made a false representation or omission of any 12 material fact in making the application, including the 13 submission of an application that conceals the controlling or 14 ownership interest of any officer, director, agent, managing 15 employee, affiliated person, partner, or shareholder who may 16 not be eligible for licensure. 17 2. Has been found by any licensing, certifying, or 18 professional standards board or agency to have violated the 19 standards or conditions relating to licensure or certification 20 or the quality of services provided. 21 3. Has been or is currently excluded, suspended, or 22 terminated from, or has involuntarily withdrawn from, 23 participation in Florida's Medicaid program or any other 24 state's Medicaid program, or participation in the Medicare 25 program or any other governmental or private health care or 26 health insurance program. 27 (h) Upon licensure renewal, each applicant must submit 28 to the agency, under penalty of perjury, an affidavit of 29 compliance with the background screening provisions of this 30 section. 31 17 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (i) Proof of compliance with the level 2 background 2 screening requirements of chapter 435 which has been submitted 3 within the previous 5 years to fulfill any other Florida 4 health care licensure requirements will satisfy the 5 requirements of the Department of Law Enforcement and 6 Department of Children and Family Services background check, 7 if the proof of compliance is accompanied, under penalty of 8 perjury, by an affidavit of compliance with these background 9 screening provisions. 10 (5) The applicant shall provide proof of liability 11 insurance. 12 (6) A county or municipality may not issue an 13 occupational license that is being obtained for the purpose of 14 operating a facility regulated under this part without first 15 determining that the applicant has been licensed by the agency 16 to operate such a facility at the specified location or 17 locations. The agency shall furnish to the local agencies 18 responsible for issuing occupational licenses sufficient 19 instruction for making such determinations. 20 Section 9. Section 400.912, Florida Statutes, is 21 created to read: 22 400.912 Expiration of license; renewal; conditional 23 license.-- 24 (1) A license issued for the operation of a facility, 25 unless sooner suspended or revoked, expires automatically 1 26 year after the date of issuance. The agency shall notify the 27 facility by certified mail 120 days before the expiration of 28 the license that relicensure is necessary to continue 29 operation. Ninety days before the expiration date, an 30 application for renewal must be submitted to the agency. A 31 license must be renewed by filing an application on forms 18 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 furnished by the agency, if the applicant has first met the 2 requirements established under this part and all rules adopted 3 under this part. The failure to file a timely application 4 results in a late fee being charged to the facility in an 5 amount equal to 50 percent of the fee in effect on the last 6 preceding regular renewal date. Late fees must be deposited 7 into the Health Care Trust Fund as provided in s. 400.914. The 8 facility shall file with the application satisfactory proof of 9 ability to operate the facility in accordance with the 10 requirements of this part. If an applicant for renewal of a 11 license has complied on the initial license application with 12 the provisions of s. 400.911 with respect to proof of 13 financial ability to operate, the applicant is not required to 14 provide proof of financial ability on renewal applications, 15 unless the facility or any other facility owned or operated in 16 whole or in part by the same person or business entity has 17 demonstrated financial instability as evidenced by bad checks, 18 delinquent accounts, or nonpayment of withholding taxes, 19 utility expenses, or other essential services or unless the 20 agency suspects that the facility is not financially stable as 21 a result of review or inspection. Each facility shall report 22 to the agency any adverse court action concerning the 23 facility's financial viability within 7 days after its 24 occurrence. The agency must be given access to books, records, 25 and any other financial documents maintained by the facility 26 to the extent necessary to carry out the purposes of this 27 section. A license for the operation of a facility must not be 28 renewed if the licensee has any outstanding fines assessed 29 under this part which are in final order status. 30 (2) Upon application for renewal of a license, the 31 applicant must submit to the agency, under penalty of perjury, 19 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 an affidavit of compliance with the background screening 2 provisions of this part. Proof of compliance with the level 2 3 background screening requirements of chapter 435 which has 4 been submitted within the previous 5 years to fulfill any 5 other Florida health care licensure requirements will satisfy 6 the requirements of the Department of Law Enforcement and 7 Department of Children and Family Services background check if 8 the proof of compliance is accompanied, under penalty of 9 perjury, by an affidavit of compliance with these background 10 screening provisions. 11 (3) A licensee against whom a revocation or suspension 12 proceeding is pending at the time of license renewal may be 13 issued a conditional license effective until final disposition 14 by the agency of such proceeding. If judicial relief is sought 15 from the final disposition, the court having jurisdiction may 16 issue a conditional license for the duration of the judicial 17 proceeding. 18 (4) A conditional license may be issued to an 19 applicant for license renewal when the applicant fails to meet 20 a standard or requirement for licensure. A conditional license 21 issued under this subsection must be limited in duration to a 22 specified period not to exceed 6 months, as determined by the 23 agency, and must be accompanied by an approved corrective 24 action plan. 25 Section 10. Section 400.913, Florida Statutes, is 26 created to read: 27 400.913 Reports of abuse in facilities.--When an 28 employee, volunteer, administrator, or owner of a facility has 29 a confirmed report of adult abuse, neglect, or exploitation, 30 as defined in s. 415.102, and the protective investigator 31 knows that such person is an employee, volunteer, 20 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 administrator, or owner of a facility, the protective 2 investigator must notify the agency of the confirmed report. 3 Section 11. Section 400.914, Florida Statutes, is 4 created to read: 5 400.914 Disposition of fees and administrative 6 fines.-- 7 (1) Income from license fees, late fees, and 8 administrative fines which is generated under ss. 400.907, 9 400.909, 400.912, 400.915, 400.916, 400.926, and 400.927 must 10 be deposited in the Health Care Trust Fund administered by the 11 agency. Such funds must be directed to and used by the agency 12 for the following purposes: 13 (a) Up to 50 percent of the trust funds accrued each 14 fiscal year under this part may be used to offset the expenses 15 of receivership, pursuant to s. 400.919, if the court 16 determines that the income and assets of the facility are 17 insufficient to provide for adequate management and operation. 18 (b) The balance of trust funds accrued each year under 19 this part must be used to offset the costs of the licensure 20 program, including the costs of verifying information 21 submitted and conducting inspections and monitoring visits 22 under this part and part II of chapter 413. 23 (2) Income from fees which is generated pursuant to s. 24 400.928(3) must be deposited in the Health Care Trust Fund and 25 used to offset the costs of printing and postage. 26 Section 12. Section 400.915, Florida Statutes, is 27 created to read: 28 400.915 Violations; penalties.-- 29 (1)(a) If the agency determines that a facility is not 30 in compliance with minimum standards or the requirements of 31 rules adopted under this part, including the failure to report 21 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 evidence of the facility's financial instability or the 2 operation of a facility without a license, the agency, as an 3 alternative to or in conjunction with an administrative action 4 against the facility and before written notification thereof, 5 shall make a reasonable attempt to discuss with the facility 6 owner or administrator each violation and recommended 7 corrective action. The agency, instead of fixing a period 8 within which the facility must enter into compliance with the 9 standards and rules, may request that the facility submit a 10 corrective action plan that demonstrates a good-faith effort 11 to remedy each violation by a specified date, subject to the 12 approval of the agency. 