Senate Bill 1960c1
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Florida Senate - 1998 CS for SB 1960
By the Committee on Children, Families and Seniors and Senator
Rossin
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1 A bill to be entitled
2 An act relating to assisted living facilities
3 and adult family-care homes; amending s.
4 400.402, F.S.; revising definitions; amending
5 s. 400.404, F.S.; providing additional
6 exemptions from licensure as an assisted living
7 facility; amending ss. 400.407, 400.408, F.S.;
8 reorganizing and revising provisions relating
9 to unlawful facilities; providing penalties;
10 requiring report of unlicensed facilities;
11 providing for disciplinary actions; revising
12 provisions relating to referral to unlicensed
13 facilities; providing for certain notice to
14 service providers; amending s. 400.411, F.S.;
15 revising requirements for an initial
16 application for license; providing for a fee;
17 amending s. 400.414, F.S.; revising authority
18 and grounds for denial, revocation, or
19 suspension of licenses or imposition of
20 administrative fines; specifying terms for
21 review of proceedings challenging
22 administrative actions; amending s. 400.415,
23 F.S.; requiring a facility to post notice of a
24 moratorium on admissions; providing for rules
25 establishing grounds for imposition of a
26 moratorium; amending s. 400.417, F.S.;
27 providing for coordinated expiration of a
28 facility's license; revising requirements for
29 license renewal; providing for rules; amending
30 s. 400.4174, F.S.; amending an outdated
31 reference to child abuse or neglect; amending
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1 s. 400.4176, F.S.; revising time requirement
2 for notice of change of administrator; amending
3 ss. 400.418, 400.422, 400.452, 408.036, F.S.,
4 relating to the disposition of fees and fines,
5 receivership proceedings, staff training and
6 education, and the review of certain projects;
7 conforming cross-references to changes made by
8 the act; amending s. 400.419, F.S.; revising
9 procedures relating to violations and
10 penalties; increasing administrative fines for
11 specified classes of violations; providing
12 fines for unlicensed operation of a facility
13 and for failure to apply for a change of
14 ownership license; authorizing a survey fee to
15 cover the cost of certain complaint
16 investigations; providing for corrective action
17 plans to correct violations; expanding
18 dissemination of information regarding
19 facilities sanctioned or fined; amending s.
20 400.4195, F.S., relating to prohibitions and
21 rebates; creating s. 400.4256, F.S., relating
22 to assistance with the self-administration of
23 medication; amending s. 400.428, F.S.;
24 providing for surveys to determine compliance
25 with facility standards and residents' rights;
26 amending s. 400.474, F.S.; providing for
27 disciplinary action against a home health
28 agency or employee who knowingly provides
29 services in an unlicensed assisted living
30 facility or adult family-care home; amending s.
31 400.618, F.S.; revising the definition of the
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1 term "adult-family care home"; amending s.
2 394.4574, F.S.; requiring district
3 administrators of the Department of Children
4 and Family Services to develop plans to ensure
5 the provision of mental health and substance
6 abuse treatment services to residents of
7 assisted living facilities that hold a limited
8 mental health license; providing an effective
9 date.
10
11 Be It Enacted by the Legislature of the State of Florida:
12
13 Section 1. Section 400.402, Florida Statutes, is
14 amended to read:
15 400.402 Definitions.--When used in this part, unless
16 the context otherwise requires, the term:
17 (1) "Activities of daily living" means functions and
18 tasks for self-care, including ambulation, bathing, dressing,
19 eating, grooming, and toileting, and other similar tasks.
20 (2) "Administrator" means an individual at least 21
21 years of age who is responsible for the operation and
22 maintenance who has general administrative charge of an
23 assisted living facility.
24 (3) "Assisted living facility," hereinafter referred
25 to as "facility," means any building or buildings, section of
26 a building, or distinct part of a building, residence, private
27 home, boarding home, home for the aged, or other place,
28 whether operated for profit or not, which undertakes through
29 its ownership or management to provide, for a period exceeding
30 24 hours, housing, food service, and one or more personal
31 services for four or more adults, not related to the owner or
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1 administrator by blood or marriage, who require such services;
2 or to provide extended congregate care, limited nursing
3 services, or limited mental health services, when specifically
4 licensed to do so pursuant to s. 400.407, unless the facility
5 is licensed as an adult family-care home. A facility offering
6 personal services, extended congregate care, limited nursing
7 services, or limited mental health services for fewer than
8 four adults is within the meaning of this definition if it
9 formally or informally advertises to or solicits the public
10 for residents or referrals and holds itself out to the public
11 to be an establishment which regularly provides such services,
12 unless the facility is licensed as an adult family-care home.
13 (3)(4) "Agency" means the Agency for Health Care
14 Administration.
15 (4)(5) "Aging in place" or "age in place" means the
16 process of providing increased or adjusted services to a
17 person to compensate for by which a person chooses to remain
18 in a residential environment despite the physical or mental
19 decline that may occur with the aging process, in order to
20 maximize. For aging in place to occur, needed services are
21 added, increased, or adjusted to compensate for the physical
22 or mental decline of the individual, while maximizing the
23 person's dignity and independence and permit them to remain in
24 a familiar, noninstitutional, residential environment for as
25 long as possible. Such services may be provided by facility
26 staff, volunteers, family, or friends, or through contractual
27 arrangements with a third party.
28 (5)(6) "Applicant" means an individual owner,
29 corporation, partnership, firm, association, or governmental
30 entity that applies any facility owner, or if a business
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1 entity, a person appointed by such entity to make application
2 for a license.
3 (7) "Assistance with activities of daily living" means
4 direct physical assistance with activities of daily living as
5 defined in subsection (1).
6 (6) "Assisted living facility" means any building or
7 buildings, section or distinct part of a building, private
8 home, boarding home, home for the aged, or other residential
9 facility, whether operated for profit or not, which undertakes
10 through its ownership or management to provide housing, meals,
11 and one or more personal services for a period exceeding 24
12 hours to one or more adults who are not relatives of the owner
13 or administrator.
14 (7)(8) "Chemical restraint" means a pharmacologic drug
15 that physically limits, restricts, or deprives an individual
16 of movement or mobility, and is used for discipline or
17 convenience and not required for the treatment of medical
18 symptoms.
19 (8)(9) "Community living support plan" means a written
20 document prepared by a mental health resident and the
21 resident's mental health case manager of that resident in
22 consultation with the administrator of an assisted living the
23 facility with a limited mental health license or the
24 administrator's designee. A copy must be provided to the
25 administrator. The plan must include information about the
26 supports, services, and special needs of the resident which
27 enable the resident to live in the assisted living facility
28 and a method by which facility staff can recognize and respond
29 to the signs and symptoms particular to that resident which
30 indicate the need for professional services.
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1 (9)(10) "Cooperative agreement" means a written
2 statement of understanding between a mental health care
3 services provider and the administrator of the assisted living
4 facility with a limited mental health license in which a
5 mental health resident is living. The agreement must specify
6 specifies directions for accessing emergency and after-hours
7 care for the mental health resident and a method by which the
8 staff of the facility can recognize and respond to the signs
9 and symptoms particular to that mental health resident that
10 indicate the need for professional services. The cooperative
11 agreement may be a component of the community living support
12 plan. A single cooperative agreement may service all mental
13 health residents who are clients of the same mental health
14 care provider.
15 (10)(11) "Department" means the Department of Elderly
16 Affairs.
17 (11)(12) "Emergency" means a situation, physical
18 condition, or method of operation which presents imminent
19 danger of death or serious physical or mental harm to facility
20 residents.
21 (12)(13) "Extended congregate care" means acts beyond
22 those authorized in subsection (17) (16) that may be performed
23 pursuant to chapter 464 by persons licensed thereunder while
24 carrying out their professional duties, and other supportive
25 services which may be specified by rule. The purpose of such
26 services is to enable residents to age in place in a
27 residential environment despite mental or physical limitations
28 that might otherwise disqualify them from residency in a
29 facility licensed under this part.
30 (13)(14) "Guardian" means a person to whom the law has
31 entrusted the custody and control of the person or property,
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1 or both, of a person who has been legally adjudged
2 incapacitated.
3 (14)(15) "Limited nursing services" means acts that
4 may be performed pursuant to chapter 464 by persons licensed
5 thereunder while carrying out their professional duties but
6 limited to those acts which the department specifies by rule.
7 Acts which may be specified by rule as allowable limited
8 nursing services shall be for persons who meet the admission
9 criteria established by the department for assisted living
10 facilities and shall not be complex enough to require 24-hour
11 nursing supervision and may include such services as the
12 application and care of routine dressings, and care of casts,
13 braces, and splints.
