House Bill 3667e1
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CS/HB 3667, First Engrossed
1 A bill to be entitled
2 An act relating to assisted living facilities
3 and adult family-care homes; amending s.
4 400.402, F.S.; revising definitions; amending
5 s. 400.404, F.S.; providing additional
6 exemptions from licensure as an assisted living
7 facility; amending ss. 400.407 and 400.408,
8 F.S.; reorganizing and revising provisions
9 relating to unlawful facilities; providing
10 penalties; requiring report of unlicensed
11 facilities; providing for disciplinary actions;
12 revising provisions relating to referral to
13 unlicensed facilities; providing for certain
14 notice to service providers; amending s.
15 400.4075, F.S.; providing an additional
16 requirement for a limited mental health
17 license; amending s. 400.411, F.S.; revising
18 requirements for an initial application for
19 license; providing for a fee; amending s.
20 400.414, F.S.; revising authority and grounds
21 for denial, revocation, or suspension of
22 licenses or imposition of administrative fines;
23 specifying terms for review of proceedings
24 challenging administrative actions; amending s.
25 400.415, F.S.; requiring a facility to post
26 notice of a moratorium on admissions; providing
27 for rules establishing grounds for imposition
28 of a moratorium; amending s. 400.417, F.S.;
29 providing for coordinated expiration of a
30 facility's licenses; providing for prorated
31 fees; revising requirements for license
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CS/HB 3667, First Engrossed
1 renewal; providing for rules; amending s.
2 400.4174, F.S.; amending an outdated reference
3 to child abuse or neglect; amending s.
4 400.4176, F.S.; revising time requirement for
5 notice of change of administrator; amending ss.
6 400.418, 400.422, and 408.036, F.S., relating
7 to the disposition of fees and fines,
8 receivership proceedings, and the review of
9 certain projects; conforming cross references
10 to changes made by the act; amending s.
11 400.419, F.S.; revising procedures relating to
12 violations and penalties; increasing
13 administrative fines for specified classes of
14 violations; providing fines for unlicensed
15 operation of a facility and for failure to
16 apply for a change of ownership license;
17 authorizing a survey fee to cover the cost of
18 certain complaint investigations; providing for
19 corrective action plans to correct violations;
20 expanding dissemination of information
21 regarding facilities sanctioned or fined;
22 amending s. 400.4195, F.S., relating to a
23 prohibition on rebates; providing a penalty;
24 creating s. 400.4256, F.S.; establishing
25 procedures for assistance with the
26 self-administration of medication; amending s.
27 400.428, F.S.; providing for surveys to
28 determine compliance with facility standards
29 and residents' rights; amending s. 400.442,
30 F.S.; providing for professional assistance and
31 corrective action plans for facilities with
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CS/HB 3667, First Engrossed
1 deficiencies related to the administration of
2 medications; amending s. 400.452, F.S.;
3 revising provisions relating to facility staff
4 training and education programs; providing for
5 rules; amending s. 400.474, F.S.; providing for
6 disciplinary action against a home health
7 agency or employee who knowingly provides
8 services in an unlicensed assisted living
9 facility or adult family-care home; amending s.
10 400.618, F.S.; revising the definition of the
11 term "adult family-care home"; amending s.
12 394.4574, F.S.; requiring district
13 administrators of the Department of Children
14 and Family Services to develop plans to ensure
15 the provision of mental health and substance
16 abuse treatment services to residents of
17 assisted living facilities that hold a limited
18 mental health license; providing effective
19 dates.
20
21 Be It Enacted by the Legislature of the State of Florida:
22
23 Section 1. Section 400.402, Florida Statutes, is
24 amended to read:
25 400.402 Definitions.--When used in this part, unless
26 the context otherwise requires, the term:
27 (1) "Activities of daily living" means functions and
28 tasks for self-care, including ambulation, bathing, dressing,
29 eating, grooming, and toileting, and other similar tasks.
30 (2) "Administrator" means an individual at least 21
31 years of age who is responsible for the operation and
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CS/HB 3667, First Engrossed
1 maintenance who has general administrative charge of an
2 assisted living facility.