13 (b) Any facility owner or administrator who is found 14 to be in violation of this part, including any individual 15 operating a facility without a license, is subject to a civil 16 penalty to be imposed by the agency under this section. 17 (c) Each day during which any person violates any 18 provision of this part after the date fixed for termination of 19 the violation by applicable statute, rule, or order of the 20 agency constitutes an additional, separate, and distinct 21 violation. 22 (d) Any action taken to correct a violation must be 23 documented in writing by the administrator and verified 24 through subsequent visits by designated agency personnel. The 25 agency may impose a civil penalty under this section and, in 26 the case of an owner-operated facility, revoke a facility's 27 license when an administrator fraudulently misrepresents 28 action taken to correct a violation. 29 (e) If a facility desires to appeal any agency action 30 imposing a civil penalty under this section, it must send a 31 written request for a hearing to the agency within 15 days 22 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 after receipt by certified mail of the notice of the agency 2 action. If the civil penalty is upheld, the facility must pay 3 the fine, plus interest at the legal rate as specified in s. 4 687.01, for each day beyond the date set by the agency for 5 payment of the fine. 6 (2) In determining whether a penalty is to be imposed 7 and in fixing the amount of the penalty, if any, for a 8 violation, the agency shall consider the following factors: 9 (a) The gravity of the violation, including the 10 probability that death or serious physical or emotional harm 11 to a resident will result or has resulted, the severity of the 12 action or potential harm, and the extent to which the 13 provisions of the applicable statutes or rules were violated. 14 (b) Actions taken by the owner or administrator to 15 correct violations. 16 (c) Any previous violations. 17 (d) The financial benefit to the facility of 18 committing or continuing the violation. 19 (e) The licensed residental capacity of the facility. 20 (3) Each violation must be classified according to the 21 nature of the violation and the gravity of its probable effect 22 on the residents of the facility. The agency shall indicate 23 the classification of each violation on the face of the notice 24 of the violation, as follows: 25 (a) Class I violations are those conditions or 26 occurrences related to the operation and maintenance of a 27 facility or to the personal care of residents which the agency 28 determines present an imminent danger to the residents or 29 guests of the facility or a substantial probability that death 30 or serious physical or emotional harm will result therefrom. 31 The condition or practice constituting a class I violation 23 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 must be abated or eliminated within 24 hours, unless a 2 different fixed period, as determined by the agency, is 3 required for correction. A class I violation is subject to a 4 civil penalty of not less than $1,000 and not more than $5,000 5 for each violation. The penalty may be imposed notwithstanding 6 the correction of the violation. 7 (b) Class II violations are those conditions or 8 occurrences, other than class I violations, related to the 9 operation and maintenance of a facility or to the personal 10 care of residents which the agency determines directly 11 threaten the physical or emotional health, safety, or security 12 of the residents. A class II violation is subject to a civil 13 penalty of not less than $500 and not more than $1,000 for 14 each violation. A citation for a class II violation must 15 specify the time within which the violation must be corrected. 16 If a class II violation is corrected within the specified 17 time, a penalty may not be imposed, unless the violation is a 18 repeat offense. 19 (c) Class III violations are those conditions or 20 occurrences, other than class I or class II violations, 21 related to the operation and maintenance of a facility or to 22 the personal care of residents which the agency determines 23 indirectly or potentially threaten the physical or emotional 24 health, safety, or security of the residents. A class III 25 violation is subject to a civil penalty of not less than $100 26 and not more than $500 for each violation. A citation for a 27 class III violation must specify the time within which the 28 violation must be corrected. If a class III violation is 29 corrected within the specified time, a penalty may not be 30 imposed, unless it is a repeat offense. 31 24 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (d) Class IV violations are those conditions or 2 occurrences related to the operation and maintenance of a 3 building, or to required reports, forms, or documents, which 4 do not have the potential to negatively affect residents. 5 These violations are of a type that the agency determines do 6 not threaten the health, safety, or security of the residents 7 of the facility. A facility that does not correct a class IV 8 violation within the time limit specified in the 9 agency-approved corrective action plan is subject to a civil 10 penalty of not less than $50 and not more than $200 for each 11 violation. Any class IV violation that is corrected during the 12 survey will be identified as an agency finding and not as a 13 violation. 14 (4) The agency may impose a fine not to exceed $500 15 for each violation that cannot be classified according to 16 subsection (3). Such fines, in the aggregate, may not exceed 17 $5,000. 18 (5) The proceeds of civil penalties paid by any 19 facility under subsections (3) and (4) must be deposited into 20 the Health Care Trust Fund and expended as provided in s. 21 400.914. 22 (6) The agency shall develop and disseminate an annual 23 list of all facilities that have been sanctioned or fined in 24 excess of $500 for violations of this part, the number and 25 class of violations involved, the penalties imposed, and the 26 current status of cases. The list must be forwarded, at no 27 charge, to the division. The agency may charge a fee 28 commensurate with the cost of printing and postage to any 29 other interested party that requests a copy of this list. 30 Section 13. Section 400.916, Florida Statutes, is 31 created to read: 25 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 400.916 Rebates prohibited; penalties.-- 2 (1) It is unlawful for any facility that is licensed 3 under this part to contract or promise to pay or receive any 4 commission, bonus, kickback, or rebate or to engage in any 5 split-fee arrangement in any form whatsoever with any 6 physician, surgeon, organization, agency, or person, either 7 directly or indirectly, for residents referred to a facility 8 licensed under this part. A facility may employ or contract 9 with a person to market the facility if the designated 10 employee or contract provider clearly indicates that he or she 11 represents the facility. A person or agent independent of the 12 facility may provide placement or referral services for a fee 13 to individuals seeking assistance in finding a suitable 14 facility; however, any fee paid for placement or referral 15 services must be paid by the individual who is looking for a 16 facility, not by the facility. 17 (2) The agency, in consultation with the division, 18 shall adopt rules that impose administrative penalties for 19 acts prohibited by subsection (1). 20 Section 14. Section 400.917, Florida Statutes, is 21 created to read: 22 400.917 Certain solicitation prohibited; third-party 23 supplementation.