Senate Bill 1960er

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  1

  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. 400.4075, F.S.;

15         providing requirements for obtaining a limited

16         mental health license; amending s. 400.411,

17         F.S.; revising requirements for an initial

18         application for license; providing for a fee;

19         amending s. 400.414, F.S.; revising authority

20         and grounds for denial, revocation, or

21         suspension of licenses or imposition of

22         administrative fines; specifying terms for

23         review of proceedings challenging

24         administrative actions; amending s. 400.415,

25         F.S.; requiring a facility to post notice of a

26         moratorium on admissions; providing for rules

27         establishing grounds for imposition of a

28         moratorium; amending s. 400.417, F.S.;

29         providing for coordinated expiration of a

30         facility's license; revising requirements for

31         license renewal; providing for rules; amending


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  1         s. 400.4174, F.S.; amending an outdated

  2         reference to child abuse or neglect; amending

  3         s. 400.4176, F.S.; revising time requirement

  4         for notice of change of administrator; amending

  5         ss. 400.418, 400.422, 400.452, 408.036, F.S.,

  6         relating to the disposition of fees and fines,

  7         receivership proceedings, staff training and

  8         education, and the review of certain projects;

  9         conforming cross-references to changes made by

10         the act; amending s. 400.419, F.S.; revising

11         procedures relating to violations and

12         penalties; increasing administrative fines for

13         specified classes of violations; providing

14         fines for unlicensed operation of a facility

15         and for failure to apply for a change of

16         ownership license; authorizing a survey fee to

17         cover the cost of certain complaint

18         investigations; providing for corrective action

19         plans to correct violations; expanding

20         dissemination of information regarding

21         facilities sanctioned or fined; amending s.

22         400.4195, F.S., relating to prohibitions and

23         rebates; creating s. 400.4256, F.S., relating

24         to assistance with the self-administration of

25         medication; amending s. 400.428, F.S.;

26         providing for surveys to determine compliance

27         with facility standards and residents' rights;

28         amending s. 400.474, F.S.; providing for

29         disciplinary action against a home health

30         agency or employee who knowingly provides

31         services in an unlicensed assisted living


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  1         facility or adult family-care home; amending s.

  2         400.618, F.S.; revising the definition of the

  3         term "adult-family care home"; amending s.

  4         394.4574, F.S.; requiring district

  5         administrators of the Department of Children

  6         and Family Services to develop plans to ensure

  7         the provision of mental health and substance

  8         abuse treatment services to residents of

  9         assisted living facilities that hold a limited

10         mental health license; providing an effective

11         date.

12

13  Be It Enacted by the Legislature of the State of Florida:

14

15         Section 1.  Section 400.402, Florida Statutes, is

16  amended to read:

17         400.402  Definitions.--When used in this part, unless

18  the context otherwise requires, the term:

19         (1)  "Activities of daily living" means functions and

20  tasks for self-care, including ambulation, bathing, dressing,

21  eating, grooming, and toileting, and other similar tasks.

22         (2)  "Administrator" means an individual at least 21

23  years of age who is responsible for the operation and

24  maintenance who has general administrative charge of an

25  assisted living facility.

26         (3)  "Assisted living facility," hereinafter referred

27  to as "facility," means any building or buildings, section of

28  a building, or distinct part of a building, residence, private

29  home, boarding home, home for the aged, or other place,

30  whether operated for profit or not, which undertakes through

31  its ownership or management to provide, for a period exceeding


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  1  24 hours, housing, food service, and one or more personal

  2  services for four or more adults, not related to the owner or

  3  administrator by blood or marriage, who require such services;

  4  or to provide extended congregate care, limited nursing

  5  services, or limited mental health services, when specifically

  6  licensed to do so pursuant to s. 400.407, unless the facility

  7  is licensed as an adult family-care home.  A facility offering

  8  personal services, extended congregate care, limited nursing

  9  services, or limited mental health services for fewer than

10  four adults is within the meaning of this definition if it

11  formally or informally advertises to or solicits the public

12  for residents or referrals and holds itself out to the public

13  to be an establishment which regularly provides such services,

14  unless the facility is licensed as an adult family-care home.

15         (3)(4)  "Agency" means the Agency for Health Care

16  Administration.

17         (4)(5)  "Aging in place" or "age in place" means the

18  process of providing increased or adjusted services to a

19  person to compensate for by which a person chooses to remain

20  in a residential environment despite the physical or mental

21  decline that may occur with the aging process, in order to

22  maximize.  For aging in place to occur, needed services are

23  added, increased, or adjusted to compensate for the physical

24  or mental decline of the individual, while maximizing the

25  person's dignity and independence and permit them to remain in

26  a familiar, noninstitutional, residential environment for as

27  long as possible.  Such services may be provided by facility

28  staff, volunteers, family, or friends, or through contractual

29  arrangements with a third party.

30         (5)(6)  "Applicant" means an individual owner,

31  corporation, partnership, firm, association, or governmental


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  1  entity that applies any facility owner, or if a business

  2  entity, a person appointed by such entity to make application

  3  for a license.

  4         (7)  "Assistance with activities of daily living" means

  5  direct physical assistance with activities of daily living as

  6  defined in subsection (1).

  7         (6)  "Assisted living facility" means any building or

  8  buildings, section or distinct part of a building, private

  9  home, boarding home, home for the aged, or other residential

10  facility, whether operated for profit or not, which undertakes

11  through its ownership or management to provide housing, meals,

12  and one or more personal services for a period exceeding 24

13  hours to one or more adults who are not relatives of the owner

14  or administrator.

15         (7)(8)  "Chemical restraint" means a pharmacologic drug

16  that physically limits, restricts, or deprives an individual

17  of movement or mobility, and is used for discipline or

18  convenience and not required for the treatment of medical

19  symptoms.

20         (8)(9)  "Community living support plan" means a written

21  document prepared by a mental health resident and the

22  resident's mental health case manager of that resident in

23  consultation with the administrator of an assisted living the

24  facility with a limited mental health license or the

25  administrator's designee. A copy must be provided to the

26  administrator. The plan must include information about the

27  supports, services, and special needs of the resident which

28  enable the resident to live in the assisted living facility

29  and a method by which facility staff can recognize and respond

30  to the signs and symptoms particular to that resident which

31  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.

31


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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.  Effective January 1, 1999, subsection (1)

25  of section 400.4075, Florida Statutes, is amended to read:

26         400.4075  Limited mental health license.--An assisted

27  living facility that serves three or more mental health

28  residents must obtain a limited mental health license.

29         (1)  To obtain a limited mental health license, a

30  facility must hold a standard license as an assisted living

31  facility, must not have any current uncorrected deficiencies


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  1  or violations, and must ensure that, within 6 months after

  2  receiving a limited mental health license, the facility

  3  administrator and the staff of the facility who are in direct

  4  contact with mental health residents must complete training of

  5  no less than 6 hours related to their duties. This training

  6  will be provided by or approved by the Department of Children

  7  and Family Services.

  8         Section 5.  Section 400.408, Florida Statutes, is

  9  amended to read:

10         400.408  Unlicensed facilities; referral of person for

11  residency to unlicensed facility; penalties penalty;

12  verification of licensure status.--

13         (1)(a)  It is unlawful to own, operate, or maintain an

14  assisted living facility without obtaining a license under

15  this part.