14 (15)(16) "Managed risk" means the process by which the
15 facility staff discuss the service plan and the needs of the
16 resident with the resident and, if applicable, the resident's
17 representative or designee or the resident's surrogate,
18 guardian, or attorney in fact, in such a way that the
19 consequences of a decision, including any inherent risk, are
20 explained to all parties and reviewed periodically in
21 conjunction with the service plan, taking into account changes
22 in the resident's status and the ability of the facility to
23 respond accordingly.
24 (16)(17) "Mental health resident" means an individual
25 who receives social security disability income due to a mental
26 disorder as determined by the Social Security Administration
27 or receives supplemental security income due to a mental
28 disorder as determined by the Social Security Administration
29 and receives optional state supplementation.
30 (17)(18) "Personal services" means direct physical
31 include, but are not limited to, such services as: individual
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1 assistance with or supervision of the essential activities of
2 daily living and the self-administration of medication as
3 defined in subsection (1), and other similar services which
4 the department may define by rule. "Personal services" shall
5 not be construed to mean the provision of medical, nursing,
6 dental, or mental health services by the staff of a facility,
7 except as provided in this part. In addition, an emergency
8 response device installed in the apartment or living area of a
9 resident shall not be classified as a personal service.
10 (18)(19) "Physical restraint" means a device which
11 physically limits, restricts, or deprives an individual of
12 movement or mobility, including, but not limited to, a
13 half-bed rail, a full-bed rail, a geriatric chair, and a posey
14 restraint. The term "physical restraint" shall also include
15 any device which was not specifically manufactured as a
16 restraint but which has been altered, arranged, or otherwise
17 used for this purpose. The term shall not include bandage
18 material used for the purpose of binding a wound or injury.
19 (19) "Relative" means an individual who is the father,
20 mother, stepfather, stepmother, son, daughter, brother,
21 sister, grandmother, grandfather, great-grandmother,
22 great-grandfather, grandson, granddaughter, uncle, aunt, first
23 cousin, nephew, niece, husband, wife, father-in-law,
24 mother-in-law, son-in-law, daughter-in-law, brother-in-law,
25 sister-in-law, stepson, stepdaughter, stepbrother, stepsister,
26 half-brother, or half-sister of an owner or administrator.
27 (20) "Resident" means a person 18 years of age or
28 older, residing in and receiving care from a facility.
29 (21) "Resident's representative or designee" means a
30 person other than the owner, or an agent or employee of the
31 facility, designated in writing by the resident, if legally
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1 competent, to receive notice of changes in the contract
2 executed pursuant to s. 400.424; to receive notice of and to
3 participate in meetings between the resident and the facility
4 owner, administrator, or staff concerning the rights of the
5 resident; to assist the resident in contacting the ombudsman
6 council if the resident has a complaint against the facility;
7 or to bring legal action on behalf of the resident pursuant to
8 s. 400.429.
9 (22) "Service plan" means a written plan, developed
10 and agreed upon by the resident and, if applicable, the
11 resident's representative or designee or the resident's
12 surrogate, guardian, or attorney in fact, if any, and the
13 administrator or designee representing the facility, which
14 addresses the unique physical and psychosocial needs,
15 abilities, and personal preferences of each resident receiving
16 extended congregate care services. The plan shall include a
17 brief written description, in easily understood language, of
18 what services shall be provided, who shall provide the
19 services, when the services shall be rendered, and the
20 purposes and benefits of the services.
21 (23) "Shared responsibility" means exploring the
22 options available to a resident within a facility and the
23 risks involved with each option when making decisions
24 pertaining to the resident's abilities, preferences, and
25 service needs, thereby enabling the resident and, if
26 applicable, the resident's representative or designee, or the
27 resident's surrogate, guardian, or attorney in fact, and the
28 facility to develop a service plan which best meets the
29 resident's needs and seeks to improve the resident's quality
30 of life.
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1 (24) "Supervision of activities of daily living" means
2 reminding residents to engage in activities of daily living
3 and the self-administration of medication, and, when
4 necessary, observing or providing verbal cuing to residents
5 while they perform these activities.
6 (25) "Supervision of self-administered medication"
7 means reminding residents to take medication, opening bottle
8 caps for residents, opening prepackaged medication for
9 residents, reading the medication label to residents,
10 observing residents while they take medication, checking the
11 self-administered dosage against the label of the container,
12 reassuring residents that they have obtained and are taking
13 the dosage as prescribed, keeping daily records of when
14 residents receive supervision pursuant to this subsection, and
15 immediately reporting noticeable changes in the condition of a
16 resident to the resident's physician and the resident's case
17 manager, if one exists. Residents who are capable of
18 administering their own medication shall be allowed to do so.
19 (25)(26) "Supplemental security income," Title XVI of
20 the Social Security Act, means a program through which the
21 Federal Government guarantees a minimum monthly income to
22 every person who is age 65 or older, or disabled, or blind and
23 meets the income and asset requirements.
24 (26)(27) "Supportive services" means services designed
25 to encourage and assist aged persons or adults with
26 disabilities to remain in the least restrictive living
27 environment and to maintain their independence as long as
28 possible.
29 (27)(28) "Twenty-four-hour nursing supervision" means
30 services that are ordered by a physician for a resident whose
31 condition requires the supervision of a physician and
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1 continued monitoring of vital signs and physical status. Such
2 services shall be: medically complex enough to require
3 constant supervision, assessment, planning, or intervention by
4 a nurse; required to be performed by or under the direct
5 supervision of licensed nursing personnel or other
6 professional personnel for safe and effective performance;
7 required on a daily basis; and consistent with the nature and
8 severity of the resident's condition or the disease state or
9 stage.
10 Section 2. Subsection (2) of section 400.404, Florida
11 Statutes, is amended to read:
12 400.404 Facilities to be licensed; exemptions.--
13 (2) The following are exempt from licensure under this
14 part:
15 (a) Any facility, institution, or other place operated
16 by the Federal Government or any agency of the Federal
17 Government.
18 (b) Any facility or part of a facility licensed under
19 chapter 393 or chapter 394.
20 (c) Any facility licensed as an adult family-care home
21 under part VII.
22 (d) Any person who provides housing, meals, and one or
23 more personal services on a 24-hour basis in the person's own
24 home to not more than two adults who do not receive optional
25 state supplementation. The person who provides the housing,
26 meals, and personal services must own or rent the home and
27 reside therein.
28 (e)(c) Any home or facility approved by the United
29 States Department of Veterans Affairs as a residential care
30 home wherein care is provided exclusively to three or fewer
31 veterans.
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1 (f)(d) Any facility that has been incorporated in this
2 state for 50 years or more on or before July 1, 1983, and the
3 board of directors of which is nominated or elected by the
4 residents, until the facility is sold or its ownership is
5 transferred; or any facility, with improvements or additions
6 thereto, which has existed and operated continuously in this
7 state for 60 years or more on or before July 1, 1989, is
8 directly or indirectly owned and operated by a nationally
9 recognized fraternal organization, is not open to the public,
10 and accepts only its own members and their spouses as
11 residents.
12 (g)(e) Any facility certified under chapter 651, or a
13 retirement community, may provide services authorized under
14 this part or part IV of this chapter to its residents who live
15 in single-family homes, duplexes, quadruplexes, or apartments
16 located on the campus without obtaining a license to operate
17 an assisted living facility if residential units within such
18 buildings are used by residents who do not require staff
19 supervision for that portion of the day when personal services
20 are not being delivered and the owner obtains a home health
21 license to provide such services. However, any building or
22 distinct part of a building on the campus that is designated
23 for persons who receive personal services and require
24 supervision beyond that which is available while such services
25 are being rendered must be licensed in accordance with this
26 part. If a facility provides personal services to residents
27 who do not otherwise require supervision and the owner is not
28 licensed as a home health agency, the buildings or distinct
29 parts of buildings where such services are rendered must be
30 licensed under this part. A resident of a facility that
31 obtains a home health license may contract with a home health
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1 agency of his or her choice, provided that the home health
2 agency provides liability insurance and workers' compensation
3 coverage for its employees. Facilities covered by this
4 exemption may establish policies that give residents the
5 option of contracting for services and care beyond that which
6 is provided by the facility to enable them to age in place.
7 For purposes of this section, a retirement community consists
8 of a facility licensed under this part or under part II, and
9 apartments designed for independent living located on the same
10 campus.
11 Section 3. Subsection (1) of section 400.407, Florida
12 Statutes, is amended to read:
13 400.407 License required; fee, display.--
14 (1)(a) A license issued by the agency is required for
15 an assisted living facility operating in this state. It is
16 unlawful to operate or maintain a facility without first
17 obtaining from the agency a license authorizing such
18 operation.
19 (b)1. Any person found guilty of violating paragraph
20 (a) who, upon notification by the agency, fails, within 10
21 working days after receiving such notification, to apply for a
22 license commits a felony of the third degree, punishable as
23 provided in s. 775.082, s. 775.083, or s. 775.084.