3 (3) "Assisted living facility," hereinafter referred
4 to as "facility," means any building or buildings, section of
5 a building, or distinct part of a building, residence, private
6 home, boarding home, home for the aged, or other place,
7 whether operated for profit or not, which undertakes through
8 its ownership or management to provide, for a period exceeding
9 24 hours, housing, food service, and one or more personal
10 services for four or more adults, not related to the owner or
11 administrator by blood or marriage, who require such services;
12 or to provide extended congregate care, limited nursing
13 services, or limited mental health services, when specifically
14 licensed to do so pursuant to s. 400.407, unless the facility
15 is licensed as an adult family-care home. A facility offering
16 personal services, extended congregate care, limited nursing
17 services, or limited mental health services for fewer than
18 four adults is within the meaning of this definition if it
19 formally or informally advertises to or solicits the public
20 for residents or referrals and holds itself out to the public
21 to be an establishment which regularly provides such services,
22 unless the facility is licensed as an adult family-care home.
23 (3)(4) "Agency" means the Agency for Health Care
24 Administration.
25 (4)(5) "Aging in place" or "age in place" means the
26 process of providing increased or adjusted services to a
27 person to compensate for by which a person chooses to remain
28 in a residential environment despite the physical or mental
29 decline that may occur with the aging process, in order to
30 maximize. For aging in place to occur, needed services are
31 added, increased, or adjusted to compensate for the physical
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1 or mental decline of the individual, while maximizing the
2 person's dignity and independence and permit the person to
3 remain in a familiar, noninstitutional, residential
4 environment for as long as possible. Such services may be
5 provided by facility staff, volunteers, family, or friends, or
6 through contractual arrangements with a third party.
7 (5)(6) "Applicant" means an individual owner,
8 corporation, partnership, firm, association, or governmental
9 entity that applies any facility owner, or if a business
10 entity, a person appointed by such entity to make application
11 for a license.
12 (7) "Assistance with activities of daily living" means
13 direct physical assistance with activities of daily living as
14 defined in subsection (1).
15 (6) "Assisted living facility" means any building or
16 buildings, section or distinct part of a building, private
17 home, boarding home, home for the aged, or other residential
18 facility, whether operated for profit or not, which undertakes
19 through its ownership or management to provide housing, meals,
20 and one or more personal services for a period exceeding 24
21 hours to one or more adults who are not relatives of the owner
22 or administrator.
23 (7)(8) "Chemical restraint" means a pharmacologic drug
24 that physically limits, restricts, or deprives an individual
25 of movement or mobility, and is used for discipline or
26 convenience and not required for the treatment of medical
27 symptoms.
28 (8)(9) "Community living support plan" means a written
29 document prepared by a mental health resident and the
30 resident's mental health case manager of that resident in
31 consultation with the administrator of an assisted living the
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1 facility with a limited mental health license or the
2 administrator's designee. A copy must be provided to the
3 administrator. The plan must include information about the
4 supports, services, and special needs of the resident which
5 enable the resident to live in the assisted living facility
6 and a method by which facility staff can recognize and respond
7 to the signs and symptoms particular to that resident which
8 indicate the need for professional services.
9 (9)(10) "Cooperative agreement" means a written
10 statement of understanding between a mental health care
11 services provider and the administrator of the assisted living
12 facility with a limited mental health license in which a
13 mental health resident is living. The agreement must specify
14 specifies directions for accessing emergency and after-hours
15 care for the mental health resident. A single cooperative
16 agreement may cover all mental health residents of a single
17 facility who are clients of the same mental health care
18 provider. and a method by which the staff of the facility can
19 recognize and respond to the signs and symptoms particular to
20 that mental health resident that indicate the need for
21 professional services. The cooperative agreement may be a
22 component of the community living support plan.
23 (10)(11) "Department" means the Department of Elderly
24 Affairs.
25 (11)(12) "Emergency" means a situation, physical
26 condition, or method of operation which presents imminent
27 danger of death or serious physical or mental harm to facility
28 residents.