16         (b)  Except as provided under paragraph (d), any person

17  who owns, operates, or maintains an unlicensed assisted living

18  facility commits a felony of the third degree, punishable as

19  provided in s. 775.082, s. 775.083, or s. 775.084. Application

20  for licensure within 10 working days after notification shall

21  be an affirmative defense to this felony violation.

22         (c)  Any person found guilty of violating paragraph (a)

23  a second or subsequent time, commits a felony of the second

24  degree, punishable as provided under s. 775.082, s. 775.083,

25  or s. 775.084.

26         (d)  Any person who owns, operates, or maintains an

27  unlicensed assisted living facility due to a change in this

28  part or a modification in department rule within 6 months

29  after the effective date of such change and who, within 10

30  working days after receiving notification from the agency,

31  fails to cease operation or apply for a license under this


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  1  part commits a felony of the third degree, punishable as

  2  provided in s. 775.082, s. 775.083, or s. 775.084.

  3         (e)  Pursuant to this subsection, any facility that

  4  fails to apply for a license or cease operation after agency

  5  notification may be fined for each day of noncompliance

  6  pursuant to s. 400.419.

  7         (f)  When a licensee has an interest in more than one

  8  assisted living facility, and fails to license any one of

  9  these facilities, the agency may revoke the license or impose

10  a moratorium on any or all of the licensed facilities until

11  such time as the unlicensed facility applies for licensure or

12  ceases operation.

13         (g)  If the agency determines that an owner is

14  operating or maintaining an assisted living facility without

15  obtaining a license and determines that a condition exists in

16  the facility that poses a threat to the health, safety, or

17  welfare of a resident of the facility, the owner is subject to

18  the same actions and fines imposed against a licensed facility

19  as specified in ss. 400.414 and 400.419.

20         (h)  Any person aware of the operation of an unlicensed

21  assisted living facility must report that facility to the

22  agency. The agency shall provide to the department and to

23  elder information and referral providers a list, by county, of

24  licensed assisted living facilities, to assist persons who are

25  considering an assisted living facility placement in locating

26  a licensed facility.

27         (2)(1)  It is unlawful to knowingly refer a person for

28  residency to an unlicensed facility that provides services

29  that may only be provided by an assisted living facility; to

30  an assisted living facility the license of which is under

31  denial or has been suspended or revoked; or to an assisted


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  1  living a facility that has a moratorium on admissions.  Any

  2  person who violates this subsection commits is guilty of a

  3  noncriminal violation, punishable by a fine not exceeding $500

  4  as provided in s. 775.083.

  5         (a)  Any employee of the agency or department, or the

  6  Department of Children and Family Health and Rehabilitative

  7  Services, who knowingly refers a person for residency to an

  8  unlicensed facility; to a facility the license of which is

  9  under denial or has been suspended or revoked; or to a

10  facility that has a moratorium on admissions is subject to

11  disciplinary action by the agency or department, or the

12  Department of Children and Family Health and Rehabilitative

13  Services.

14         (b)  The employer of any person who is under contract

15  with the agency or department, or the Department of Children

16  and Family Health and Rehabilitative Services, and who

17  knowingly refers a person for residency to an unlicensed

18  facility; to a facility the license of which is under denial

19  or has been suspended or revoked; or to a facility that has a

20  moratorium on admissions shall be fined and required to

21  prepare a corrective action plan designed to prevent such

22  referrals.

23         (c)(2)  The agency shall provide the department and the

24  Department of Children and Family Health and Rehabilitative

25  Services with a list of licensed facilities within each county

26  and shall update the list at least quarterly monthly.

27         (d)(3)  At least annually, the agency shall notify, in

28  appropriate trade publications as defined by rule, physicians

29  licensed under chapter 458 or chapter 459 pursuant to chapter

30  458, osteopathic physicians licensed pursuant to chapter 459,

31  hospitals licensed under pursuant to part I of chapter 395,


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  1  and nursing home facilities licensed under pursuant to part II

  2  of this chapter, and employees of the agency or the

  3  department, or the Department of Children and Family Health

  4  and Rehabilitative Services, who are responsible having a

  5  responsibility for referring persons for residency, that it is

  6  unlawful to knowingly refer a person for residency to an

  7  unlicensed assisted living facility and shall notify them of

  8  the penalty for violating such prohibition. The department and

  9  the Department of Children and Family Services shall, in turn,

10  notify service providers under contract to the respective

11  departments who have responsibility for resident referrals to

12  facilities. Further, the notice must direct each noticed

13  facility and individual to contact the appropriate agency

14  office in order to verify the licensure status of any facility

15  prior to referring any person for residency. Each notice must

16  include the name, telephone number, and mailing address of the

17  appropriate office to contact.

18         Section 6.  Section 400.411, Florida Statutes, is

19  amended to read:

20         400.411  Initial application for license; provisional

21  license.--

22         (1)  Application for license shall be made to the

23  agency on forms furnished by it and shall be accompanied by

24  the appropriate license fee. The application shall contain

25  sufficient information, as required by rules of the

26  department, to establish that the applicant can provide

27  adequate care.

28         (2)  The applicant may be an individual owner,

29  corporation, partnership, firm, association, or governmental

30  entity.

31


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  1         (3)(2)  The application shall be signed by the

  2  applicant under oath and shall contain the following:

  3         (a)  The name, address, date of birth, and social

  4  security number of the applicant and the name by which the

  5  facility is to be known.  Pursuant thereto:

  6         1.  If the applicant is a firm, partnership, or

  7  association, the application shall contain the name, address,

  8  date of birth, and social security number of every member

  9  thereof.

10         2.  If the applicant is a corporation, the application

11  shall contain the corporation's its name and address, the

12  name, address, date of birth, and social security number of

13  each of its directors and officers, and the name and address

14  of each person having at least a 5-percent ownership

15  10-percent interest in the corporation.

16         (b)  The name and address of any professional service,

17  firm, association, partnership, or corporation that is to

18  provide goods, leases, or services to the facility for which

19  the application is made, if a 5-percent 10-percent or greater

20  interest in the service, firm, association, partnership, or

21  corporation is owned by a person whose name must be listed on

22  the application under paragraph (a).

23         (c)  Information sufficient that provides a source to

24  establish the suitable character, financial stability, and

25  competency of the applicant and of each person specified in

26  the application under subparagraph (a)1. or subparagraph (a)2.

27  who has at least a 10-percent interest in the firm,

28  partnership, association, or corporation and, if different

29  from the applicant, applicable, of the administrator, and

30  financial officer. including

31


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  1         (d)  The name and address of any long-term care

  2  facility with which the applicant, or administrator, or

  3  financial officer has been affiliated through ownership or

  4  employment within 5 years of the date of this license the

  5  application for a license; and a signed affidavit disclosing

  6  any financial or ownership interest that the applicant, or any

  7  person listed in paragraph (a) principal, partner, or

  8  shareholder thereof, holds or has held within the last 5 years

  9  in any other facility licensed under this part, or in any

10  other entity licensed by this the state or another state to

11  provide health or residential care, which facility or entity

12  closed or ceased to operate as a result of financial problems,

13  or has had a receiver appointed or a license denied, suspended

14  or revoked, or was subject to a moratorium on admissions, or

15  had an injunctive proceeding initiated against it.