24 2. Any person found to be in violation of paragraph
25 (a) due to a change in s. 400.402(3), (18), (24), or (25) or a
26 modification in department policy pertaining to personal
27 services as provided for in s. 400.402 and who, upon
28 notification by the agency, fails, within 10 working days
29 after receiving such notification, to apply for a license
30 commits a felony of the third degree, punishable as provided
31 in s. 775.082, s. 775.083, or s. 775.084.
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1 3. Except as provided for in subparagraph 2., any
2 person who violates paragraph (a) who previously operated a
3 licensed facility or concurrently operates a licensed facility
4 and an unlicensed facility commits a felony of the third
5 degree, punishable as provided in s. 775.082, s. 775.083, or
6 s. 775.084.
7 4. Any person who fails to obtain a license after
8 agency notification may be fined for each day of noncompliance
9 pursuant to s. 400.419(1)(b).
10 5. When an owner has an interest in more than one
11 facility, and fails to license any one of these facilities,
12 the agency may revoke the license or impose a moratorium on
13 any or all of the licensed facilities until such time as the
14 delinquent facility is licensed.
15 6. If the agency determines that an owner is operating
16 or maintaining a facility without obtaining a license
17 authorizing such operation and determines that a condition
18 exists in the facility that poses a threat to the health,
19 safety, or welfare of a resident of the facility, the owner
20 commits neglect as defined in s. 415.102 and is subject to the
21 same actions and penalties specified in ss. 400.414 and
22 400.419 for a negligent act seriously affecting the health,
23 safety, or welfare of a resident of the facility.
24 Section 4. Section 400.408, Florida Statutes, is
25 amended to read:
26 400.408 Unlicensed facilities; referral of person for
27 residency to unlicensed facility; penalties penalty;
28 verification of licensure status.--
29 (1)(a) It is unlawful to own, operate, or maintain an
30 assisted living facility without obtaining a license under
31 this part.
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1 (b) Except as provided under paragraph (d), any person
2 who owns, operates, or maintains an unlicensed assisted living
3 facility commits a felony of the third degree, punishable as
4 provided in s. 775.082, s. 775.083, or s. 775.084. Application
5 for licensure within 10 working days after notification shall
6 be an affirmative defense to this felony violation.
7 (c) Any person found guilty of violating paragraph (a)
8 a second or subsequent time, commits a felony of the second
9 degree, punishable as provided under s. 775.082, s. 775.083,
10 or s. 775.084.
11 (d) Any person who owns, operates, or maintains an
12 unlicensed assisted living facility due to a change in this
13 part or a modification in department rule within 6 months
14 after the effective date of such change and who, within 10
15 working days after receiving notification from the agency,
16 fails to cease operation or apply for a license under this
17 part commits a felony of the third degree, punishable as
18 provided in s. 775.082, s. 775.083, or s. 775.084.
19 (e) Pursuant to this subsection, any facility that
20 fails to apply for a license or cease operation after agency
21 notification may be fined for each day of noncompliance
22 pursuant to s. 400.419.
23 (f) When a licensee has an interest in more than one
24 assisted living facility, and fails to license any one of
25 these facilities, the agency may revoke the license or impose
26 a moratorium on any or all of the licensed facilities until
27 such time as the unlicensed facility applies for licensure or
28 ceases operation.
29 (g) If the agency determines that an owner is
30 operating or maintaining an assisted living facility without
31 obtaining a license and determines that a condition exists in
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1 the facility that poses a threat to the health, safety, or
2 welfare of a resident of the facility, the owner is subject to
3 the same actions and fines imposed against a licensed facility
4 as specified in ss. 400.414 and 400.419.
5 (h) Any person aware of the operation of an unlicensed
6 assisted living facility must report that facility to the
7 agency. The agency shall provide to the department and to
8 elder information and referral providers a list, by county, of
9 licensed assisted living facilities, to assist persons who are
10 considering an assisted living facility placement in locating
11 a licensed facility.
12 (2)(1) It is unlawful to knowingly refer a person for
13 residency to an unlicensed facility that provides services
14 that may only be provided by an assisted living facility; to
15 an assisted living facility the license of which is under
16 denial or has been suspended or revoked; or to an assisted
17 living a facility that has a moratorium on admissions. Any
18 person who violates this subsection commits is guilty of a
19 noncriminal violation, punishable by a fine not exceeding $500
20 as provided in s. 775.083.
21 (a) Any employee of the agency or department, or the
22 Department of Children and Family Health and Rehabilitative
23 Services, who knowingly refers a person for residency to an
24 unlicensed facility; to a facility the license of which is
25 under denial or has been suspended or revoked; or to a
26 facility that has a moratorium on admissions is subject to
27 disciplinary action by the agency or department, or the
28 Department of Children and Family Health and Rehabilitative
29 Services.
30 (b) The employer of any person who is under contract
31 with the agency or department, or the Department of Children
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1 and Family Health and Rehabilitative Services, and who
2 knowingly refers a person for residency to an unlicensed
3 facility; to a facility the license of which is under denial
4 or has been suspended or revoked; or to a facility that has a
5 moratorium on admissions shall be fined and required to
6 prepare a corrective action plan designed to prevent such
7 referrals.
8 (c)(2) The agency shall provide the department and the
9 Department of Children and Family Health and Rehabilitative
10 Services with a list of licensed facilities within each county
11 and shall update the list at least quarterly monthly.
12 (d)(3) At least annually, the agency shall notify, in
13 appropriate trade publications as defined by rule, physicians
14 licensed under chapter 458 or chapter 459 pursuant to chapter
15 458, osteopathic physicians licensed pursuant to chapter 459,
16 hospitals licensed under pursuant to part I of chapter 395,
17 and nursing home facilities licensed under pursuant to part II
18 of this chapter, and employees of the agency or the
19 department, or the Department of Children and Family Health
20 and Rehabilitative Services, who are responsible having a
21 responsibility for referring persons for residency, that it is
22 unlawful to knowingly refer a person for residency to an
23 unlicensed assisted living facility and shall notify them of
24 the penalty for violating such prohibition. The department and
25 the Department of Children and Family Services shall, in turn,
26 notify service providers under contract to the respective
27 departments who have responsibility for resident referrals to
28 facilities. Further, the notice must direct each noticed
29 facility and individual to contact the appropriate agency
30 office in order to verify the licensure status of any facility
31 prior to referring any person for residency. Each notice must
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1 include the name, telephone number, and mailing address of the
2 appropriate office to contact.
3 Section 5. Section 400.411, Florida Statutes, is
4 amended to read:
5 400.411 Initial application for license; provisional
6 license.--
7 (1) Application for license shall be made to the
8 agency on forms furnished by it and shall be accompanied by
9 the appropriate license fee. The application shall contain
10 sufficient information, as required by rules of the
11 department, to establish that the applicant can provide
12 adequate care.
13 (2) The applicant may be an individual owner,
14 corporation, partnership, firm, association, or governmental
15 entity.
16 (3)(2) The application shall be signed by the
17 applicant under oath and shall contain the following:
18 (a) The name, address, date of birth, and social
19 security number of the applicant and the name by which the
20 facility is to be known. Pursuant thereto:
21 1. If the applicant is a firm, partnership, or
22 association, the application shall contain the name, address,
23 date of birth, and social security number of every member
24 thereof.
25 2. If the applicant is a corporation, the application
26 shall contain the corporation's its name and address, the
27 name, address, date of birth, and social security number of
28 each of its directors and officers, and the name and address
29 of each person having at least a 5-percent ownership
30 10-percent interest in the corporation.
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1 (b) The name and address of any professional service,
2 firm, association, partnership, or corporation that is to
3 provide goods, leases, or services to the facility for which
4 the application is made, if a 5-percent 10-percent or greater
5 interest in the service, firm, association, partnership, or
6 corporation is owned by a person whose name must be listed on
7 the application under paragraph (a).
8 (c) Information sufficient that provides a source to
9 establish the suitable character, financial stability, and
10 competency of the applicant and of each person specified in
11 the application under subparagraph (a)1. or subparagraph (a)2.
12 who has at least a 10-percent interest in the firm,
13 partnership, association, or corporation and, if different
14 from the applicant, applicable, of the administrator, and
15 financial officer. including
16 (d) The name and address of any long-term care
17 facility with which the applicant, or administrator, or
18 financial officer has been affiliated through ownership or
19 employment within 5 years of the date of this license the
20 application for a license; and a signed affidavit disclosing
21 any financial or ownership interest that the applicant, or any
22 person listed in paragraph (a) principal, partner, or
23 shareholder thereof, holds or has held within the last 5 years
24 in any other facility licensed under this part, or in any
25 other entity licensed by this the state or another state to
26 provide health or residential care, which facility or entity
27 closed or ceased to operate as a result of financial problems,
28 or has had a receiver appointed or a license denied, suspended
29 or revoked, or was subject to a moratorium on admissions, or
30 had an injunctive proceeding initiated against it.