-- 24 (1) A person may not, in connection with the 25 solicitation of contributions by or on behalf of a facility, 26 misrepresent or mislead any person, by any manner, means, 27 practice, or device whatsoever, to believe that the receipts 28 of such solicitation will be used for charitable purposes if 29 that is not the case. 30 (2) Solicitation of contributions of any kind in a 31 threatening, coercive, or unduly forceful manner by or on 26 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 behalf of a facility by any agent, employee, owner, or 2 representative of any facility is grounds for denial, 3 suspension, or revocation of the license of the facility by or 4 on behalf of which such solicitation was made. 5 (3) The admissions or maintenance of facility 6 residents whose care is supported, in whole or in part, by 7 state funds may not be conditioned upon the receipt of any 8 contribution or donation from any person. The solicitation or 9 receipt of contributions in violation of this subsection is 10 grounds for denial, suspension, or revocation of license, as 11 provided in s. 400.909, for any facility by or on behalf of 12 which such contributions were solicited. 13 (4) A facility may accept additional supplementation 14 from third parties on behalf of residents who are receiving 15 optional state supplementation in accordance with s. 409.212. 16 Section 15. Section 400.918, Florida Statutes, is 17 created to read: 18 400.918 Injunctive proceedings.-- 19 (1) The agency may institute injunctive proceedings in 20 a court of competent jurisdiction to: 21 (a) Enforce the provisions of this part or any minimum 22 standard, rule, or order issued or entered into pursuant 23 thereto when the attempt by the agency to correct a violation 24 through administrative fines has failed or when the violation 25 materially affects the health, safety, or welfare of 26 residents; or 27 (b) Terminate the operation of a facility when 28 violations of any provision of this part or of any standard or 29 rule adopted pursuant thereto exist which materially affect 30 the health, safety, or welfare of residents. 31 27 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (2) Such injunctive relief may be temporary or 2 permanent. 3 (3) The Legislature recognizes that, in some 4 instances, action is necessary to protect residents of 5 facilities from immediate, life-threatening situations. In 6 such a case, the court may allow a temporary injunction 7 without bond or proper proof being made. If it appears by 8 competent evidence or a sworn, substantiated affidavit that a 9 temporary injunction should issue, the court, pending the 10 determination on final hearing, shall enjoin operation of the 11 facility. 12 Section 16. Section 400.919, Florida Statutes, is 13 created to read: 14 400.919 Receivership proceeding.-- 15 (1) As an alternative to or in conjunction with an 16 injunctive proceeding, the agency may petition a court of 17 competent jurisdiction for the appointment of a receiver, if 18 suitable alternative placements are not available, when any of 19 the following conditions exist: 20 (a) The facility is operating without a license and 21 refuses to make application for a license as required by s. 22 400.907. 23 (b) The facility is closing or has informed the agency 24 that it intends to close, and adequate arrangements have not 25 been made for relocation of the residents within 7 days, 26 exclusive of weekends and holidays, after the closing of the 27 facility. 28 (c) The agency determines that conditions exist in the 29 facility which present an imminent danger to the health, 30 safety, or welfare of the residents or a substantial 31 28 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 probability that death or serious physical harm may result 2 therefrom. 3 (d) The facility cannot meet its financial obligation 4 to provide food, shelter, care, and utilities. 5 (2) Petitions for receivership take precedence over 6 the other court business, unless the court determines that 7 some other pending proceeding, having similar statutory 8 precedence, has priority. A hearing must be conducted within 5 9 days after the filing of the petition, at which time all 10 interested parties must be given the opportunity to present 11 evidence pertaining to the petition. The agency shall notify, 12 by certified mail, the owner or administrator of the facility 13 named in the petition and the facility residents or, if 14 applicable, the residents' representatives or designees, or 15 the residents' surrogates, guardians, or attorneys in fact, of 16 its filing, the substance of the violation, and the date and 17 place set for the hearing. The court shall grant the petition 18 only upon finding that the health, safety, or welfare of 19 residents will be threatened if a condition existing at the 20 time the petition was filed is permitted to continue. A 21 receiver may not be appointed ex parte unless the court 22 determines that one or more of the conditions in subsection 23 (1) exists; the facility owner or administrator cannot be 24 found; all reasonable means of locating the owner or 25 administrator and notifying him or her of the petition and 26 hearing have been exhausted; or the owner or administrator, 27 after notification of the hearing, chooses not to attend. 28 After such findings, the court may appoint any qualified 29 person as a receiver, except that it may not appoint any owner 30 or affiliate of the facility that is in receivership. The 31 receiver may be selected from a list of persons qualified to 29 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 act as receivers prepared by the agency and presented to the 2 court with each petition for receivership. The agency or 3 designated agency employee may be appointed as a receiver for 4 up to 60 days. The court may grant a 30-day extension upon a 5 showing of good cause. 6 (3) The receiver must make provision for the continued 7 health, safety, and welfare of all residents of the facility 8 and: 9 (a) Shall exercise those powers and perform those 10 duties set out by the court. 11 (b) Shall operate the facility in such a manner as to 12 assure safety and adequate health care for the residents. 13 (c) Shall take such actions as are reasonably 14 necessary to protect or conserve the assets or property of the 15 facility for which the receiver is appointed, or the proceeds 16 from any transfer thereof, and may use them only in the 17 performance of the powers and duties set forth in this section 18 and by order of the court. 19 (d) May use the building, fixtures, furnishings, and 20 any accompanying consumable goods in the provision of care and 21 services to residents and to any other persons who were 22 receiving services from the facility at the time the petition 23 for receivership was filed. The receiver shall collect 24 payments for all goods and services that are provided to 25 residents or others during the period of the receivership at 26 the same rate of payment charged by the owner at the time the 27 petition for receivership was filed, or at a fair and 28 reasonable rate otherwise approved by the court. 29 (e) May correct or eliminate any deficiency in the 30 structure or furnishings of the facility which endangers the 31 safety or health of residents while they remain in the 30 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 facility, if the total cost of correction does not exceed 2 $10,000. The court may order expenditures for this purpose in 3 excess of $10,000 on application from the receiver after 4 notice to the owner and a hearing. 5 (f) May let contracts and hire agents and employees to 6 carry out the powers and duties of the receiver. 7 (g) Shall honor all leases, mortgages, and secured 8 transactions governing the building in which the facility is 9 located and all goods and fixtures in the building of which 10 the receiver has taken possession, but only to the extent of 11 payments that, in the case of a rental agreement, are for the 12 use of the property during the period of the receivership, or 13 that, in the case of a purchase agreement, become due during 14 the period of the receivership. 15 (h) Shall have full power to direct and manage the 16 facility and to discharge employees of the facility, subject 17 to any contract rights they may have. The receiver shall pay 18 employees at the rate of compensation, including benefits, 19 approved by the court. A receivership does not relieve the 20 owner of any obligation to employees made before the 21 appointment of a receiver and not carried out by the receiver. 22 (i) Shall be entitled to and take possession of all 23 property or assets of residents which are in the possession of 24 a facility or its owner. The receiver shall preserve all 25 property, assets, and records of residents of which the 26 receiver takes possession and shall provide for the prompt 27 transfer of the property, assets, and records to the new 28 placement of any transferred resident. An inventory list 29 certified by the owner and receiver must be made immediately 30 at the time the receiver takes possession of the facility. 