29 (12)(13) "Extended congregate care" means acts beyond
30 those authorized in subsection (17) (16) that may be performed
31 pursuant to chapter 464 by persons licensed thereunder while
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1 carrying out their professional duties, and other supportive
2 services which may be specified by rule. The purpose of such
3 services is to enable residents to age in place in a
4 residential environment despite mental or physical limitations
5 that might otherwise disqualify them from residency in a
6 facility licensed under this part.
7 (13)(14) "Guardian" means a person to whom the law has
8 entrusted the custody and control of the person or property,
9 or both, of a person who has been legally adjudged
10 incapacitated.
11 (14)(15) "Limited nursing services" means acts that
12 may be performed pursuant to chapter 464 by persons licensed
13 thereunder while carrying out their professional duties but
14 limited to those acts which the department specifies by rule.
15 Acts which may be specified by rule as allowable limited
16 nursing services shall be for persons who meet the admission
17 criteria established by the department for assisted living
18 facilities and shall not be complex enough to require 24-hour
19 nursing supervision and may include such services as the
20 application and care of routine dressings, and care of casts,
21 braces, and splints.
22 (15)(16) "Managed risk" means the process by which the
23 facility staff discuss the service plan and the needs of the
24 resident with the resident and, if applicable, the resident's
25 representative or designee or the resident's surrogate,
26 guardian, or attorney in fact, in such a way that the
27 consequences of a decision, including any inherent risk, are
28 explained to all parties and reviewed periodically in
29 conjunction with the service plan, taking into account changes
30 in the resident's status and the ability of the facility to
31 respond accordingly.
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1 (16)(17) "Mental health resident" means an individual
2 who receives social security disability income due to a mental
3 disorder as determined by the Social Security Administration
4 or receives supplemental security income due to a mental
5 disorder as determined by the Social Security Administration
6 and receives optional state supplementation.
7 (17)(18) "Personal services" means direct physical
8 include, but are not limited to, such services as: individual
9 assistance with or supervision of the essential activities of
10 daily living and the self-administration of medication as
11 defined in subsection (1), and other similar services which
12 the department may define by rule. "Personal services" shall
13 not be construed to mean the provision of medical, nursing,
14 dental, or mental health services. by the staff of a facility,
15 except as provided in this part. In addition, an emergency
16 response device installed in the apartment or living area of a
17 resident shall not be classified as a personal service.
18 (18)(19) "Physical restraint" means a device which
19 physically limits, restricts, or deprives an individual of
20 movement or mobility, including, but not limited to, a
21 half-bed rail, a full-bed rail, a geriatric chair, and a posey
22 restraint. The term "physical restraint" shall also include
23 any device which was not specifically manufactured as a
24 restraint but which has been altered, arranged, or otherwise
25 used for this purpose. The term shall not include bandage
26 material used for the purpose of binding a wound or injury.
27 (19) "Relative" means an individual who is the father,
28 mother, stepfather, stepmother, son, daughter, brother,
29 sister, grandmother, grandfather, great-grandmother,
30 great-grandfather, grandson, granddaughter, uncle, aunt, first
31 cousin, nephew, niece, husband, wife, father-in-law,
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1 mother-in-law, son-in-law, daughter-in-law, brother-in-law,
2 sister-in-law, stepson, stepdaughter, stepbrother, stepsister,
3 half-brother, or half-sister of an owner or administrator.
4 (20) "Resident" means a person 18 years of age or
5 older, residing in and receiving care from a facility.
6 (21) "Resident's representative or designee" means a
7 person other than the owner, or an agent or employee of the
8 facility, designated in writing by the resident, if legally
9 competent, to receive notice of changes in the contract
10 executed pursuant to s. 400.424; to receive notice of and to
11 participate in meetings between the resident and the facility
12 owner, administrator, or staff concerning the rights of the
13 resident; to assist the resident in contacting the ombudsman
14 council if the resident has a complaint against the facility;
15 or to bring legal action on behalf of the resident pursuant to
16 s. 400.429.
17 (22) "Service plan" means a written plan, developed
18 and agreed upon by the resident and, if applicable, the
19 resident's representative or designee or the resident's
20 surrogate, guardian, or attorney in fact, if any, and the
21 administrator or designee representing the facility, which
22 addresses the unique physical and psychosocial needs,
23 abilities, and personal preferences of each resident receiving
24 extended congregate care services. The plan shall include a
25 brief written description, in easily understood language, of
26 what services shall be provided, who shall provide the
27 services, when the services shall be rendered, and the
28 purposes and benefits of the services.