31
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1 (e)(d) The names and addresses of other persons of
2 whom the agency may inquire as to the character, and
3 reputation, and financial responsibility of the owner and, if
4 different from the applicant, the administrator and financial
5 officer applicant and, if applicable, of the administrator.
6 (e) The names and addresses of other persons of whom
7 the agency may inquire as to the financial responsibility of
8 the applicant.
9 (f) Identification of all other homes or facilities,
10 including the addresses and the license or licenses under
11 which they operate, if applicable, which are currently
12 operated by the applicant or administrator and which provide
13 housing, meals, and personal services to residents adults.
14 (g) Such other reasonable information as may be
15 required by the agency to evaluate the ability of the
16 applicant to meet the responsibilities entailed under this
17 part.
18 (g)(h) The location of the facility for which a
19 license is sought and documentation, signed by the appropriate
20 local government official, which states that the applicant has
21 met local zoning requirements.
22 (h)(i) The name, address, date of birth, social
23 security number, education, and experience of the
24 administrator if different from the applicant.
25 (4)(3) The applicant shall furnish satisfactory proof
26 of financial ability to operate and conduct the facility in
27 accordance with the requirements of this part. A certificate
28 of authority, pursuant to chapter 651, may be provided as
29 proof of financial ability. An applicant applying for an
30 initial license shall submit a balance sheet setting forth the
31 assets and liabilities of the owner and a statement projecting
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1 revenues, expenses, taxes, extraordinary items, and other
2 credits or charges for the first 12 months of operation of the
3 facility.
4 (5)(4) If the applicant is a continuing care facility
5 certified under chapter 651, a copy of the facility's
6 certificate of authority must be provided offers continuing
7 care agreements, as defined in chapter 651, proof shall be
8 furnished that the applicant has obtained a certificate of
9 authority as required for operation under that chapter.
10 (6)(5) The applicant shall provide proof of liability
11 insurance as defined in s. 624.605.
12 (7)(6) If the applicant is a community residential
13 home, the applicant must provide proof that it has met the
14 requirements specified in chapter 419 shall apply to community
15 residential homes zoned single-family or multifamily.
16 (8)(7) The applicant must provide the agency with
17 proof of legal right to occupy the property. This proof may
18 include, but is not limited to, copies of recorded warranty
19 deeds, or copies of lease or rental agreements, contracts for
20 deeds, quitclaim deeds, or other such documentation.
21 (9)(8) The applicant must furnish proof that the
22 facility has received a satisfactory firesafety inspection.
23 The local fire marshal or other authority having jurisdiction
24 or the State Fire Marshal must conduct the inspection within
25 30 days after the written request by the applicant. If an
26 authority having jurisdiction does not have a certified
27 firesafety inspector, the State Fire Marshal shall conduct the
28 inspection.
29 (10) The applicant must furnish documentation of a
30 satisfactory sanitation inspection of the facility by the
31 county health department.
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1 (11)(9) A provisional license may be issued to an
2 applicant making initial application for licensure or making
3 application for a change of ownership. A provisional license
4 shall be limited in duration to a specific period of time not
5 to exceed 6 months, as determined by the agency.
6 (12)(10) No county or municipality shall issue an
7 occupational license which is being obtained for the purpose
8 of operating a facility regulated under this part without
9 first ascertaining that the applicant has been licensed to
10 operate such facility at the specified location or locations
11 by the agency. The agency shall furnish to local agencies
12 responsible for issuing occupational licenses sufficient
13 instruction for making such the above-required determinations.
14 Section 6. Section 400.414, Florida Statutes, is
15 amended to read:
16 400.414 Denial, revocation, or suspension of license;
17 imposition of administrative fine; grounds.--
18 (1) The agency may deny, revoke, or suspend any a
19 license issued under this part or impose an administrative
20 fine in the manner provided in chapter 120. At the chapter 120
21 hearing, the agency shall prove by a preponderance of the
22 evidence that its actions are warranted.
23 (2) Any of the following actions by an assisted living
24 facility or any facility employee a facility or its employee
25 shall be grounds for action by the agency against a licensee:
26 (a) An intentional or negligent act seriously
27 affecting the health, safety, or welfare of a resident of the
28 facility.
29 (b) The determination by the agency that the facility
30 owner, or administrator, or financial officer is not of
31 suitable character or competency, or that the owner lacks the
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1 financial ability, to provide continuing adequate care to
2 residents, pursuant to the information obtained through s.
3 400.411, s. 400.417, or s. 400.434.
4 (c) Misappropriation or conversion of the property of
5 a resident of the facility.
6 (d) Failure to follow the criteria and procedures
7 provided under part I of chapter 394 relating to the
8 transportation, voluntary admission, and involuntary
9 examination of a facility resident.
10 (e) One or more class I, three or more class II, or
11 five or more repeated or recurring identical or similar class
12 III violations of this part which were identified by the
13 agency within the last 2 years during the last biennial
14 inspection, monitoring visit, or complaint investigation and
15 which, in the aggregate, affect the health, safety, or welfare
16 of the facility residents.
17 (f) A confirmed report of adult abuse, neglect, or
18 exploitation, as defined in s. 415.102, which has been upheld
19 following a chapter 120 hearing or a waiver of such
20 proceedings where the perpetrator is an employee, volunteer,
21 administrator, or owner, or otherwise has access to the
22 residents of a facility, and the owner or administrator has
23 not taken action to remove the perpetrator. Exemptions from
24 disqualification may be granted as set forth in s. 435.07. No
25 administrative action may be taken against the facility if the
26 perpetrator is granted an exemption.
27 (g) Violation of a moratorium.
28 (h) Failure of the license applicant, the licensee
29 during relicensure, or failure of a licensee that holds a
30 provisional an initial or change of ownership license, to meet
31 the minimum license standards or the requirements of rules
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1 adopted under this part, or related rules, at the time of
2 license application or renewal.
3 (i) A fraudulent statement or omission of any material
4 fact on an application for a license or any other document
5 required by the agency that is signed and notarized.
6 (j) An intentional or negligent life-threatening act
7 in violation of the uniform firesafety standards for assisted
8 living facilities or other firesafety standards established by
9 the State Fire Marshal, that threatens the health, safety, or
10 welfare of a resident of a facility, as communicated to the
11 agency by the local State Fire Marshal, a local fire marshal,
12 or other authority having jurisdiction or the State Fire
13 Marshal.
14 (k) Knowingly operating any unlicensed facility or
15 providing without a license any service that must be licensed
16 under this chapter.
17
18 Administrative proceedings challenging agency action under
19 this subsection shall be reviewed on the basis of the facts
20 and conditions that resulted in the agency action.
21 (3) Proceedings brought under paragraphs (2)(a), (c),
22 (e), and (j) shall not be subject to de novo review.
23 (2)(4) Upon notification by the local State Fire
24 Marshal, local fire marshal, or other authority having
25 jurisdiction or the State Fire Marshal, the agency may deny or
26 revoke the license of an assisted living a facility that fails
27 to correct cited fire code violations issued by the State Fire
28 Marshal, a local fire marshal, or other authority having
29 jurisdiction, that affect or threaten the health, safety, or
30 welfare of a resident of a facility.
31
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1 (3) The agency may deny a license to any applicant or
2 to any officer or board member of an applicant who is a firm,
3 corporation, partnership, or association or who owns 5 percent
4 or more of the facility, if the applicant, officer, or board
5 member has or had a 25 percent or greater financial or
6 ownership interest in any other facility licensed under this
7 part, or in any entity licensed by this state or another state
8 to provide health or residential care, which facility or
9 entity during the 5 years prior to the application for a
10 license closed due to financial inability to operate; had a
11 receiver appointed or a license denied, suspended, or revoked;
12 was subject to a moratorium on admissions; had an injunctive
13 proceeding initiated against it; or has an outstanding fine
14 assessed under this chapter.
15 (4) The agency shall deny or revoke the license of an
16 assisted living facility that has two or more class I
17 violations that are similar or identical to violations
18 identified by the agency during a survey, inspection,
19 monitoring visit, or complaint investigation occurring within
20 the previous 2 years.
21 (5) The agency may deny a license to an applicant who
22 owns 25 percent or more of, or operates, a facility which,
23 during the 5 years prior to the application for a license, has
24 had a license denied, suspended, or revoked pursuant to
25 subsection (2), or, during the 2 years prior to the
26 application for a license, has had a moratorium imposed on
27 admissions, has had an injunctive proceeding initiated against
28 it, has had a receiver appointed, was closed due to financial
29 inability to operate, or has an outstanding fine assessed
30 under this part.