16         (e)(d)  The names and addresses of other persons of

17  whom the agency may inquire as to the character, and

18  reputation, and financial responsibility of the owner and, if

19  different from the applicant, the administrator and financial

20  officer applicant and, if applicable, of the administrator.

21         (e)  The names and addresses of other persons of whom

22  the agency may inquire as to the financial responsibility of

23  the applicant.

24         (f)  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 currently

27  operated by the applicant or administrator and which provide

28  housing, meals, and personal services to residents adults.

29         (g)  Such other reasonable information as may be

30  required by the agency to evaluate the ability of the

31


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  1  applicant to meet the responsibilities entailed under this

  2  part.

  3         (g)(h)  The location of the facility for which a

  4  license is sought and documentation, signed by the appropriate

  5  local government official, which states that the applicant has

  6  met local zoning requirements.

  7         (h)(i)  The name, address, date of birth, social

  8  security number, education, and experience of the

  9  administrator if different from the applicant.

10         (4)(3)  The applicant shall furnish satisfactory proof

11  of financial ability to operate and conduct the facility in

12  accordance with the requirements of this part. A certificate

13  of authority, pursuant to chapter 651, may be provided as

14  proof of financial ability. An applicant applying for an

15  initial license shall submit a balance sheet setting forth the

16  assets and liabilities of the owner and a statement projecting

17  revenues, expenses, taxes, extraordinary items, and other

18  credits or charges for the first 12 months of operation of the

19  facility.

20         (5)(4)  If the applicant is a continuing care facility

21  certified under chapter 651, a copy of the facility's

22  certificate of authority must be provided offers continuing

23  care agreements, as defined in chapter 651, proof shall be

24  furnished that the applicant has obtained a certificate of

25  authority as required for operation under that chapter.

26         (6)(5)  The applicant shall provide proof of liability

27  insurance as defined in s. 624.605.

28         (7)(6)  If the applicant is a community residential

29  home, the applicant must provide proof that it has met the

30  requirements specified in chapter 419 shall apply to community

31  residential homes zoned single-family or multifamily.


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  1         (8)(7)  The applicant must provide the agency with

  2  proof of legal right to occupy the property.  This proof may

  3  include, but is not limited to, copies of recorded warranty

  4  deeds, or copies of lease or rental agreements, contracts for

  5  deeds, quitclaim deeds, or other such documentation.

  6         (9)(8)  The applicant must furnish proof that the

  7  facility has received a satisfactory firesafety inspection.

  8  The local fire marshal or other authority having jurisdiction

  9  or the State Fire Marshal must conduct the inspection within

10  30 days after the written request by the applicant. If an

11  authority having jurisdiction does not have a certified

12  firesafety inspector, the State Fire Marshal shall conduct the

13  inspection.

14         (10)  The applicant must furnish documentation of a

15  satisfactory sanitation inspection of the facility by the

16  county health department.

17         (11)(9)  A provisional license may be issued to an

18  applicant making initial application for licensure or making

19  application for a change of ownership.  A provisional license

20  shall be limited in duration to a specific period of time not

21  to exceed 6 months, as determined by the agency.

22         (12)(10)  No county or municipality shall issue an

23  occupational license which is being obtained for the purpose

24  of operating a facility regulated under this part without

25  first ascertaining that the applicant has been licensed to

26  operate such facility at the specified location or locations

27  by the agency.  The agency shall furnish to local agencies

28  responsible for issuing occupational licenses sufficient

29  instruction for making such the above-required determinations.

30         Section 7.  Section 400.414, Florida Statutes, is

31  amended to read:


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  1         400.414  Denial, revocation, or suspension of license;

  2  imposition of administrative fine; grounds.--

  3         (1)  The agency may deny, revoke, or suspend any a

  4  license issued under this part or impose an administrative

  5  fine in the manner provided in chapter 120. At the chapter 120

  6  hearing, the agency shall prove by a preponderance of the

  7  evidence that its actions are warranted.

  8         (2)  Any of the following actions by an assisted living

  9  facility or any facility employee a facility or its employee

10  shall be grounds for action by the agency against a licensee:

11         (a)  An intentional or negligent act seriously

12  affecting the health, safety, or welfare of a resident of the

13  facility.

14         (b)  The determination by the agency that the facility

15  owner, or administrator, or financial officer is not of

16  suitable character or competency, or that the owner lacks the

17  financial ability, to provide continuing adequate care to

18  residents, pursuant to the information obtained through s.

19  400.411, s. 400.417, or s. 400.434.

20         (c)  Misappropriation or conversion of the property of

21  a resident of the facility.

22         (d)  Failure to follow the criteria and procedures

23  provided under part I of chapter 394 relating to the

24  transportation, voluntary admission, and involuntary

25  examination of a facility resident.

26         (e)  One or more class I, three or more class II, or

27  five or more repeated or recurring identical or similar class

28  III violations of this part which were identified by the

29  agency within the last 2 years during the last biennial

30  inspection, monitoring visit, or complaint investigation and

31


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  1  which, in the aggregate, affect the health, safety, or welfare

  2  of the facility residents.

  3         (f)  A confirmed report of adult abuse, neglect, or

  4  exploitation, as defined in s. 415.102, which has been upheld

  5  following a chapter 120 hearing or a waiver of such

  6  proceedings where the perpetrator is an employee, volunteer,

  7  administrator, or owner, or otherwise has access to the

  8  residents of a facility, and the owner or administrator has

  9  not taken action to remove the perpetrator. Exemptions from

10  disqualification may be granted as set forth in s. 435.07. No

11  administrative action may be taken against the facility if the

12  perpetrator is granted an exemption.

13         (g)  Violation of a moratorium.

14         (h)  Failure of the license applicant, the licensee

15  during relicensure, or failure of a licensee that holds a

16  provisional an initial or change of ownership license, to meet

17  the minimum license standards or the requirements of rules

18  adopted under this part, or related rules, at the time of

19  license application or renewal.

20         (i)  A fraudulent statement or omission of any material

21  fact on an application for a license or any other document

22  required by the agency that is signed and notarized.

23         (j)  An intentional or negligent life-threatening act

24  in violation of the uniform firesafety standards for assisted

25  living facilities or other firesafety standards established by

26  the State Fire Marshal, that threatens the health, safety, or

27  welfare of a resident of a facility, as communicated to the

28  agency by the local State Fire Marshal, a local fire marshal,

29  or other authority having jurisdiction or the State Fire

30  Marshal.

31


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  1         (k)  Knowingly operating any unlicensed facility or

  2  providing without a license any service that must be licensed

  3  under this chapter.

  4

  5  Administrative proceedings challenging agency action under

  6  this subsection shall be reviewed on the basis of the facts

  7  and conditions that resulted in the agency action.

  8         (3)  Proceedings brought under paragraphs (2)(a), (c),

  9  (e), and (j) shall not be subject to de novo review.

10         (2)(4)  Upon notification by the local State Fire

11  Marshal, local fire marshal, or other authority having

12  jurisdiction or the State Fire Marshal, the agency may deny or

13  revoke the license of an assisted living a facility that fails

14  to correct cited fire code violations issued by the State Fire

15  Marshal, a local fire marshal, or other authority having

16  jurisdiction, that affect or threaten the health, safety, or

17  welfare of a resident of a facility.