31 31 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (4)(a) A person who is served with notice of an order 2 of the court appointing a receiver and of the receiver's name 3 and address is liable to pay the receiver for any goods or 4 services provided by the receiver after the date of the order 5 if the person would have been liable for the goods or services 6 as supplied by the owner. The receiver shall give a receipt 7 for each payment and shall keep a copy of each receipt on 8 file. The receiver shall deposit accounts received in a 9 separate account and shall use this account for all 10 disbursements. 11 (b) The receiver may bring an action to enforce the 12 liability created by paragraph (a). 13 (c) A payment to the receiver of any sum owing to the 14 facility or its owner discharges any obligation to the 15 facility to the extent of the payment. 16 (5)(a) A receiver may petition the court that the 17 receiver not be required to honor any lease, mortgage, secured 18 transaction, or other wholly or partially executory contract 19 entered into by the owner if the rent, price, or rate of 20 interest required to be paid under the agreement was 21 substantially in excess of a reasonable rent, price, or rate 22 of interest at the time the contract was entered into, or if 23 any material provision of the agreement was unreasonable 24 compared to contracts negotiated under similar conditions. Any 25 relief in this form provided by the court is limited to the 26 life of the receivership, unless otherwise determined by the 27 court. 28 (b) If the receiver is in possession of real estate or 29 goods subject to a lease, mortgage, or security interest that 30 the receiver has obtained a court order to avoid under 31 paragraph (a), and if the real estate or goods are necessary 32 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 for the continued operation of the facility under this 2 section, the receiver may apply to the court to set a 3 reasonable rental, price, or rate of interest to be paid by 4 the receiver during the duration of the receivership. The 5 court shall hold a hearing on the application within 15 days. 6 The receiver shall send notice of the application to any known 7 persons who own the property involved at least 10 days before 8 the hearing. Payment by the receiver of the amount determined 9 by the court to be reasonable is a defense to any action 10 against the receiver for payment or for possession of the 11 goods or real estate subject to the lease, security interest, 12 or mortgage involved by any person who received the notice, 13 but the payment does not relieve the owner of the facility of 14 any liability for the difference between the amount paid by 15 the receiver and the amount due under the original lease, 16 security interest, or mortgage involved. 17 (6) The court shall set the compensation of the 18 receiver, which is considered a necessary expense of a 19 receivership. 20 (7) A receiver may be held liable in a personal 21 capacity only for the receiver's own gross negligence, 22 intentional acts, or breach of fiduciary duty. 23 (8) The court may require a receiver to post a bond. 24 (9) The court may direct the agency to allocate funds 25 from the Health Care Trust Fund to the receiver, subject to s. 26 400.914. 27 (10) The court may terminate a receivership when: 28 (a) The court determines that the receivership is no 29 longer necessary because the conditions that gave rise to the 30 receivership no longer exist or the agency grants the facility 31 a new license; or 33 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (b) All of the residents in the facility have been 2 transferred or discharged. 3 (11) Within 30 days after termination, the receiver 4 shall give the court a complete accounting of all property of 5 which the receiver has taken possession, all funds collected, 6 and the expenses of the receivership. 7 (12) This section does not relieve any owner, 8 administrator, or employee of a facility placed in 9 receivership of any civil or criminal liability incurred, or 10 any duty imposed by law, by reason of acts or omissions of the 11 owner, administrator, or employee before the appointment of a 12 receiver; nor does this section suspend during the 13 receivership any obligation of the owner, administrator, or 14 employee for the payment of taxes or other operating and 15 maintenance expenses of the facility or any obligation of the 16 owner, administrator, employee, or any other person for the 17 payment of mortgages or liens. The owner retains the right to 18 sell or mortgage any facility under receivership, subject to 19 the approval of the court that ordered the receivership. 20 Section 17. Section 400.920, Florida Statutes, is 21 created to read: 22 400.920 Contracts.-- 23 (1) The presence of each resident in a facility must 24 be covered by a contract, executed at the time of admission or 25 prior thereto, between the licensee and the resident or the 26 resident's designee or legal representative. Each party to the 27 contract shall be provided with a duplicate original thereof, 28 and the licensee shall keep on file in the facility all such 29 contracts. The licensee may not destroy or otherwise dispose 30 of any such contract until 5 years after its expiration or 31 34 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 such longer period as may be provided in rules adopted under 2 this part. 3 (2) Each contract shall contain express provisions 4 specifically setting forth the services and accommodations to 5 be provided by the facility; the rates or charges; provision 6 for at least 30 days' notice of a rate increase; the rights, 7 duties, and obligations of the residents, other than those 8 specified in s. 400.924; and other matters that the parties 9 consider appropriate. When money is deposited or advanced by a 10 resident in a contract as security for performance of the 11 contract agreement or as advance rent for other than the next 12 immediate rental period: 13 (a) The funds must be held in a banking institution in 14 this state. The funds must be kept separate from the funds and 15 property of the facility; must be deposited in a bank savings 16 association, trust company, or credit union located in this 17 state and, if possible, located in the same district in which 18 the facility is located; must not be represented as part of 19 the assets of the facility on financial statements; and must 20 be used, or otherwise expended, only for the account of the 21 resident. 22 (b) The licensee shall, within 30 days after receipt 23 of advance rent or a security deposit, notify the resident in 24 writing of the manner in which the licensee is holding the 25 advance rent or security deposit and state the name and 26 address of the depository where the moneys are being held. The 27 licensee shall notify residents of the facility's policy on 28 advance deposits. 29 (c) If a licensee agrees to reserve a bed for a 30 resident who is admitted to a medical facility, the resident 31 or the resident's responsible party shall notify the licensee 35 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 of any change in status which would prevent the resident from 2 returning to the facility. Until such notice is received, the 3 agreed-upon daily rate may be charged by the licensee. 4 (d) The purpose of any advance payment and a refund 5 policy for such payment, including any advance payment for 6 meals, lodging, or personal services, must be stated in the 7 contract. 8 (3) The contract must state whether or not the 9 facility is affiliated with any religious organization, the 10 name of such organization, and its general responsibility to 11 the facility. 12 (4) A contract or provision thereof may not be 13 construed to relieve any licensee of any requirement or 14 obligation imposed upon it by this part or by standards or 15 rules in force pursuant thereto. 16 (5) A lease may be substituted for the contract if it 17 meets the disclosure requirements of this section. 18 Section 18. Section 400.921, Florida Statutes, is 19 created to read: 20 400.921 Use of licensed personnel.-- 21 (1) Persons under contract to the facility, facility 22 staff, or volunteers, who are licensed according to chapter 23 464, or those persons exempt under s. 464.022(1), and others 24 as defined by rule, may administer medications to residents, 25 take residents' vital signs, manage individual weekly pill 26 organizers for residents who self-administer medication, give 27 prepackaged enemas ordered by a physician, observe residents, 28 document observations on the appropriate resident's record, 29 report observations to the resident's physician, and contract 30 or allow residents or a resident's representative, designee, 31 surrogate, guardian, or attorney-in-fact to contract with a 36 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 third party, provided that residents meet the criteria for 2 appropriate placement as defined in s. 400.922. Nursing 3 assistants certified under s. 400.211 may take residents' 4 vital signs as directed by a licensed nurse or physician. 