31
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1 (5)(6) An action taken by the agency to suspend, deny,
2 or revoke a facility's license under this part, in which the
3 agency claims that the facility owner or an employee of the
4 facility has threatened the health, safety, or welfare of a
5 resident of the facility, shall, upon receipt of the
6 facility's request for a hearing, be heard by the Division of
7 Administrative Hearings of the Department of Management
8 Services within 120 days after the request for a hearing,
9 unless that time period is waived by both parties. The
10 administrative law judge must render a decision within 30 days
11 after the hearing after receipt of a proposed recommended
12 order.
13 (6)(7) The agency shall provide to the Division of
14 Hotels and Restaurants of the Department of Business and
15 Professional Regulation, on a monthly basis, a list of those
16 assisted living facilities which have had their licenses
17 denied, suspended, or revoked or which are involved in an
18 appellate proceeding pursuant to s. 120.60 related to the
19 denial, suspension, or revocation of a license.
20 (7) Agency notification of license suspension,
21 revocation, or denial of a license renewal shall be posted and
22 visible to the public at the facility.
23 Section 7. Section 400.415, Florida Statutes, is
24 amended to read:
25 400.415 Moratorium on admissions; notice.--The agency
26 may impose an immediate moratorium on admissions to any
27 assisted living facility if when the agency determines that
28 any condition in the facility presents a threat to the health,
29 safety, or welfare of the residents in the facility.
30 (1) A facility the license of which is denied,
31 revoked, or suspended pursuant to as a result of a violation
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1 of s. 400.414 may be subject to immediate imposition of a
2 moratorium on admissions to run concurrently with licensure
3 denial, revocation, or suspension.
4 (2) When a moratorium is placed on a facility, notice
5 of the moratorium shall be posted and visible to the public at
6 the facility until the moratorium is lifted.
7 (3) The department may by rule establish conditions
8 that constitute grounds for imposing a moratorium on a
9 facility and procedures for imposing and lifting a moratorium,
10 as necessary to administer this section.
11 Section 8. Section 400.417, Florida Statutes, is
12 amended to read:
13 400.417 Expiration of license; renewal; conditional
14 license.--
15 (1) Biennial licenses issued for the operation of a
16 facility, unless sooner suspended or revoked, shall expire
17 automatically 2 years from the date of issuance. Limited
18 nursing, extended congregate care, and limited mental health
19 licenses shall expire at the same time as the facility's
20 standard license, regardless of when issued. The agency shall
21 notify the facility by certified mail at least 120 days prior
22 to the expiration of the license that a renewal license
23 relicensure is necessary to continue operation. Ninety days
24 prior to the expiration date, an application for renewal shall
25 be submitted to the agency. Fees must be pro-rated. A license
26 shall be renewed upon the filing of an application on forms
27 furnished by the agency if the applicant has first met the
28 requirements established under this part and all rules
29 promulgated under this part. The failure to file a timely
30 renewal application shall result in a late fee charged to the
31 facility in an amount equal to 50 percent of the current fee
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1 in effect on the last preceding regular renewal date. Late
2 fees shall be deposited into the Health Care Trust Fund as
3 provided in s. 400.418. The facility shall file with the
4 application satisfactory proof of ability to operate and
5 conduct the facility in accordance with the requirements of
6 this part.
7 (2) A license shall be renewed within 90 days upon the
8 timely filing of an application on forms furnished by the
9 agency and the provision of satisfactory proof of ability to
10 operate and conduct the facility in accordance with the
11 requirements of this part and adopted rules, including An
12 applicant for renewal of a license must furnish proof that the
13 facility has received a satisfactory firesafety inspection,
14 conducted by the local fire marshal or other authority having
15 jurisdiction or the State Fire Marshal, within the preceding
16 12 months.
17 (3) An applicant for renewal of a license who has
18 complied on the initial license application with the
19 provisions of s. 400.411 with respect to proof of financial
20 ability to operate shall not be required to provide further
21 proof of financial ability on renewal applications unless the
22 facility or any other facility owned or operated in whole or
23 in part by the same person or business entity has demonstrated
24 financial instability as provided under s. 400.447(2)
25 evidenced by bad checks, delinquent accounts, or nonpayment of
26 withholding taxes, utility expenses, or other essential
27 services or unless the agency suspects that the facility is
28 not financially stable as a result of the annual survey or
29 complaints from the public or a report from the State
30 Long-Term Care Ombudsman Council. Each facility must shall
31 report to the agency any adverse court action concerning the
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1 facility's financial viability, within 7 days after its
2 occurrence. The agency shall have access to books, records,
3 and any other financial documents maintained by the facility
4 to the extent necessary to determine the facility's financial
5 stability carry out the purpose of this section. A license
6 for the operation of a facility shall not be renewed if the
7 licensee has any outstanding fines assessed pursuant to this
8 part which are in final order status.
9 (4)(2) A licensee against whom a revocation or
10 suspension proceeding is pending at the time of license
11 renewal may be issued a conditional license effective until
12 final disposition by the agency of such proceeding. If
13 judicial relief is sought from the final disposition, the
14 court having jurisdiction may issue a conditional license for
15 the duration of the judicial proceeding.
16 (5)(3) A conditional license may be issued to an
17 applicant for license renewal if when the applicant fails to
18 meet all standards and requirements for licensure. A
19 conditional license issued under this subsection shall be
20 limited in duration to a specific period of time not to exceed
21 6 months, as determined by the agency, and shall be
22 accompanied by an agency-approved approved plan of correction.
23 (6) The department may by rule establish renewal
24 procedures, identify forms, and specify documentation
25 necessary to administer this section.
26 Section 9. Section 400.4174, Florida Statutes, is
27 amended to read:
28 400.4174 Reports of abuse in facilities.--When an
29 employee, volunteer, administrator, or owner of a facility is
30 the subject of has a confirmed report of adult abuse, neglect,
31 or exploitation, as defined in s. 415.102, or child abuse or
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1 neglect, as defined in s. 415.503, and the protective
2 investigator knows that the individual is an employee,
3 volunteer, administrator, or owner of a facility, the agency
4 shall be notified of the confirmed report.
5 Section 10. Section 400.4176, Florida Statutes, is
6 amended to read:
7 400.4176 Notice of change of administrator.--If,
8 during the period for which a license is issued, the owner
9 changes administrators, the owner must notify the agency of
10 the change within 10 45 days thereof and must provide
11 documentation within 90 days that the new administrator has
12 completed the applicable core educational requirements under
13 s. 400.452. Background screening shall be completed on any
14 new administrator to establish that the individual is of
15 suitable character as specified in s. 400.411 ss.
16 400.411(2)(c) and 400.456.
17 Section 11. Subsection (1) of section 400.418, Florida
18 Statutes, is amended to read:
19 400.418 Disposition of fees and administrative
20 fines.--
21 (1) Income from license fees, inspection fees, late
22 fees, and administrative fines generated pursuant to ss.
23 400.407, 400.408, 400.417, 400.419, and 400.431 shall be
24 deposited in the Health Care Trust Fund administered by the
25 agency. Such funds shall be directed to and used by the
26 agency for the following purposes:
27 (a) Up to 50 percent of the trust funds accrued each
28 fiscal year under this part may be used to offset the expenses
29 of receivership, pursuant to s. 400.422, if the court
30 determines that the income and assets of the facility are
31 insufficient to provide for adequate management and operation.
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1 (b) An amount of $5,000 of the trust funds accrued
2 each year under this part shall be allocated to pay for
3 inspection-related physical and mental health examinations
4 requested by the agency pursuant to s. 400.426 for residents
5 who are either recipients of supplemental security income or
6 have monthly incomes not in excess of the maximum combined
7 federal and state cash subsidies available to supplemental
8 security income recipients, as provided for in s. 409.212.
9 Such funds shall only be used where the resident is ineligible
10 for Medicaid.
11 (c) Any trust funds accrued each year under this part
12 and not used for the purposes specified in paragraphs (a) and
13 (b) shall be used to offset the costs of the licensure
14 program, including the costs of conducting background
15 investigations, verifying information submitted, defraying the
16 costs of processing the names of applicants, and conducting
17 inspections and monitoring visits pursuant to this part.
18 Section 12. Section 400.419, Florida Statutes, is
19 amended to read:
20 400.419 Violations; administrative fines penalties.--
21 (1)(a) If the agency determines that a facility is not
22 in compliance with standards promulgated pursuant to the
23 provisions of this part, including the failure to report
24 evidence of the facility's financial instability or the
25 operation of a facility without a license, the agency, as an
26 alternative to or in conjunction with an administrative action
27 against a facility, shall make a reasonable attempt to discuss
28 each violation and recommended corrective action with the
29 owner or administrator of the facility, prior to written
30 notification thereof. The agency, instead of fixing a period
31 within which the facility shall enter into compliance with
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1 standards, may request a plan of corrective action from the
2 facility which demonstrates a good faith effort to remedy each
3 violation by a specific date, subject to the approval of the
4 agency.