18         (3)  The agency may deny a license to any applicant or

19  to any officer or board member of an applicant who is a firm,

20  corporation, partnership, or association or who owns 5 percent

21  or more of the facility, if the applicant, officer, or board

22  member has or had a 25 percent or greater financial or

23  ownership interest in any other facility licensed under this

24  part, or in any entity licensed by this state or another state

25  to provide health or residential care, which facility or

26  entity during the 5 years prior to the application for a

27  license closed due to financial inability to operate; had a

28  receiver appointed or a license denied, suspended, or revoked;

29  was subject to a moratorium on admissions; had an injunctive

30  proceeding initiated against it; or has an outstanding fine

31  assessed under this chapter.


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  1         (4)  The agency shall deny or revoke the license of an

  2  assisted living facility that has two or more class I

  3  violations that are similar or identical to violations

  4  identified by the agency during a survey, inspection,

  5  monitoring visit, or complaint investigation occurring within

  6  the previous 2 years.

  7         (5)  The agency may deny a license to an applicant who

  8  owns 25 percent or more of, or operates, a facility which,

  9  during the 5 years prior to the application for a license, has

10  had a license denied, suspended, or revoked pursuant to

11  subsection (2), or, during the 2 years prior to the

12  application for a license, has had a moratorium imposed on

13  admissions, has had an injunctive proceeding initiated against

14  it, has had a receiver appointed, was closed due to financial

15  inability to operate, or has an outstanding fine assessed

16  under this part.

17         (5)(6)  An action taken by the agency to suspend, deny,

18  or revoke a facility's license under this part, in which the

19  agency claims that the facility owner or an employee of the

20  facility has threatened the health, safety, or welfare of a

21  resident of the facility, shall, upon receipt of the

22  facility's request for a hearing, be heard by the Division of

23  Administrative Hearings of the Department of Management

24  Services within 120 days after the request for a hearing,

25  unless that time period is waived by both parties.  The

26  administrative law judge must render a decision within 30 days

27  after the hearing after receipt of a proposed recommended

28  order.

29         (6)(7)  The agency shall provide to the Division of

30  Hotels and Restaurants of the Department of Business and

31  Professional Regulation, on a monthly basis, a list of those


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  1  assisted living facilities which have had their licenses

  2  denied, suspended, or revoked or which are involved in an

  3  appellate proceeding pursuant to s. 120.60 related to the

  4  denial, suspension, or revocation of a license.

  5         (7)  Agency notification of license suspension,

  6  revocation, or denial of a license renewal shall be posted and

  7  visible to the public at the facility.

  8         Section 8.  Section 400.415, Florida Statutes, is

  9  amended to read:

10         400.415  Moratorium on admissions; notice.--The agency

11  may impose an immediate moratorium on admissions to any

12  assisted living facility if when the agency determines that

13  any condition in the facility presents a threat to the health,

14  safety, or welfare of the residents in the facility.

15         (1)  A facility the license of which is denied,

16  revoked, or suspended pursuant to as a result of a violation

17  of s. 400.414 may be subject to immediate imposition of a

18  moratorium on admissions to run concurrently with licensure

19  denial, revocation, or suspension.

20         (2)  When a moratorium is placed on a facility, notice

21  of the moratorium shall be posted and visible to the public at

22  the facility until the moratorium is lifted.

23         (3)  The department may by rule establish conditions

24  that constitute grounds for imposing a moratorium on a

25  facility and procedures for imposing and lifting a moratorium,

26  as necessary to administer this section.

27         Section 9.  Section 400.417, Florida Statutes, is

28  amended to read:

29         400.417  Expiration of license; renewal; conditional

30  license.--

31


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  1         (1)  Biennial licenses issued for the operation of a

  2  facility, unless sooner suspended or revoked, shall expire

  3  automatically 2 years from the date of issuance. Limited

  4  nursing, extended congregate care, and limited mental health

  5  licenses shall expire at the same time as the facility's

  6  standard license, regardless of when issued. The agency shall

  7  notify the facility by certified mail at least 120 days prior

  8  to the expiration of the license that a renewal license

  9  relicensure is necessary to continue operation.  Ninety days

10  prior to the expiration date, an application for renewal shall

11  be submitted to the agency.  Fees must be pro-rated. A license

12  shall be renewed upon the filing of an application on forms

13  furnished by the agency if the applicant has first met the

14  requirements established under this part and all rules

15  promulgated under this part. The failure to file a timely

16  renewal application shall result in a late fee charged to the

17  facility in an amount equal to 50 percent of the current fee

18  in effect on the last preceding regular renewal date.  Late

19  fees shall be deposited into the Health Care Trust Fund as

20  provided in s. 400.418.  The facility shall file with the

21  application satisfactory proof of ability to operate and

22  conduct the facility in accordance with the requirements of

23  this part.

24         (2)  A license shall be renewed within 90 days upon the

25  timely filing of an application on forms furnished by the

26  agency and the provision of satisfactory proof of ability to

27  operate and conduct the facility in accordance with the

28  requirements of this part and adopted rules, including An

29  applicant for renewal of a license must furnish proof that the

30  facility has received a satisfactory firesafety inspection,

31  conducted by the local fire marshal or other authority having


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  1  jurisdiction or the State Fire Marshal, within the preceding

  2  12 months.

  3         (3)  An applicant for renewal of a license who has

  4  complied on the initial license application with the

  5  provisions of s. 400.411 with respect to proof of financial

  6  ability to operate shall not be required to provide further

  7  proof of financial ability on renewal applications unless the

  8  facility or any other facility owned or operated in whole or

  9  in part by the same person or business entity has demonstrated

10  financial instability as provided under s. 400.447(2)

11  evidenced by bad checks, delinquent accounts, or nonpayment of

12  withholding taxes, utility expenses, or other essential

13  services or unless the agency suspects that the facility is

14  not financially stable as a result of the annual survey or

15  complaints from the public or a report from the State

16  Long-Term Care Ombudsman Council.  Each facility must shall

17  report to the agency any adverse court action concerning the

18  facility's financial viability, within 7 days after its

19  occurrence.  The agency shall have access to books, records,

20  and any other financial documents maintained by the facility

21  to the extent necessary to determine the facility's financial

22  stability carry out the purpose of this section.  A license

23  for the operation of a facility shall not be renewed if the

24  licensee has any outstanding fines assessed pursuant to this

25  part which are in final order status.

26         (4)(2)  A licensee against whom a revocation or

27  suspension proceeding is pending at the time of license

28  renewal may be issued a conditional license effective until

29  final disposition by the agency of such proceeding.  If

30  judicial relief is sought from the final disposition, the

31


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  1  court having jurisdiction may issue a conditional license for

  2  the duration of the judicial proceeding.

  3         (5)(3)  A conditional license may be issued to an

  4  applicant for license renewal if when the applicant fails to

  5  meet all standards and requirements for licensure.  A

  6  conditional license issued under this subsection shall be

  7  limited in duration to a specific period of time not to exceed

  8  6 months, as determined by the agency, and shall be

  9  accompanied by an agency-approved approved plan of correction.