5 (2) All staff in facilities licensed under this part 6 shall exercise their professional responsibility to observe 7 residents, to document observations on the appropriate 8 resident's record, and to report the observations to the 9 resident's physician. However, the facility owner or 10 administrator is responsible for determining that the resident 11 receiving services is appropriate for residence in the 12 facility. 13 (3) In an emergency situation, licensed personnel may 14 carry out their professional duties under chapter 464 until 15 emergency medical personnel assume responsibility for care. 16 Section 19. Section 400.922, Florida Statutes, is 17 created to read: 18 400.922 Appropriateness of placements; examination of 19 residents.-- 20 (1) The facility owner or administrator is responsible 21 for determining the appropriateness of admission of an 22 individual to the facility and for determining the continued 23 appropriateness of residence of an individual in the facility. 24 Such a determination must be based upon an assessment of the 25 strengths, needs, and preferences of the resident, the care 26 and services offered or arranged for by the facility in 27 accordance with facility policy, and any limitations in law or 28 rule related to admission criteria or continued residency for 29 the type of license held by the facility under this part. A 30 resident may not be moved from one facility to another without 31 consultation with and agreement by the resident or, if 37 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 applicable, the resident's representative or designee or the 2 resident's family, guardian, surrogate, or attorney-in-fact. 3 (2) A physician or nurse practitioner employed by or 4 under contract with a facility to provide an initial 5 examination for admission purposes may not have a financial 6 interest in the facility. 7 (3) Persons licensed under chapter 464 who are 8 employed by or under contract with a facility shall, on a 9 routine basis, or at least monthly, perform a nursing 10 assessment of the residents for whom they are providing 11 nursing services ordered by a physician, except administration 12 of medication, and shall document the assessment, including 13 any substantial change in a resident's status which may 14 necessitate relocation to a nursing home, hospital, or 15 specialized health care facility. These records must be 16 maintained in the facility for inspection by the agency and 17 must be forwarded to the resident's case manager, if 18 applicable. 19 (4) If possible, each resident must have been examined 20 by a licensed physician or a licensed nurse practitioner 21 within 60 days before admission to the facility. The signed 22 and completed medical examination report must be submitted to 23 the facility owner or administrator, who shall use the 24 information contained in the report to assist in the 25 determination of the appropriateness of the resident's 26 admission and continued stay in the facility. The medical 27 examination report is to be a permanent part of the record of 28 the resident at the facility and must be made available to the 29 agency during inspection or upon request. 30 (5) If a medical examination has not been completed 31 within 60 days before the admission of the resident, a 38 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 licensed physician or licensed nurse practitioner shall 2 examine the resident and complete a medical examination form 3 provided by the agency within 30 days following the resident's 4 admission, to enable the facility owner or administrator to 5 determine the appropriateness of the admission. The medical 6 examination form is to become a permanent part of the record 7 of the resident at the facility and must be made available to 8 the agency during inspection or upon request. 9 (6) If, at any time after admission, a resident 10 appears to need care beyond that which the facility is 11 licensed to provide, the agency shall require the resident to 12 be physically examined by a licensed physician or licensed 13 nurse practitioner or evaluated by an appropriate mental 14 health professional, as defined in s. 394.455(2); such an 15 examination must, to the extent possible, be performed by the 16 resident's preferred physician or nurse practitioner or mental 17 health professional and must be paid for by the source that is 18 funding the resident's stay at the facility. A facility may 19 not retain any resident who requires more services or care 20 than the facility is able to provide in accordance with its 21 policies and criteria for admission and continued residency. 22 Any resident who is determined by such a professional 23 examination to be inappropriately residing in a facility shall 24 be given 30 days' written notice to relocate by the facility 25 owner or administrator, unless the resident's continued 26 residence in the facility presents an imminent danger to the 27 health, safety, or welfare of the resident or a substantial 28 probability exists that death or serious physical harm could 29 result to the resident if he or she were allowed to remain in 30 the facility. 31 39 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (7) A resident who requires 24-hour nursing 2 supervision may not be retained in a facility licensed under 3 this part. 4 Section 20. Section 400.923, Florida Statutes, is 5 created to read: 6 400.923 Property and personal affairs of residents; 7 penalty.-- 8 (1)(a) A resident shall be given the option of using 9 his or her own belongings, as space permits; choosing a 10 roommate; and, whenever possible, unless the resident is 11 adjudicated incompetent or incapacitated under state law, 12 managing his or her own affairs. 13 (b) The admission of a resident to a facility and the 14 resident's presence therein does not confer on the facility or 15 on its owner, administrator, employees, or representatives any 16 authority to manage, use, or dispose of any property of the 17 resident; nor does such admission or presence confer on any of 18 those persons any authority or responsibility for the personal 19 affairs of the resident, except that which may be necessary 20 for the safe management of the facility or for the safety of 21 the resident. 22 (2) A facility, or an owner, administrator, employee, 23 or representative thereof, may not act as the guardian, 24 trustee, or conservator for any resident or for any of the 25 resident's property. 26 (3) A facility, upon mutual consent with the resident, 27 shall provide for the safekeeping in the facility of personal 28 effects not in excess of $500 and funds of the resident not in 29 excess of $200 cash. A facility shall keep complete and 30 accurate records of all such funds and personal effects 31 received for safekeeping. When a resident is absent from a 40 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 facility for 24 hours or more, the facility may provide for 2 the safekeeping of the resident's personal effects in excess 3 of $500. 4 (4) Any personal funds available to residents may be 5 used by residents as they choose to obtain clothing, personal 6 items, leisure activities, and other supplies and services for 7 their personal use. A facility may not demand, require, or 8 contract for payment of all or any part of the personal funds 9 in satisfaction of the facility rate for supplies and services 10 beyond that amount agreed to in writing and may not levy an 11 additional charge to the resident or the account for any 12 supplies or services that the facility has agreed by contract 13 to provide as part of the standard monthly rate. Any 14 supplemental service or supplies provided by the facility 15 which are charged separately to the resident or the account 16 may be provided only with the resident's specific advance 17 approval. An itemized written approval statement must be 18 attached to the contract setting forth the charges for the 19 services or supplies. 