5 (b) Any facility owner or administrator found in
6 violation of this part, including any individual operating a
7 facility without a license, shall be subject to a fine, set
8 and levied by the agency.
9 (c) Each day during which any person violates any such
10 provision after the date fixed for termination of the
11 violation, as ordered by the agency, constitutes an
12 additional, separate, and distinct violation.
13 (d) Any action taken to correct a violation shall be
14 documented in writing by the administrator of the facility and
15 verified through followup visits by licensing personnel of the
16 agency. The agency may impose a fine and, in the case of an
17 owner-operated facility, revoke a facility's license when a
18 facility administrator fraudulently misrepresents action taken
19 to correct a violation.
20 (e) If a facility desires to appeal any agency action
21 under this section, it shall send a written request for a
22 hearing to the agency within 15 days of receipt by certified
23 mail of notice of the action of the agency. If the fine is
24 upheld, the violator shall pay the fine, plus interest at the
25 legal rate as specified in s. 687.01, for each day beyond the
26 date set by the agency for payment of the fine.
27 (2) In determining if a penalty is to be imposed and
28 in fixing the amount of the penalty to be imposed, if any, for
29 a violation, the agency shall consider the following factors:
30 (a) The gravity of the violation, including the
31 probability that death or serious physical or emotional harm
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1 to a resident will result or has resulted, the severity of the
2 action or potential harm, and the extent to which the
3 provisions of the applicable statutes or rules were violated.
4 (b) Actions taken by the owner or administrator to
5 correct violations.
6 (c) Any previous violations.
7 (d) The financial benefit to the facility of
8 committing or continuing the violation.
9 (e) The licensed capacity of the facility.
10 (1)(3) Each violation of this part and adopted rules
11 shall be classified according to the nature of the violation
12 and the gravity of its probable effect on facility residents.
13 The agency shall indicate the classification of each violation
14 on the written face of the notice of the violation as follows:
15 (a) Class "I" violations are those conditions or
16 occurrences related to the operation and maintenance of a
17 facility or to the personal care of residents which the agency
18 determines present an imminent danger to the residents or
19 guests of the facility or a substantial probability that death
20 or serious physical or emotional harm would result therefrom.
21 The condition or practice constituting a class I violation
22 shall be abated or eliminated within 24 hours, unless a fixed
23 period, as determined by the agency, is required for
24 correction. A class I violation is subject to an
25 administrative fine a civil penalty in an amount not less than
26 $1,000 and not exceeding $10,000 $5,000 for each violation. A
27 fine may be levied notwithstanding the correction of the
28 violation.
29 (b) Class "II" violations are those conditions or
30 occurrences related to the operation and maintenance of a
31 facility or to the personal care of residents which the agency
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1 determines directly threaten the physical or emotional health,
2 safety, or security of the facility residents, other than
3 class I violations. A class II violation is subject to an
4 administrative fine a civil penalty in an amount not less than
5 $500 and not exceeding $5,000 $1,000 for each violation. A
6 citation for a class II violation shall specify the time
7 within which the violation is required to be corrected. If a
8 class II violation is corrected within the time specified, no
9 fine civil penalty may be imposed, unless it is a repeated
10 offense.
11 (c) Class "III" violations are those conditions or
12 occurrences related to the operation and maintenance of a
13 facility or to the personal care of residents which the agency
14 determines indirectly or potentially threaten the physical or
15 emotional health, safety, or security of facility residents,
16 other than class I or class II violations. A class III
17 violation is subject to an administrative fine a civil penalty
18 of not less than $100 and not exceeding $1,000 $500 for each
19 violation. A citation for a class III violation shall specify
20 the time within which the violation is required to be
21 corrected. If a class III violation is corrected within the
22 time specified, no fine civil penalty may be imposed, unless
23 it is a repeated offense.
24 (d) Class "IV" violations are those conditions or
25 occurrences related to the operation and maintenance of a
26 building or to required reports, forms, or documents that do
27 not have the potential of negatively affecting residents.
28 These violations are of a type that the agency determines do
29 not threaten the health, safety, or security of residents of
30 the facility. A facility that does not correct a class IV
31 violation within the time limit specified in the
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1 agency-approved corrective action plan is subject to an
2 administrative fine a civil penalty of not less than $50 nor
3 more than $200 for each violation. Any class IV violation
4 that is corrected during the time an agency survey is being
5 conducted will be identified as an agency finding and not as a
6 violation.
7 (2)(4) The agency may set and levy a fine not to
8 exceed $1,000 $500 for each violation which cannot be
9 classified according to subsection (1) (3). In no event may
10 Such fines fine in the aggregate may not exceed $10,000 per
11 survey $5,000.
12 (3) In determining if a penalty is to be imposed and
13 in fixing the amount of the fine, the agency shall consider
14 the following factors:
15 (a) The gravity of the violation, including the
16 probability that death or serious physical or emotional harm
17 to a resident will result or has resulted, the severity of the
18 action or potential harm, and the extent to which the
19 provisions of the applicable laws or rules were violated.
20 (b) Actions taken by the owner or administrator to
21 correct violations.
22 (c) Any previous violations.
23 (d) The financial benefit to the facility of
24 committing or continuing the violation.
25 (e) The licensed capacity of the facility.
26 (4) Each day of continuing violation after the date
27 fixed for termination of the violation, as ordered by the
28 agency, constitutes an additional, separate, and distinct
29 violation.
30 (5) Any action taken to correct a violation shall be
31 documented in writing by the owner or administrator of the
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1 facility and verified through followup visits by agency
2 personnel. The agency may impose a fine and, in the case of an
3 owner-operated facility, revoke or deny a facility's license
4 when a facility administrator fraudulently misrepresents
5 action taken to correct a violation.
6 (6) For fines that are upheld following administrative
7 or judicial review, the violator shall pay the fine, plus
8 interest at the rate as specified in s. 55.03, for each day
9 beyond the date set by the agency for payment of the fine.
10 (7) Except as provided in subsection (8), any facility
11 that continues to operate without having applied for a license
12 10 days after agency notification is subject to a $1,000 fine.
13 Each day beyond 20 days after agency notification constitutes
14 a separate violation and the facility is subject to a fine of
15 $500 per day.
16 (8) Unlicensed facilities whose owner or administrator
17 concurrently operates a licensed facility, has previously
18 operated a licensed facility, or has been employed in a
19 licensed facility shall immediately be subject to an
20 administrative fine of $5,000 upon agency notification. Each
21 day that a facility continues to operate without having
22 applied for a license within 10 working days after agency
23 notification constitutes a separate violation, and such
24 facility shall be subject to a fine of $500 per day
25 retroactive to the date of agency notification.
26 (9) Any facility whose owner fails to apply for a
27 change-of-ownership license in accordance with s. 400.412 and
28 operates the facility under the new ownership is subject to a
29 fine not to exceed $5,000.
30 (10) In addition to any administrative fines imposed,
31 the agency may assess a survey fee, equal to the lesser of one
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1 half of the facility's biennial license and bed fee or $500,
2 to cover the cost of conducting initial complaint
3 investigations that result in the finding of a violation that
4 was the subject of the complaint or monitoring visits
5 conducted under s. 400.428(3)(c) to verify the correction of
6 the violations.
7 (11) The agency, as an alternative to or in
8 conjunction with an administrative action against a facility
9 for violations of this part and adopted rules, shall make a
10 reasonable attempt to discuss each violation and recommended
11 corrective action with the owner or administrator of the
12 facility, prior to written notification. The agency, instead
13 of fixing a period within which the facility shall enter into
14 compliance with standards, may request a plan of corrective
15 action from the facility which demonstrates a good-faith
16 effort to remedy each violation by a specific date, subject to
17 the approval of the agency.
18 (12)(5) Administrative fines Civil penalties paid by
19 any facility under this section the provisions of subsection
20 (3) shall be deposited into the Health Care Trust Fund and
21 expended as provided in s. 400.418.
22 (13)(6) The agency shall develop and disseminate an
23 annual list of all facilities sanctioned or fined $5,000 or
24 more in excess of $500 for violations of state standards, the
25 number and class of violations involved, the penalties
26 imposed, and the current status of cases. The list shall be
27 disseminated, at no charge, to the Department of Elderly
28 Affairs, the Department of Health and Rehabilitative Services,
29 the Department of Children and Family Services, the area
30 agencies on aging, the Statewide Human Rights Advocacy
31 Committee, and the state and district nursing home and
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1 long-term care facility ombudsman councils. The Department of
2 Children and Family Services shall disseminate the list to
3 service providers under contract to the department who are
4 responsible for referring persons to a facility for residency.
5 The agency may charge a fee commensurate with the cost of
6 printing and postage to other interested parties requesting a
7 copy of this list.