10         (6)  The department may by rule establish renewal

11  procedures, identify forms, and specify documentation

12  necessary to administer this section.

13         Section 10.  Section 400.4174, Florida Statutes, is

14  amended to read:

15         400.4174  Reports of abuse in facilities.--When an

16  employee, volunteer, administrator, or owner of a facility is

17  the subject of has a confirmed report of adult abuse, neglect,

18  or exploitation, as defined in s. 415.102, or child abuse or

19  neglect, as defined in s. 415.503, and the protective

20  investigator knows that the individual is an employee,

21  volunteer, administrator, or owner of a facility, the agency

22  shall be notified of the confirmed report.

23         Section 11.  Section 400.4176, Florida Statutes, is

24  amended to read:

25         400.4176  Notice of change of administrator.--If,

26  during the period for which a license is issued, the owner

27  changes administrators, the owner must notify the agency of

28  the change within 10 45 days thereof and must provide

29  documentation within 90 days that the new administrator has

30  completed the applicable core educational requirements under

31  s. 400.452.  Background screening shall be completed on any


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  1  new administrator to establish that the individual is of

  2  suitable character as specified in s. 400.411 ss.

  3  400.411(2)(c) and 400.456.

  4         Section 12.  Subsection (1) of section 400.418, Florida

  5  Statutes, is amended to read:

  6         400.418  Disposition of fees and administrative

  7  fines.--

  8         (1)  Income from license fees, inspection fees, late

  9  fees, and administrative fines generated pursuant to ss.

10  400.407, 400.408, 400.417, 400.419, and 400.431 shall be

11  deposited in the Health Care Trust Fund administered by the

12  agency.  Such funds shall be directed to and used by the

13  agency for the following purposes:

14         (a)  Up to 50 percent of the trust funds accrued each

15  fiscal year under this part may be used to offset the expenses

16  of receivership, pursuant to s. 400.422, if the court

17  determines that the income and assets of the facility are

18  insufficient to provide for adequate management and operation.

19         (b)  An amount of $5,000 of the trust funds accrued

20  each year under this part shall be allocated to pay for

21  inspection-related physical and mental health examinations

22  requested by the agency pursuant to s. 400.426 for residents

23  who are either recipients of supplemental security income or

24  have monthly incomes not in excess of the maximum combined

25  federal and state cash subsidies available to supplemental

26  security income recipients, as provided for in s. 409.212.

27  Such funds shall only be used where the resident is ineligible

28  for Medicaid.

29         (c)  Any trust funds accrued each year under this part

30  and not used for the purposes specified in paragraphs (a) and

31  (b) shall be used to offset the costs of the licensure


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  1  program, including the costs of conducting background

  2  investigations, verifying information submitted, defraying the

  3  costs of processing the names of applicants, and conducting

  4  inspections and monitoring visits pursuant to this part.

  5         Section 13.  Section 400.419, Florida Statutes, is

  6  amended to read:

  7         400.419  Violations; administrative fines penalties.--

  8         (1)(a)  If the agency determines that a facility is not

  9  in compliance with standards promulgated pursuant to the

10  provisions of this part, including the failure to report

11  evidence of the facility's financial instability or the

12  operation of a facility without a license, the agency, as an

13  alternative to or in conjunction with an administrative action

14  against a facility, shall make a reasonable attempt to discuss

15  each violation and recommended corrective action with the

16  owner or administrator of the facility, prior to written

17  notification thereof.  The agency, instead of fixing a period

18  within which the facility shall enter into compliance with

19  standards, may request a plan of corrective action from the

20  facility which demonstrates a good faith effort to remedy each

21  violation by a specific date, subject to the approval of the

22  agency.

23         (b)  Any facility owner or administrator found in

24  violation of this part, including any individual operating a

25  facility without a license, shall be subject to a fine, set

26  and levied by the agency.

27         (c)  Each day during which any person violates any such

28  provision after the date fixed for termination of the

29  violation, as ordered by the agency, constitutes an

30  additional, separate, and distinct violation.

31


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  1         (d)  Any action taken to correct a violation shall be

  2  documented in writing by the administrator of the facility and

  3  verified through followup visits by licensing personnel of the

  4  agency.  The agency may impose a fine and, in the case of an

  5  owner-operated facility, revoke a facility's license when a

  6  facility administrator fraudulently misrepresents action taken

  7  to correct a violation.

  8         (e)  If a facility desires to appeal any agency action

  9  under this section, it shall send a written request for a

10  hearing to the agency within 15 days of receipt by certified

11  mail of notice of the action of the agency. If the fine is

12  upheld, the violator shall pay the fine, plus interest at the

13  legal rate as specified in s. 687.01, for each day beyond the

14  date set by the agency for payment of the fine.

15         (2)  In determining if a penalty is to be imposed and

16  in fixing the amount of the penalty to be imposed, if any, for

17  a violation, the agency shall consider the following factors:

18         (a)  The gravity of the violation, including the

19  probability that death or serious physical or emotional harm

20  to a resident will result or has resulted, the severity of the

21  action or potential harm, and the extent to which the

22  provisions of the applicable statutes or rules were violated.

23         (b)  Actions taken by the owner or administrator to

24  correct violations.

25         (c)  Any previous violations.

26         (d)  The financial benefit to the facility of

27  committing or continuing the violation.

28         (e)  The licensed capacity of the facility.

29         (1)(3)  Each violation of this part and adopted rules

30  shall be classified according to the nature of the violation

31  and the gravity of its probable effect on facility residents.


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  1  The agency shall indicate the classification of each violation

  2  on the written face of the notice of the violation as follows:

  3         (a)  Class "I" violations are those conditions or

  4  occurrences related to the operation and maintenance of a

  5  facility or to the personal care of residents which the agency

  6  determines present an imminent danger to the residents or

  7  guests of the facility or a substantial probability that death

  8  or serious physical or emotional harm would result therefrom.

  9  The condition or practice constituting a class I violation

10  shall be abated or eliminated within 24 hours, unless a fixed

11  period, as determined by the agency, is required for

12  correction.  A class I violation is subject to an

13  administrative fine a civil penalty in an amount not less than

14  $1,000 and not exceeding $10,000 $5,000 for each violation.  A

15  fine may be levied notwithstanding the correction of the

16  violation.

17         (b)  Class "II" violations are those conditions or

18  occurrences related to the operation and maintenance of a

19  facility or to the personal care of residents which the agency

20  determines directly threaten the physical or emotional health,

21  safety, or security of the facility residents, other than

22  class I violations. A class II violation is subject to an

23  administrative fine a civil penalty in an amount not less than

24  $500 and not exceeding $5,000 $1,000 for each violation.  A

25  citation for a class II violation shall specify the time

26  within which the violation is required to be corrected.  If a

27  class II violation is corrected within the time specified, no

28  fine civil penalty may be imposed, unless it is a repeated

29  offense.

30         (c)  Class "III" violations are those conditions or

31  occurrences related to the operation and maintenance of a


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  1  facility or to the personal care of residents which the agency

  2  determines indirectly or potentially threaten the physical or

  3  emotional health, safety, or security of facility residents,

  4  other than class I or class II violations.  A class III

  5  violation is subject to an administrative fine a civil penalty

  6  of not less than $100 and not exceeding $1,000 $500 for each

  7  violation.  A citation for a class III violation shall specify

  8  the time within which the violation is required to be

  9  corrected.  If a class III violation is corrected within the

10  time specified, no fine civil penalty may be imposed, unless

11  it is a repeated offense.