20 (5) In addition to any damages or civil penalties to 21 which a person is subject, any person who: 22 (a) Intentionally withholds a resident's personal 23 funds or personal property, or who demands, beneficially 24 receives, or contracts for payment of all or any part of a 25 resident's personal property in satisfaction of the facility 26 rate for supplies and services; or 27 (b) Borrows from or pledges any personal funds of a 28 resident, other than the amount agreed to by written contract 29 under s. 400.920, 30 31 41 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 commits a misdemeanor of the first degree, punishable as 2 provided in s. 775.082 or s. 775.083. 3 (6) When a resident dies, a licensee must return all 4 refunds, funds, and property to the resident's spouse or adult 5 next of kin named in a beneficiary designation form provided 6 by the facility to the resident. If the resident has no spouse 7 or adult next of kin, or such person cannot be located, funds 8 that are due the resident must be placed in an 9 interest-bearing account and must be safeguarded until such 10 time as the funds and property are disbursed pursuant to the 11 Florida Probate Code. The funds shall be kept separate from 12 the funds and property of the facility and of other residents 13 of the facility. If the funds of the deceased resident are not 14 disbursed pursuant to the Florida Probate Code within 2 years 15 after the resident's death, the funds must be deposited in the 16 Health Care Trust Fund as provided in s. 400.914. 17 Section 21. Section 400.924, Florida Statutes, is 18 created to read: 19 400.924 Resident bill of rights.-- 20 (1) A resident of a facility shall not be deprived of 21 any civil or legal rights, benefits, or privileges guaranteed 22 by law, the State Constitution, or the United States 23 Constitution as a resident of a facility. Every resident of a 24 facility has the right to: 25 (a) Live in a safe and decent living environment, free 26 from abuse and neglect. 27 (b) Be treated with consideration and respect and with 28 due recognition of personal dignity, individuality, and the 29 need for privacy. 30 (c) Retain and use his or her own clothes and other 31 personal property in his or her immediate living quarters, so 42 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 as to maintain individuality and personal dignity, except when 2 the facility can demonstrate that this would be unsafe, 3 impracticable, or an infringement upon the rights of other 4 residents. 5 (d) Unrestricted private communication, including 6 receiving and sending unopened correspondence, access to a 7 telephone, and visiting with any person of his or her choice, 8 at any time between the hours of 9 a.m. and 9 p.m. at a 9 minimum. Upon request, the facility shall make provisions to 10 extend visiting hours for caregivers and out-of-town guests. 11 (e) Freedom to participate in and benefit from 12 community services and activities and to achieve the highest 13 possible level of independence, autonomy, and interaction 14 within the community. 15 (f) Manage his or her financial affairs. 16 (g) Reasonable opportunity for regular exercise 17 several times a week and to be outdoors at regular and 18 frequent intervals, except when prevented by inclement 19 weather. 20 (h) Exercise civil and religious liberties, including 21 the right to make independent personal decisions. A religious 22 beliefs or practices, or any attendance at religious services, 23 may not be imposed upon any resident. 24 (i) Access to adequate and appropriate health care 25 consistent with established and recognized standards within 26 the community. 27 (j) At least 30 days' notice of relocation or 28 termination of residency from the facility, unless, for 29 medical reasons, the resident is certified by a physician to 30 require emergency relocation to a facility that provides a 31 more skilled level of care or unless the resident engages in a 43 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 pattern of conduct that is harmful or offensive to other 2 residents. In the case of a resident who has been adjudicated 3 mentally incapacitated, the guardian shall be given at least 4 30 days' notice of a nonemergency relocation or residency 5 termination. Reasons for relocation must be set forth in 6 writing. To terminate the residency of an individual without 7 the notice required in this paragraph, the facility must show 8 good cause in a court of competent jurisdiction. 9 (k) Present grievances and recommend changes in 10 policies, procedures, and services to the staff of the 11 facility, governing officials, or any other person without 12 restraint, interference, coercion, discrimination, or 13 reprisal. Each facility shall establish a grievance procedure 14 to facilitate the resident's exercise of this right. This 15 right includes access to volunteers and advocates and the 16 right to be a member of, to be active in, and to associate 17 with advocacy or special interest groups. 18 (2) The administrator of a facility shall ensure that 19 a written notice of the rights, obligations, and prohibitions 20 set forth in this part is posted in a prominent place in each 21 facility and read or explained to residents who cannot read. 22 This notice must include the name, address, and telephone 23 numbers of the central abuse registry, the Advocacy Center for 24 Persons with Disabilities, Inc., and the district human rights 25 advocacy committee, where complaints may be lodged. The 26 facility must ensure a resident's access to a telephone to 27 call the central abuse registry, the Advocacy Center for 28 Persons with Disabilities, Inc., and the district human rights 29 advocacy committee. 30 (3) The facility shall not hinder or prevent residents 31 from exercising their rights as specified in this section. 44 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (4) A facility or employee of a facility may not serve 2 notice upon a resident to leave the premises or take any other 3 retaliatory action against any person who: 4 (a) Exercises any right set forth in this section. 5 (b) Appears as witness in any hearing, inside or 6 outside the facility. 7 (c) Files a civil action alleging a violation of this 8 part or notifies a state attorney or the Attorney General of a 9 possible violation. 10 11 Any facility that terminates the residency of an individual 12 who participates in any of the activities specified in this 13 subsection shall show good cause in a court of competent 14 jurisdiction. 15 (5) Any person who submits or reports a complaint 16 concerning a suspected violation of this part or concerning 17 services and conditions in a facility, or who testifies in any 18 administrative or judicial proceeding arising from such a 19 complaint, is immune from any civil or criminal liability 20 therefor, unless the person has acted in bad faith or with 21 malicious purpose or the court finds that there was a complete 22 absence of a justiciable issue of either law or fact raised by 23 the losing party. 24 Section 22. Section 400.925, Florida Statutes, is 25 created to read: 26 400.925 Civil actions to enforce rights.--Any person 27 or resident whose rights as specified in this part are 28 violated has a cause of action against any facility owner, 29 administrator, or staff responsible for the violation. The 30 action may be brought by the resident or the resident's 31 guardian, or by a person or organization acting on behalf of a 45 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 resident with the consent of the resident or the resident's 2 guardian, or by the personal representative of the estate of a 3 deceased resident when the cause of death resulted from a 4 violation of the decedent's rights, to enforce such rights. 5 The action may be brought in any court of competent 6 jurisdiction to enforce such rights and to recover actual 7 damages, and punitive damages when malicious, wanton, or 8 willful disregard of the rights of others can be shown. Any 9 plaintiff who prevails in any such action is entitled to 10 recover reasonable attorney's fees, costs of the action, and 11 damages, unless the court finds that the plaintiff has acted 12 in bad faith or with malicious purpose or that there was a 13 complete absence of a justiciable issue of either law or fact. 14 A prevailing defendant may be entitled to recover reasonable 15 attorney's fees under s. 57.105. The remedies provided in this 16 section are in addition to and cumulative with other legal and 17 administrative remedies available to a resident or to the 18 agency. 19 Section 23. Section 400.926, Florida Statutes, is 20 created to read: 21 400.926 Right of entry and inspection.