8 Section 13. Subsection (2) of section 400.4195,
9 Florida Statutes, is amended to read:
10 400.4195 Rebates prohibited; penalties.--
11 (2) A violation of this section shall be considered
12 patient brokering and is punishable as provided in s. 817.505
13 The department, in consultation with the agency, shall adopt
14 rules which assess administrative penalties for acts
15 prohibited by subsection (1).
16 Section 14. Paragraph (a) of subsection (1) of section
17 400.422, Florida Statutes, is amended to read:
18 400.422 Receivership proceedings.--
19 (1) As an alternative to or in conjunction with an
20 injunctive proceeding, the agency may petition a court of
21 competent jurisdiction for the appointment of a receiver, if
22 suitable alternate placements are not available, when any of
23 the following conditions exist:
24 (a) The facility is operating without a license and
25 refuses to make application for a license as required by ss.
26 s. 400.407 and 400.408.
27 Section 15. Section 400.4256, Florida Statutes, is
28 created to read:
29 400.4256 Assistance with self-administration of
30 medication.--
31 (1) For the purposes of this section, the term:
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1 (a) "Informed consent" means advising the resident, or
2 the resident's surrogate, guardian, or attorney in fact, that
3 an assisted living facility is not required to have a licensed
4 nurse on staff, that the resident may be receiving assistance
5 with self-administration of medication from an unlicensed
6 person, and that such assistance, if provided by an unlicensed
7 person, will or will not be overseen by a licensed nurse.
8 (b) "Unlicensed person" means an individual not
9 currently licensed to practice nursing or medicine who is
10 employed by or under contract to an assisted living facility
11 and who has received training with respect to assisting with
12 the self-administration of medication in an assisted living
13 facility as provided under s. 400.452 prior to providing such
14 assistance as described in this section.
15 (2) Residents who are capable of self-administering
16 their own medications without assistance shall be encouraged
17 and allowed to do so. However, an unlicensed person may,
18 consistent with a dispensed prescription's label or the
19 package directions of an over-the-counter medication, assist a
20 resident whose condition is medically stable with the
21 self-administration of routine, regularly scheduled
22 medications that are intended to be self-administered.
23 Assistance with self-medication by an unlicensed person may
24 occur only upon a documented request by, and the written
25 informed consent of, a resident or the resident's surrogate,
26 guardian, or attorney in fact. For the purposes of this
27 section, self-administered medications include both legend and
28 over-the-counter oral dosage forms, topical dosage forms and
29 topical opthalmic, otic, and nasal dosage forms including
30 solutions, suspensions, sprays, and inhalers.
31
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1 (3) Assistance with self-administration of medication
2 includes:
3 (a) Taking the medication, in its previously
4 dispensed, properly labeled container, from where it is
5 stored, and bringing it to the resident.
6 (b) In the presence of the resident, reading the
7 label, opening the container, removing a prescribed amount of
8 medication from the container, and closing the container.
9 (c) Placing an oral dosage in the resident's hand or
10 placing the dosage in another container and helping the
11 resident by lifting the container to his or her mouth.
12 (d) Applying topical medications.
13 (e) Returning the medication container to proper
14 storage.
15 (f) Keeping a record of when a resident receives
16 assistance with self-administration under this section.
17 (4) Assistance with self-administration does not
18 include:
19 (a) Mixing, compounding, converting, or calculating
20 medication doses, except for measuring a prescribed amount of
21 liquid medication or breaking a scored tabled or crushing a
22 tablet as prescribed.
23 (b) The preparation of syringes for injection or the
24 administration of medications by any injectable route.
25 (c) Administration of medications through intermittent
26 positive pressure breathing machines or a nebulizer.
27 (d) Administration of medications by way of a tube
28 inserted in a cavity of the body.
29 (e) Administration of parenteral preparations.
30 (f) Irrigations or debriding agents used in the
31 treatment of a skin condition.
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1 (g) Rectal, urethral, or vaginal preparations.
2 (h) Medications ordered by the physician or health
3 care professional with prescriptive authority to be given "as
4 needed," unless the order is written with specific parameters
5 that preclude independent judgment on the part of the
6 unlicensed person, and at the request of a competent resident.
7 (i) Medications for which the time of administration,
8 the amount, the strength of dosage, the method of
9 administration, or the reason for administration requires
10 judgment or discretion on the part of the unlicensed person.
11 (5) Assistance with the self-administration of
12 medication by an unlicensed person as described in this
13 section shall not be considered administration as defined in
14 s. 465.003.
15 (6) The department may by rule establish facility
16 procedures and interpret terms as necessary to implement this
17 section.
18 Section 16. Subsection (3) of section 400.428, Florida
19 Statutes, is amended to read:
20 400.428 Resident bill of rights.--
21 (3)(a) The agency shall conduct a survey an inspection
22 to determine general compliance with facility standards and
23 compliance with residents' rights as a prerequisite to initial
24 or renewal licensure or licensure renewal.
25 (b) In order to determine whether the facility is
26 adequately protecting residents' rights, the biennial survey
27 inspection of the facility shall include private informal
28 conversations with a sample of residents and consultation with
29 the ombudsman council in the planning and service area, as
30 defined in part II, in which the facility is located to
31 discuss residents' experiences within the facility with
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1 respect to rights specified in this section and general
2 compliance with standards.
3 (c) During any calendar year in which no survey
4 inspection is conducted, the agency shall conduct at least one
5 monitoring visit of each facility cited in the previous year
6 for a class I or class II violation, or more than three
7 uncorrected class III violations, that led to a conditional
8 license or a moratorium on admissions.
9 (d) The agency may conduct periodic followup
10 inspections as necessary to monitor the compliance of
11 facilities with a history of any class I, class II, or class
12 III violations that threaten the health, safety, or security
13 of residents.
14 (e)(d) The agency may conduct complaint investigations
15 as warranted to investigate any allegations of noncompliance
16 with requirements required under this part or rules adopted
17 promulgated under this part.
18 Section 17. Section 400.442, Florida Statutes, is
19 amended to read:
20 400.442 Pharmacy and dietary services.--
21 (1) Notwithstanding s. 400.419, Any assisted living
22 facility in which the agency has documented a class I or class
23 II deficiency or uncorrected class III deficiencies regarding
24 medicinal drugs or over-the-counter preparations, including
25 their storage, use, delivery, or administration, or dietary
26 services, or both, during a biennial survey or a monitoring
27 visit or an investigation in response to a complaint, shall,
28 in addition to or as an alternative to any penalties imposed
29 under s. 400.419, be required to employ the consultant
30 services of a licensed pharmacist, a licensed registered
31 nurse, or a registered or licensed dietitian, or both, as
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1 applicable. The consultant shall provide onsite consultation
2 and shall continue with, at a minimum, provide onsite
3 quarterly consultation until the inspection team from the
4 agency determines that such consultation services are no
5 longer required.
6 (2) A corrective-action plan for deficiencies related
7 to assistance with the self-administration of medication or
8 the administration of medication must be developed and
9 implemented by the facility within 48 hours after notification
10 of such deficiency, or sooner if the deficiency is determined
11 by the agency to be life-threatening.
12 (3)(2) The agency shall employ at least two
13 pharmacists licensed pursuant to chapter 465 among its
14 personnel who biennially inspect assisted living facilities
15 licensed under this part, to participate in biennial
16 inspections or consult with the agency regarding deficiencies
17 relating to medicinal drugs or over-the-counter preparations,
18 including, but not limited to, their storage, use, delivery,
19 or administration. A corrective action plan for deficiencies
20 related to the administration or supervision of medication
21 must be developed and implemented within 48 hours after
22 notification of the deficiency, or sooner if the deficiency is
23 determined by the agency to be life threatening.
24 Section 18. Section 400.452, Florida Statutes, is
25 amended to read:
26 400.452 Staff training and educational programs; core
27 educational requirement.--
28 (1) The department shall provide, or cause to be
29 provided, training and educational programs for the
30 administrators and such other assisted living facility staff
31 as are defined by the department to better enable them to
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1 appropriately respond to the needs of residents, to maintain
2 resident care and facility standards, and to meet licensure
3 requirements.
4 (2) The department shall also establish a core
5 educational requirement to be used in these programs.
6 Successful completion of the core educational requirement must
7 include successful completion of a competency test. Programs
8 must be provided by the department or by a provider approved
9 by the department at least quarterly. The core educational
10 requirement must cover at least the following topics:
11 (a) State law and rules relating to on assisted living
12 facilities, including lifesafety requirements and procedures.
13 (b) Resident rights and identifying and reporting
14 abuse, neglect, and exploitation.
15 (c) Special needs of elderly persons, persons with
16 mental illness, and persons with developmental disabilities
17 and how to meet those needs.
18 (d) Nutrition and food service, including acceptable
19 sanitation practices for preparing, storing, and serving food.
20 (e) Medication management, recordkeeping, and proper
21 techniques for assisting residents with self-administered
22 medication, including recordkeeping.