12         (d)  Class "IV" violations are those conditions or

13  occurrences related to the operation and maintenance of a

14  building or to required reports, forms, or documents that do

15  not have the potential of negatively affecting residents.

16  These violations are of a type that the agency determines do

17  not threaten the health, safety, or security of residents of

18  the facility.  A facility that does not correct a class IV

19  violation within the time limit specified in the

20  agency-approved corrective action plan is subject to an

21  administrative fine a civil penalty of not less than $50 nor

22  more than $200 for each violation.  Any class IV violation

23  that is corrected during the time an agency survey is being

24  conducted will be identified as an agency finding and not as a

25  violation.

26         (2)(4)  The agency may set and levy a fine not to

27  exceed $1,000 $500 for each violation which cannot be

28  classified according to subsection (1) (3).  In no event may

29  Such fines fine in the aggregate may not exceed $10,000 per

30  survey $5,000.

31


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  1         (3)  In determining if a penalty is to be imposed and

  2  in fixing the amount of the fine, the agency shall consider

  3  the following factors:

  4         (a)  The gravity of the violation, including the

  5  probability that death or serious physical or emotional harm

  6  to a resident will result or has resulted, the severity of the

  7  action or potential harm, and the extent to which the

  8  provisions of the applicable laws or rules were violated.

  9         (b)  Actions taken by the owner or administrator to

10  correct violations.

11         (c)  Any previous violations.

12         (d)  The financial benefit to the facility of

13  committing or continuing the violation.

14         (e)  The licensed capacity of the facility.

15         (4)  Each day of continuing violation after the date

16  fixed for termination of the violation, as ordered by the

17  agency, constitutes an additional, separate, and distinct

18  violation.

19         (5)  Any action taken to correct a violation shall be

20  documented in writing by the owner or administrator of the

21  facility and verified through followup visits by agency

22  personnel. The agency may impose a fine and, in the case of an

23  owner-operated facility, revoke or deny a facility's license

24  when a facility administrator fraudulently misrepresents

25  action taken to correct a violation.

26         (6)  For fines that are upheld following administrative

27  or judicial review, the violator shall pay the fine, plus

28  interest at the rate as specified in s. 55.03, for each day

29  beyond the date set by the agency for payment of the fine.

30         (7)  Except as provided in subsection (8), any facility

31  that continues to operate without having applied for a license


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  1  10 days after agency notification is subject to a $1,000 fine.

  2  Each day beyond 20 days after agency notification constitutes

  3  a separate violation and the facility is subject to a fine of

  4  $500 per day.

  5         (8)  Unlicensed facilities whose owner or administrator

  6  concurrently operates a licensed facility, has previously

  7  operated a licensed facility, or has been employed in a

  8  licensed facility shall immediately be subject to an

  9  administrative fine of $5,000 upon agency notification. Each

10  day that a facility continues to operate without having

11  applied for a license within 10 working days after agency

12  notification constitutes a separate violation, and such

13  facility shall be subject to a fine of $500 per day

14  retroactive to the date of agency notification.

15         (9)  Any facility whose owner fails to apply for a

16  change-of-ownership license in accordance with s. 400.412 and

17  operates the facility under the new ownership is subject to a

18  fine not to exceed $5,000.

19         (10)  In addition to any administrative fines imposed,

20  the agency may assess a survey fee, equal to the lesser of one

21  half of the facility's biennial license and bed fee or $500,

22  to cover the cost of conducting initial complaint

23  investigations that result in the finding of a violation that

24  was the subject of the complaint or monitoring visits

25  conducted under s. 400.428(3)(c) to verify the correction of

26  the violations.

27         (11)  The agency, as an alternative to or in

28  conjunction with an administrative action against a facility

29  for violations of this part and adopted rules, shall make a

30  reasonable attempt to discuss each violation and recommended

31  corrective action with the owner or administrator of the


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  1  facility, prior to written notification. The agency, instead

  2  of fixing a period within which the facility shall enter into

  3  compliance with standards, may request a plan of corrective

  4  action from the facility which demonstrates a good-faith

  5  effort to remedy each violation by a specific date, subject to

  6  the approval of the agency.

  7         (12)(5)  Administrative fines Civil penalties paid by

  8  any facility under this section the provisions of subsection

  9  (3) shall be deposited into the Health Care Trust Fund and

10  expended as provided in s. 400.418.

11         (13)(6)  The agency shall develop and disseminate an

12  annual list of all facilities sanctioned or fined $5,000 or

13  more in excess of $500 for violations of state standards, the

14  number and class of violations involved, the penalties

15  imposed, and the current status of cases. The list shall be

16  disseminated, at no charge, to the Department of Elderly

17  Affairs, the Department of Health and Rehabilitative Services,

18  the Department of Children and Family Services, the area

19  agencies on aging, the Statewide Human Rights Advocacy

20  Committee, and the state and district nursing home and

21  long-term care facility ombudsman councils. The Department of

22  Children and Family Services shall disseminate the list to

23  service providers under contract to the department who are

24  responsible for referring persons to a facility for residency.

25  The agency may charge a fee commensurate with the cost of

26  printing and postage to other interested parties requesting a

27  copy of this list.

28         Section 14.  Subsection (2) of section 400.4195,

29  Florida Statutes, is amended to read:

30         400.4195  Rebates prohibited; penalties.--

31


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  1         (2)  A violation of this section shall be considered

  2  patient brokering and is punishable as provided in s. 817.505

  3  The department, in consultation with the agency, shall adopt

  4  rules which assess administrative penalties for acts

  5  prohibited by subsection (1).

  6         Section 15.  Paragraph (a) of subsection (1) of section

  7  400.422, Florida Statutes, is amended to read:

  8         400.422  Receivership proceedings.--

  9         (1)  As an alternative to or in conjunction with an

10  injunctive proceeding, the agency may petition a court of

11  competent jurisdiction for the appointment of a receiver, if

12  suitable alternate placements are not available, when any of

13  the following conditions exist:

14         (a)  The facility is operating without a license and

15  refuses to make application for a license as required by ss.

16  s. 400.407 and 400.408.

17         Section 16.  Section 400.4256, Florida Statutes, is

18  created to read:

19         400.4256  Assistance with self-administration of

20  medication.--

21         (1)  For the purposes of this section, the term:

22         (a)  "Informed consent" means advising the resident, or

23  the resident's surrogate, guardian, or attorney in fact, that

24  an assisted living facility is not required to have a licensed

25  nurse on staff, that the resident may be receiving assistance

26  with self-administration of medication from an unlicensed

27  person, and that such assistance, if provided by an unlicensed

28  person, will or will not be overseen by a licensed nurse.

29         (b)  "Unlicensed person" means an individual not

30  currently licensed to practice nursing or medicine who is

31  employed by or under contract to an assisted living facility


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  1  and who has received training with respect to assisting with

  2  the self-administration of medication in an assisted living

  3  facility as provided under s. 400.452 prior to providing such

  4  assistance as described in this section.