--Any designated 22 officer or employee of the agency, or the state or local fire 23 marshal, may enter unannounced upon and into the premises of 24 any facility licensed under this part in order to determine 25 the state of compliance with this part and the rules or 26 standards in force under this part. The right of entry and 27 inspection also extends to any premises that the agency has 28 reason to believe are being operated or maintained as a 29 facility without a license; but such an entry or inspection 30 may not be made without the permission of the owner or person 31 in charge thereof unless a warrant is first obtained from the 46 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 circuit court authorizing such entry. The warrant requirement 2 extends only to a facility that the agency has reason to 3 believe is being operated or maintained as a facility without 4 a license. Any application for a license or renewal thereof 5 which is made under this part constitutes permission for, and 6 complete acquiescence in, any entry or inspection of the 7 premises for which the license is sought, in order to 8 facilitate verification of the information submitted on or in 9 connection with the application; to discover, investigate, and 10 determine the existence of abuse or neglect; or to elicit, 11 receive, respond to, and resolve complaints. Any current valid 12 license constitutes unconditional permission for, and complete 13 acquiescence in, any entry or inspection of the premises by 14 authorized personnel. The agency retains the right of entry 15 and inspection of facilities that have had a license revoked 16 or suspended within the previous 24 months, to ensure that the 17 facility is not operating unlawfully. However, before entering 18 the facility, a statement of probable cause must be filed with 19 the director of the agency, who must approve or disapprove the 20 action within 48 hours. Probable cause includes, but is not 21 limited to, evidence that the facility holds itself out to the 22 public as a provider of personal assistance services or the 23 receipt of a complaint by the advisory council on brain and 24 spinal cord injuries about the facility. 25 Section 24. Section 400.927, Florida Statutes, is 26 created to read: 27 400.927 Closing of facility; notice; penalty.-- 28 (1) When a facility voluntarily discontinues 29 operation, it must inform the agency in writing at least 90 30 days before discontinuing the operation. The facility must 31 also inform each resident, next of kin, or legal 47 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 representative of the fact and the proposed time of the 2 discontinuance, following the notification requirements 3 provided in s. 400.924(1)(j). If a resident has no person to 4 represent him or her, the facility is responsible for referral 5 of that resident to an appropriate social service agency for 6 placement. 7 (2) All charges must be prorated as of the date on 8 which the facility discontinues operation, and if any payments 9 have been made in advance, the payments for services not 10 received must be refunded to the resident's guardian within 10 11 working days after voluntary or involuntary closure of the 12 facility, whether or not such a refund is requested by the 13 resident or guardian. 14 (3) Immediately upon discontinuance of the operation 15 of a facility, the owner shall surrender the license therefor 16 to the agency, and the license shall be canceled. 17 (4) The agency may levy a fine in an amount not to 18 exceed $10,000 upon each person or business entity that owns 19 any interest in a facility that terminates operation without 20 providing notice to the agency and the facility's residents at 21 least 30 days before operation is discontinued. This fine must 22 not be levied against any facility that is involuntarily 23 closed at the initiation of the agency. The agency shall use 24 the proceeds of the fines to operate the facility until all 25 residents are relocated and shall deposit any balance of the 26 proceeds into the Health Care Trust Fund established under s. 27 400.914. 28 Section 25. Section 400.928, Florida Statutes, is 29 created to read: 30 400.928 Rules establishing standards.-- 31 48 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (1) Pursuant to the intention of the Legislature to 2 provide safe and sanitary facilities, rules to implement this 3 part must include reasonable and fair minimum standards in 4 relation to: 5 (a) The maintenance of facilities, not in conflict 6 with the provisions of chapter 553, relating to plumbing, 7 heating, lighting, ventilation, and other housing conditions, 8 to ensure the health, safety, and comfort of residents and 9 protection from fire hazard, including adequate provisions for 10 fire alarm and other fire protection suitable to the size of 11 the structure. Uniform fire safety standards must be 12 established and enforced by the State Fire Marshal in 13 cooperation with the agency and the division. Facilities that 14 are fully equipped with sprinklers and in compliance with 15 other fire safety standards need not conduct more than one of 16 the required fire drills between the hours of 11 p.m. and 7 17 a.m., per year. In lieu of the remaining drills, staff 18 responsible for residents during such hours shall participate 19 in a mock drill that includes a review of evacuation 20 procedures. The agency shall not duplicate fire inspections 21 performed by state or local fire marshals. Such standards must 22 be included or referenced in the rules adopted by the 23 department after consultation with the State Fire Marshal. 24 Pursuant to s. 633.022(1)(b), the State Fire Marshal is the 25 final administrative authority for fire safety standards 26 established and enforced under this section. 27 (b) The preparation and annual update of a 28 comprehensive emergency management plan. Such standards must 29 be included in the rules adopted by the department after 30 consultation with the Department of Community Affairs. At a 31 minimum, the rules must provide for plan components that 49 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 address emergency evacuation; transportation; adequate 2 sheltering arrangements; postdisaster activities, including 3 emergency power, food, and water; postdisaster transportation; 4 supplies; staffing; emergency equipment; individual 5 identification of residents and transfer of records; 6 communicating with families; and responding to family 7 inquiries. The comprehensive emergency management plan is 8 subject to review and approval by the local emergency 9 management agency. During its review, the local emergency 10 management agency shall ensure that the following agencies, at 11 a minimum, are given the opportunity to review the plan: the 12 agency, the division, and the Department of Community Affairs. 13 Also, appropriate volunteer organizations must be given the 14 opportunity to review the plan. The local emergency management 15 agency shall complete its review within 60 days and either 16 approve the plan or advise the facility of necessary 17 revisions. 18 (c) The number and qualifications of all personnel who 19 have responsibility for the care of residents. The rules must 20 require adequate staff to provide for the safety of all 21 residents. 22 (2) A representative of the agency shall conduct 23 unannounced inspections of facilities licensed under this part 24 to determine compliance with the provisions of this part. 25 (a) The number of these inspections conducted annually 26 must be equal to the number of licensed facilities. 27 (b) Facilities must be selected for inspection through 28 a random process. 29 (c) A report of the findings of these inspections must 30 be forwarded to the division. 31 50 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (d) Findings of substantial noncompliance with this 2 part and with rules adopted under this part necessitate that 3 an additional review be conducted under s. 413.605. 4 (e) Reports resulting from reviews or inspections 5 constitute a basis for administrative action against the 6 licensee by the agency. However, this section is not a 7 limitation upon the power of the agency to take action to 8 enforce this part and the rules adopted under this part. 9 (3) The department shall impose a fee upon any person 10 who requests a copy of this part or rules adopted under this 11 part. The fee must not exceed the actual cost of duplication 12 and postage. 13 Section 26. Section 400.929, Florida Statutes, is 14 created to read: 15 400.929 Maintenance of records; reports.