23 (f) Firesafety requirements, including fire evacuation
24 drill procedures and other emergency procedures drills.
25 (g) Care of persons with Alzheimer's disease and other
26 related disorders.
27 (3) Such a program must be available at least
28 quarterly in each planning and service area district of the
29 department of Health and Rehabilitative Services. The
30 competency test must be developed by the department in
31 conjunction with the agency and providers and must be
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1 available for use by January 1, 1997. Beginning July 1, 1997,
2 A new facility administrator must complete the core
3 educational requirement including the competency test within 3
4 months after being employed as an administrator. Failure to
5 complete a core educational requirement specified in this
6 subsection is a violation of this part and subjects the
7 violator to an administrative fine a penalty as prescribed in
8 s. 400.419. Administrators licensed in accordance with chapter
9 468, part II, are exempt from this requirement. Other licensed
10 professionals may be exempted, as determined by the department
11 by rule.
12 (4) Administrators are required to participate in
13 continuing education for a minimum of 12 contact hours every 2
14 years as specified by rule of the department.
15 (5) Staff involved with the management of medications
16 and assisting with the self-administration of medications
17 under s. 400.4256 must complete a minimum of 4 hours of
18 training pursuant to a curriculum developed by the department
19 and provided by a registered nurse, licensed pharmacist, or
20 department staff. Administrators and staff of facilities more
21 than 10 percent of whose residents are mental health residents
22 shall participate in training in the care and supervision of
23 such residents as specified by rule of the department.
24 (6) Other facility staff shall participate in training
25 relevant to their job duties as specified by rule of the
26 department.
27 (7) Any facility more than 90 percent of whose
28 residents receive monthly optional supplementation payments is
29 not required to pay for the training and education programs
30 provided under this section. A facility that has one or more
31 such residents shall pay a reduced fee that is proportional to
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1 the percentage of such residents in the facility. A facility
2 that does not have any residents who receive monthly optional
3 supplementation payments must pay a reasonable fee, as
4 established by the department, for such training and education
5 programs. A facility that has one or more such residents shall
6 pay a reduced fee that is proportional to the percentage of
7 such residents in the facility. Any facility more than 90
8 percent of whose residents receive monthly optional state
9 supplementation payments is not required to pay for the
10 training and continuing education programs required under this
11 section.
12 (8) If the department or the agency determines that
13 there are problems in a facility that could be reduced through
14 specific staff training or education beyond that already
15 required under this section, the department or the agency may
16 require, and provide, or cause to be provided, the training or
17 education of any personal care staff in the facility.
18 (9) The department shall adopt rules to establish
19 training programs, standards and curriculum for training,
20 staff training requirements, procedures for approving training
21 programs, and training fees.
22 Section 19. Paragraph (c) is added to subsection (2)
23 of section 400.474, Florida Statutes, to read:
24 400.474 Denial, suspension, revocation of license;
25 injunction; grounds.--
26 (2) Any of the following actions by a home health
27 agency or its employee is grounds for disciplinary action by
28 the Agency for Health Care Administration:
29 (c) Knowingly providing home health services in an
30 unlicensed assisted living facility or unlicensed adult
31 family-care home, unless the home health agency or employee
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1 reports the unlicensed facility or home to the agency within
2 72 hours after providing the services.
3 Section 20. Subsection (2) of section 400.618, Florida
4 Statutes, is amended to read:
5 400.618 Definitions.--As used in this part ss.
6 400.616-400.629, the term:
7 (2) "Adult family-care home" means a full-time,
8 family-type living arrangement, in a private home, under which
9 a person who owns or rents the home provides or persons
10 provide, for profit or not for profit, room, board, and one or
11 more personal services, on a 24-hour basis as appropriate for
12 the level of functional impairment, for no more than five aged
13 persons or disabled adults who are not relatives. The
14 following family-type living arrangements establishments are
15 not required to be licensed as an adult family-care home
16 homes:
17 (a) An arrangement whereby the person who owns or
18 rents the home provides room, board, and establishment that
19 provides personal services for not more than two three or
20 fewer adults who do not receive optional state supplementation
21 under s. 409.212, but that does not hold itself out to the
22 public to be an establishment that regularly provides such
23 services. The person who provides the housing, meals, and
24 personal services must own or rent the home and reside
25 therein.
26 (b) An arrangement whereby the person who owns or
27 rents the home provides room, board, and establishment in
28 which a person or persons provide personal services only to
29 their relatives.
30 (c) An establishment that is licensed as an assisted
31 living facility under part III.
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1 Section 21. Paragraph (h) of subsection (3) of section
2 408.036, Florida Statutes, is amended to read:
3 408.036 Projects subject to review.--
4 (3) EXEMPTIONS.--Upon request, supported by such
5 documentation as the agency requires, the agency shall grant
6 an exemption from the provisions of subsection (1):
7 (h) For the establishment of a Medicare-certified home
8 health agency by a facility certified under chapter 651; a
9 retirement community, as defined in s. 400.404(2)(g) s.
10 400.404(2)(e); or a residential facility that serves only
11 retired military personnel, their dependents, and the
12 surviving dependents of deceased military personnel.
13 Medicare-reimbursed home health services provided through such
14 agency shall be offered exclusively to residents of the
15 facility or retirement community or to residents of facilities
16 or retirement communities owned, operated, or managed by the
17 same corporate entity. Each visit made to deliver
18 Medicare-reimbursable home health services to a home health
19 patient who, at the time of service, is not a resident of the
20 facility or retirement community shall be a deceptive and
21 unfair trade practice and constitutes a violation of ss.
22 501.201-501.213.
23
24 A request for exemption under this subsection may be made at
25 any time and is not subject to the batching requirements of
26 this section.
27 Section 22. Subsection (3) is added to section
28 394.4574, Florida Statutes, to read:
29 394.4574 Department responsibilities for a mental
30 health resident who resides in an assisted living facility
31 that holds a limited mental health license.--
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1 (3) The Secretary of Children and Family Services
2 shall annually require each district administrator to develop,
3 with community input, detailed plans that demonstrate how the
4 district will ensure the provision of state-funded mental
5 health and substance-abuse-treatment services to residents of
6 assisted living facilities that hold a limited mental health
7 license. These plans must be consistent with the alcohol, drug
8 abuse, and mental health district plan developed pursuant to
9 s. 394.75 and must address case-management services; access to
10 consumer-operated drop-in centers; access to services during
11 evenings, weekends, and holidays; supervision of the clinical
12 needs of the residents; and access to emergency psychiatric
13 care.
14 Section 23. This act shall take effect October 1,
15 1998.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 1960
3
4
- The term "applicant" is defined; existing definitions of
5 "personal services" and "supervision of activities of
daily living" are amended to include the
6 self-administration of medication; and the definitions of
"supervision of self-administration of medication" and
7 "assistance with activities of daily living are deleted."
8 - Regarding an unlicensed assisted living facility,
application within 10 days is an affirmative defense to
9 the first offense rather than allowing 10 days in which
to apply for the license.
10
- No penalty is provided specifically for a health care
11 practitioner's knowledge of an unlicensed assisted living
facility, though any person must report knowledge of an
12 unlicensed assisted living facility to the Agency for
Health Care Administration (agency).
13
- Agency action for denial, revocation, or suspension of a
14 license is permitted with one or more class I violations
or three or more class II violations within the prior 2
15 years.
16 - All references to background screening are removed.
17 - New language is added to allow for licensure denial for
previous relevant violations in the prior 5 years.
18
- The agency is directed to deny or revoke a license if an
19 assisted living facility has two or more class I
violations which are similar or identical to violations
20 previously identified in the prior 2 years.
21 - A notice of moratorium is to be posted and visible to the
public until the moratorium is lifted.
22
- Provisions relating to class IV violation fines are
23 returned to current law.
24 - The provision allowing the agency to double
administrative fines for the same violation identified on
25 the previous inspection is deleted.
26 - A home health license may be denied, suspended, or
revoked if a party knowingly provides home health
27 services in an unlicensed assisted living facility or
adult family care home and does not report the unlicensed
28 facility or home to the agency within 72 hours of
providing the services.
29
- A violation of s. 400.4195, F.S., rebates prohibited, is
30 considered patient-brokering and is punishable
accordingly.
31
- A new section is created to allow for the assistance with
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1 the self-administration of certain medications.
2 - Section 400.442, F.S., is amended to require assisted
living facilities with certain deficiencies related to
3 dispensing of medication to hire a professional
consultant such as a licensed pharmacist, licensed
4 registered nurse, or a registered or licensed dietitian.
5 - Staff training requirements are conformed to the
assistance with the self-administration of certain
6 medications provisions to require certain training and
records management in this area.
7
- A new subsection is added to s. 394.4574, F.S., to
8 require district plans to ensure the provision of
state-funded mental health and substance abuse treatment
9 services to residents of assisted living facilities
holding a limited mental health license.
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