  5         (2)  Residents who are capable of self-administering

  6  their own medications without assistance shall be encouraged

  7  and allowed to do so. However, an unlicensed person may,

  8  consistent with a dispensed prescription's label or the

  9  package directions of an over-the-counter medication, assist a

10  resident whose condition is medically stable with the

11  self-administration of routine, regularly scheduled

12  medications that are intended to be self-administered.

13  Assistance with self-medication by an unlicensed person may

14  occur only upon a documented request by, and the written

15  informed consent of, a resident or the resident's surrogate,

16  guardian, or attorney in fact. For the purposes of this

17  section, self-administered medications include both legend and

18  over-the-counter oral dosage forms, topical dosage forms and

19  topical opthalmic, otic, and nasal dosage forms including

20  solutions, suspensions, sprays, and inhalers.

21         (3)  Assistance with self-administration of medication

22  includes:

23         (a)  Taking the medication, in its previously

24  dispensed, properly labeled container, from where it is

25  stored, and bringing it to the resident.

26         (b)  In the presence of the resident, reading the

27  label, opening the container, removing a prescribed amount of

28  medication from the container, and closing the container.

29         (c)  Placing an oral dosage in the resident's hand or

30  placing the dosage in another container and helping the

31  resident by lifting the container to his or her mouth.


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  1         (d)  Applying topical medications.

  2         (e)  Returning the medication container to proper

  3  storage.

  4         (f)  Keeping a record of when a resident receives

  5  assistance with self-administration under this section.

  6         (4)  Assistance with self-administration does not

  7  include:

  8         (a)  Mixing, compounding, converting, or calculating

  9  medication doses, except for measuring a prescribed amount of

10  liquid medication or breaking a scored tabled or crushing a

11  tablet as prescribed.

12         (b)  The preparation of syringes for injection or the

13  administration of medications by any injectable route.

14         (c)  Administration of medications through intermittent

15  positive pressure breathing machines or a nebulizer.

16         (d)  Administration of medications by way of a tube

17  inserted in a cavity of the body.

18         (e)  Administration of parenteral preparations.

19         (f)  Irrigations or debriding agents used in the

20  treatment of a skin condition.

21         (g)  Rectal, urethral, or vaginal preparations.

22         (h)  Medications ordered by the physician or health

23  care professional with prescriptive authority to be given "as

24  needed," unless the order is written with specific parameters

25  that preclude independent judgment on the part of the

26  unlicensed person, and at the request of a competent resident.

27         (i)  Medications for which the time of administration,

28  the amount, the strength of dosage, the method of

29  administration, or the reason for administration requires

30  judgment or discretion on the part of the unlicensed person.

31


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  1         (5)  Assistance with the self-administration of

  2  medication by an unlicensed person as described in this

  3  section shall not be considered administration as defined in

  4  s. 465.003.

  5         (6)  The department may by rule establish facility

  6  procedures and interpret terms as necessary to implement this

  7  section.

  8         Section 17.  Subsection (3) of section 400.428, Florida

  9  Statutes, is amended to read:

10         400.428  Resident bill of rights.--

11         (3)(a)  The agency shall conduct a survey an inspection

12  to determine general compliance with facility standards and

13  compliance with residents' rights as a prerequisite to initial

14  or renewal licensure or licensure renewal.

15         (b)  In order to determine whether the facility is

16  adequately protecting residents' rights, the biennial survey

17  inspection of the facility shall include private informal

18  conversations with a sample of residents and consultation with

19  the ombudsman council in the planning and service area, as

20  defined in part II, in which the facility is located to

21  discuss residents' experiences within the facility with

22  respect to rights specified in this section and general

23  compliance with standards.

24         (c)  During any calendar year in which no survey

25  inspection is conducted, the agency shall conduct at least one

26  monitoring visit of each facility cited in the previous year

27  for a class I or class II violation, or more than three

28  uncorrected class III violations, that led to a conditional

29  license or a moratorium on admissions.

30         (d)  The agency may conduct periodic followup

31  inspections as necessary to monitor the compliance of


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  1  facilities with a history of any class I, class II, or class

  2  III violations that threaten the health, safety, or security

  3  of residents.

  4         (e)(d)  The agency may conduct complaint investigations

  5  as warranted to investigate any allegations of noncompliance

  6  with requirements required under this part or rules adopted

  7  promulgated under this part.

  8         Section 18.  Section 400.442, Florida Statutes, is

  9  amended to read:

10         400.442  Pharmacy and dietary services.--

11         (1)  Notwithstanding s. 400.419, Any assisted living

12  facility in which the agency has documented a class I or class

13  II deficiency or uncorrected class III deficiencies regarding

14  medicinal drugs or over-the-counter preparations, including

15  their storage, use, delivery, or administration, or dietary

16  services, or both, during a biennial survey or a monitoring

17  visit or an investigation in response to a complaint, shall,

18  in addition to or as an alternative to any penalties imposed

19  under s. 400.419, be required to employ the consultant

20  services of a licensed pharmacist, a licensed registered

21  nurse, or a registered or licensed dietitian, or both, as

22  applicable.  The consultant shall provide onsite consultation

23  and shall continue with, at a minimum, provide onsite

24  quarterly consultation until the inspection team from the

25  agency determines that such consultation services are no

26  longer required.

27         (2)  A corrective-action plan for deficiencies related

28  to assistance with the self-administration of medication or

29  the administration of medication must be developed and

30  implemented by the facility within 48 hours after notification

31


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  1  of such deficiency, or sooner if the deficiency is determined

  2  by the agency to be life-threatening.

  3         (3)(2)  The agency shall employ at least two

  4  pharmacists licensed pursuant to chapter 465 among its

  5  personnel who biennially inspect assisted living facilities

  6  licensed under this part, to participate in biennial

  7  inspections or consult with the agency regarding deficiencies

  8  relating to medicinal drugs or over-the-counter preparations,

  9  including, but not limited to, their storage, use, delivery,

10  or administration.  A corrective action plan for deficiencies

11  related to the administration or supervision of medication

12  must be developed and implemented within 48 hours after

13  notification of the deficiency, or sooner if the deficiency is

14  determined by the agency to be life threatening.

15         Section 19.  Section 400.452, Florida Statutes, is

16  amended to read:

17         400.452  Staff training and educational programs; core

18  educational requirement.--

19         (1)  The department shall provide, or cause to be

20  provided, training and educational programs for the

21  administrators and such other assisted living facility staff

22  as are defined by the department to better enable them to

23  appropriately respond to the needs of residents, to maintain

24  resident care and facility standards, and to meet licensure

25  requirements.

26         (2)  The department shall also establish a core

27  educational requirement to be used in these programs.

28  Successful completion of the core educational requirement must

29  include successful completion of a competency test. Programs

30  must be provided by the department or by a provider approved

31


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  1  by the department at least quarterly.  The core educational

  2  requirement must cover at least the following topics:

  3         (a)  State law and rules relating to on assisted living

  4  facilities, including lifesafety requirements and procedures.

  5         (b)  Resident rights and identifying and reporting

  6  abuse, neglect, and exploitation.

  7         (c)  Special needs of elderly persons, persons with

  8  mental illness, and persons with developmental disabilities

  9  and how to meet those needs.