-- 16 (1) Each facility shall maintain, as public 17 information available for public inspection under such 18 conditions as the agency prescribes, records containing copies 19 of all inspection reports pertaining to the facility that have 20 been issued by the agency to the facility. Copies of 21 inspection reports must be retained in the records for 5 years 22 from the date the reports are filed or issued. 23 (2) Each facility shall post a copy of the last 24 inspection report of the agency, including any report 25 resulting from an additional review performed under s. 413.605 26 for that facility, in a prominent location within the facility 27 so that the report is accessible to all residents and to the 28 public. Upon request, the facility shall also provide a copy 29 of the report to any resident of the facility or to an 30 applicant for admission to the facility. 31 51 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 Section 27. Subsection (4) of section 413.605, Florida 2 Statutes, is amended to read: 3 413.605 Advisory council on brain and spinal cord 4 injuries.-- 5 (4) The council shall: 6 (a) Provide advice and expertise to the division in 7 the preparation, implementation, and periodic review of the 8 brain and spinal cord injury program as referenced in s. 9 413.49. 10 (b) Annually appoint a five-member committee composed 11 of one person who has a brain injury or has a family member 12 with a brain injury, one person who has a spinal cord injury 13 or has a family member with a spinal cord injury, and three 14 members who shall be chosen from among these representative 15 groups: physicians, other allied health professionals, 16 administrators of brain and spinal cord injury programs, and 17 representatives from support groups with expertise in areas 18 related to the rehabilitation of persons who have brain or 19 spinal cord injuries, except that one and only one member of 20 the committee shall be an administrator of a transitional 21 living facility as defined in s. 400.906. Membership on the 22 council is not a prerequisite for membership on this 23 committee. 24 1. The committee shall perform onsite visits to those 25 transitional living facilities identified by the Agency for 26 Health Care Administration as being in possible violation of 27 the statutes and rules regulating such facilities. The 28 committee members have the same rights of entry and inspection 29 granted under s. 400.926 to designated representatives of the 30 agency. 31 52 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 2. Factual findings of the committee resulting from an 2 onsite investigation of a facility pursuant to subparagraph 1. 3 shall be adopted by the agency in developing its 4 administrative response regarding enforcement of statutes and 5 rules regulating the operation of the facility. 6 3. Onsite investigations by the committee shall be 7 funded by the Health Care Trust Fund. 8 4. Travel expenses for committee members shall be 9 reimbursed in accordance with s. 112.061. Members of the 10 committee shall recuse themselves from participating in any 11 investigation that would create a conflict of interest under 12 state law, and the council shall replace the member, either 13 temporarily or permanently. 14 Section 28. Section 413.273, Florida Statutes, is 15 amended to read: 16 413.273 Per diem, travel expenses, personal care 17 attendants, and accommodations interpreters for council 18 members; conflicts of interest; removal.-- 19 (1) Members of any council established under this part 20 are entitled to per diem and travel expenses for all 21 activities required by the attendance at council meetings in 22 accordance with the provisions of s. 112.061. Reasonable 23 expenses for accommodations such as personal care attendants 24 and interpreters needed by members because of their 25 disabilities during all activities required by the attendance 26 at council must meetings shall be reimbursed, or the 27 accommodations must be provided by the division. A No member 28 may not shall receive any compensation for the performance of 29 duties specified in, or arising out of, her or his duties as a 30 council member under this part except as otherwise specified 31 in this part. 53 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 (2) A No member of a any council established under 2 this part may not shall cast a vote on any matter that would 3 provide direct financial benefit to the member or create a 4 conflict of interest under state law. 5 (3) Members of any council established under this part 6 may be removed from office by the appointing authority for 7 malfeasance, misfeasance, neglect of duty, incompetence, or 8 permanent inability to perform official duties or for pleading 9 nolo contendere to, or being found guilty of, a crime. 10 Malfeasance includes shall include, but is not limited to, 11 violation of any specific prohibitions within this part. 12 Section 29. Subsection (1) of section 413.395, Florida 13 Statutes, is amended, and subsection (13) is added to that 14 section, to read: 15 413.395 Florida Independent Living Council.-- 16 (1) There is created the Florida Independent Living 17 Council to assist the division and the Division of Blind 18 Services of the Department of Labor and Employment Security, 19 as well as other state agencies and local planning and 20 administrative entities assisted under Title VII of the act, 21 in the expansion and development of statewide independent 22 living policies, programs, and concepts and to recommend 23 improvements for such programs and services. To ensure 24 consistency with the provisions of the act, as amended, The 25 Florida Independent Living council shall function 26 independently of the division and is shall be assigned to the 27 division for administrative purposes only. The council may 28 elect to be incorporated as a Florida not-for-profit 29 corporation and, upon such election, shall be incorporated by 30 the division for the purposes stated in this section. The 31 54 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 council's appointed members constitute the board of directors 2 for the corporation. 3 (13) In addition to those travel expenses and other 4 expenses covered by s. 413.273(1), and consistent with the 5 procedures therein, the council may reimburse members for 6 child care expenses incurred as a result of activities 7 required by the council. The council may pay reasonable 8 compensation to a member of the council if the member is not 9 employed or must forfeit wages from other employment for each 10 day the member is engaged in performing the duties of the 11 council. 12 Section 30. Subsection (11) of section 413.405, 13 Florida Statutes, is amended to read: 14 413.405 Rehabilitation Advisory Council.--There is 15 created the Rehabilitation Advisory Council to assist the 16 division in the planning and development of statewide 17 rehabilitation programs and services, to recommend 18 improvements to such programs and services, and to perform the 19 functions listed in this section. 20 (11) In addition to those travel expenses and other 21 expenses covered by s. 413.273(1), and consistent with the 22 procedures therein, the council may shall reimburse members of 23 the council for reasonable and necessary expenses of attending 24 council meetings and performing council duties, including 25 child care expenses incurred as a result of activities 26 required by the council and personal assistance services, as 27 provided in and subject to the requirements of s. 112.061. 28 The council may pay reasonable compensation to a member of the 29 council if the such member is not employed or must forfeit 30 wages from other employment for each day the member is engaged 31 in performing the duties of the council. 55 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 1998 SB 188 10-129-98 1 Section 31. Section 400.805, Florida Statutes, is 2 repealed. 3 Section 32. This act shall take effect October 1, 4 1998. 5 6 ***************************************** 7 LEGISLATIVE SUMMARY 8 Provides for licensure and regulation of transitional living facilities for brain-injured and 9 spinal-cord-injured persons. Provides for services to and rights of persons residing in such facilities. Specifies 10 respective powers and duties of the Agency for Health Care Administration and the Division of Vocational 11 Rehabilitation of the Department of Labor and Employment Security with respect to such facilities and residents. 12 Also provides for reimbursement of certain expenses for members of division advisory councils. (See bill for 13 details.) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 56