10         (d)  Nutrition and food service, including acceptable

11  sanitation practices for preparing, storing, and serving food.

12         (e)  Medication management, recordkeeping, and proper

13  techniques for assisting residents with self-administered

14  medication, including recordkeeping.

15         (f)  Firesafety requirements, including fire evacuation

16  drill procedures and other emergency procedures drills.

17         (g)  Care of persons with Alzheimer's disease and other

18  related disorders.

19         (3)  Such a program must be available at least

20  quarterly in each planning and service area district of the

21  department of Health and Rehabilitative Services.  The

22  competency test must be developed by the department in

23  conjunction with the agency and providers and must be

24  available for use by January 1, 1997. Beginning July 1, 1997,

25  A new facility administrator must complete the core

26  educational requirement including the competency test within 3

27  months after being employed as an administrator.  Failure to

28  complete a core educational requirement specified in this

29  subsection is a violation of this part and subjects the

30  violator to an administrative fine a penalty as prescribed in

31  s. 400.419. Administrators licensed in accordance with chapter


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  1  468, part II, are exempt from this requirement. Other licensed

  2  professionals may be exempted, as determined by the department

  3  by rule.

  4         (4)  Administrators are required to participate in

  5  continuing education for a minimum of 12 contact hours every 2

  6  years as specified by rule of the department.

  7         (5)  Staff involved with the management of medications

  8  and assisting with the self-administration of medications

  9  under s. 400.4256 must complete a minimum of 4 hours of

10  training pursuant to a curriculum developed by the department

11  and provided by a registered nurse, licensed pharmacist, or

12  department staff. Administrators and staff of facilities more

13  than 10 percent of whose residents are mental health residents

14  shall participate in training in the care and supervision of

15  such residents as specified by rule of the department.

16         (6)  Other facility staff shall participate in training

17  relevant to their job duties as specified by rule of the

18  department.

19         (7)  Any facility more than 90 percent of whose

20  residents receive monthly optional supplementation payments is

21  not required to pay for the training and education programs

22  provided under this section. A facility that has one or more

23  such residents shall pay a reduced fee that is proportional to

24  the percentage of such residents in the facility. A facility

25  that does not have any residents who receive monthly optional

26  supplementation payments must pay a reasonable fee, as

27  established by the department, for such training and education

28  programs. A facility that has one or more such residents shall

29  pay a reduced fee that is proportional to the percentage of

30  such residents in the facility. Any facility more than 90

31  percent of whose residents receive monthly optional state


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  1  supplementation payments is not required to pay for the

  2  training and continuing education programs required under this

  3  section.

  4         (8)  If the department or the agency determines that

  5  there are problems in a facility that could be reduced through

  6  specific staff training or education beyond that already

  7  required under this section, the department or the agency may

  8  require, and provide, or cause to be provided, the training or

  9  education of any personal care staff in the facility.

10         (9)  The department shall adopt rules to establish

11  training programs, standards and curriculum for training,

12  staff training requirements, procedures for approving training

13  programs, and training fees.

14         Section 20.  Paragraph (c) is added to subsection (2)

15  of section 400.474, Florida Statutes, to read:

16         400.474  Denial, suspension, revocation of license;

17  injunction; grounds.--

18         (2)  Any of the following actions by a home health

19  agency or its employee is grounds for disciplinary action by

20  the Agency for Health Care Administration:

21         (c)  Knowingly providing home health services in an

22  unlicensed assisted living facility or unlicensed adult

23  family-care home, unless the home health agency or employee

24  reports the unlicensed facility or home to the agency within

25  72 hours after providing the services.

26         Section 21.  Subsection (2) of section 400.618, Florida

27  Statutes, is amended to read:

28         400.618  Definitions.--As used in this part ss.

29  400.616-400.629, the term:

30         (2)  "Adult family-care home" means a full-time,

31  family-type living arrangement, in a private home, under which


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  1  a person who owns or rents the home provides or persons

  2  provide, for profit or not for profit, room, board, and one or

  3  more personal services, on a 24-hour basis as appropriate for

  4  the level of functional impairment, for no more than five aged

  5  persons or disabled adults who are not relatives. The

  6  following family-type living arrangements establishments are

  7  not required to be licensed as an adult family-care home

  8  homes:

  9         (a)  An arrangement whereby the person who owns or

10  rents the home provides room, board, and establishment that

11  provides personal services for not more than two three or

12  fewer adults who do not receive optional state supplementation

13  under s. 409.212, but that does not hold itself out to the

14  public to be an establishment that regularly provides such

15  services. The person who provides the housing, meals, and

16  personal services must own or rent the home and reside

17  therein.

18         (b)  An arrangement whereby the person who owns or

19  rents the home provides room, board, and establishment in

20  which a person or persons provide personal services only to

21  their relatives.

22         (c)  An establishment that is licensed as an assisted

23  living facility under part III.

24         Section 22.  Paragraph (h) of subsection (3) of section

25  408.036, Florida Statutes, is amended to read:

26         408.036  Projects subject to review.--

27         (3)  EXEMPTIONS.--Upon request, supported by such

28  documentation as the agency requires, the agency shall grant

29  an exemption from the provisions of subsection (1):

30         (h)  For the establishment of a Medicare-certified home

31  health agency by a facility certified under chapter 651; a


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    1998 Legislature                 CS for SB 1960, 1st Engrossed



  1  retirement community, as defined in s. 400.404(2)(g) s.

  2  400.404(2)(e); or a residential facility that serves only

  3  retired military personnel, their dependents, and the

  4  surviving dependents of deceased military personnel.

  5  Medicare-reimbursed home health services provided through such

  6  agency shall be offered exclusively to residents of the

  7  facility or retirement community or to residents of facilities

  8  or retirement communities owned, operated, or managed by the

  9  same corporate entity. Each visit made to deliver

10  Medicare-reimbursable home health services to a home health

11  patient who, at the time of service, is not a resident of the

12  facility or retirement community shall be a deceptive and

13  unfair trade practice and constitutes a violation of ss.

14  501.201-501.213.

15

16  A request for exemption under this subsection may be made at

17  any time and is not subject to the batching requirements of

18  this section.

19         Section 23.  Subsection (3) is added to section

20  394.4574, Florida Statutes, to read:

21         394.4574  Department responsibilities for a mental

22  health resident who resides in an assisted living facility

23  that holds a limited mental health license.--

24         (3)  The Secretary of Children and Family Services, in

25  consultation with the Agency for Health Care Administration,

26  shall annually require each district administrator to develop,

27  with community input, detailed plans that demonstrate how the

28  district will ensure the provision of state-funded mental

29  health and substance-abuse-treatment services to residents of

30  assisted living facilities that hold a limited mental health

31  license. These plans must be consistent with the alcohol, drug


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    ENROLLED

    1998 Legislature                 CS for SB 1960, 1st Engrossed



  1  abuse, and mental health district plan developed pursuant to

  2  s. 394.75 and must address case-management services; access to

  3  consumer-operated drop-in centers; access to services during

  4  evenings, weekends, and holidays; supervision of the clinical

  5  needs of the residents; and access to emergency psychiatric

  6  care.

  7         Section 24.  This act shall take effect October 1,

  8  1998.

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