29 (23) "Shared responsibility" means exploring the
30 options available to a resident within a facility and the
31 risks involved with each option when making decisions
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1 pertaining to the resident's abilities, preferences, and
2 service needs, thereby enabling the resident and, if
3 applicable, the resident's representative or designee, or the
4 resident's surrogate, guardian, or attorney in fact, and the
5 facility to develop a service plan which best meets the
6 resident's needs and seeks to improve the resident's quality
7 of life.
8 (24) "Supervision of activities of daily living" means
9 reminding residents to engage in activities of daily living
10 and the self-administration of medication, and, when
11 necessary, observing or providing verbal cuing to residents
12 while they perform these activities.
13 (25) "Supervision of self-administered medication"
14 means reminding residents to take medication, opening bottle
15 caps for residents, opening prepackaged medication for
16 residents, reading the medication label to residents,
17 observing residents while they take medication, checking the
18 self-administered dosage against the label of the container,
19 reassuring residents that they have obtained and are taking
20 the dosage as prescribed, keeping daily records of when
21 residents receive supervision pursuant to this subsection, and
22 immediately reporting noticeable changes in the condition of a
23 resident to the resident's physician and the resident's case
24 manager, if one exists. Residents who are capable of
25 administering their own medication shall be allowed to do so.
26 (25)(26) "Supplemental security income," Title XVI of
27 the Social Security Act, means a program through which the
28 Federal Government guarantees a minimum monthly income to
29 every person who is age 65 or older, or disabled, or blind and
30 meets the income and asset requirements.
31
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1 (26)(27) "Supportive services" means services designed
2 to encourage and assist aged persons or adults with
3 disabilities to remain in the least restrictive living
4 environment and to maintain their independence as long as
5 possible.
6 (27)(28) "Twenty-four-hour nursing supervision" means
7 services that are ordered by a physician for a resident whose
8 condition requires the supervision of a physician and
9 continued monitoring of vital signs and physical status. Such
10 services shall be: medically complex enough to require
11 constant supervision, assessment, planning, or intervention by
12 a nurse; required to be performed by or under the direct
13 supervision of licensed nursing personnel or other
14 professional personnel for safe and effective performance;
15 required on a daily basis; and consistent with the nature and
16 severity of the resident's condition or the disease state or
17 stage.
18 Section 2. Subsection (2) of section 400.404, Florida
19 Statutes, is amended to read:
20 400.404 Facilities to be licensed; exemptions.--
21 (2) The following are exempt from licensure under this
22 part:
23 (a) Any facility, institution, or other place operated
24 by the Federal Government or any agency of the Federal
25 Government.
26 (b) Any facility or part of a facility licensed under
27 chapter 393 or chapter 394.
28 (c) Any facility licensed as an adult family-care home
29 under part VII.
30 (d) Any person who provides housing, meals, and one or
31 more personal services on a 24-hour basis in the person's own
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1 home to not more than two adults who do not receive optional
2 state supplementation. The person who provides the housing,
3 meals, and personal services must own or rent, and live in,
4 the home.
5 (e)(c) Any home or facility approved by the United
6 States Department of Veterans Affairs as a residential care
7 home wherein care is provided exclusively to three or fewer
8 veterans.
9 (f)(d) Any facility that has been incorporated in this
10 state for 50 years or more on or before July 1, 1983, and the
11 board of directors of which is nominated or elected by the
12 residents, until the facility is sold or its ownership is
13 transferred; or any facility, with improvements or additions
14 thereto, which has existed and operated continuously in this
15 state for 60 years or more on or before July 1, 1989, is
16 directly or indirectly owned and operated by a nationally
17 recognized fraternal organization, is not open to the public,
18 and accepts only its own members and their spouses as
19 residents.
20 (g)(e) Any facility certified under chapter 651, or a
21 retirement community, may provide services authorized under
22 this part or part IV of this chapter to its residents who live
23 in single-family homes, duplexes, quadruplexes, or apartments
24 located on the campus without obtaining a license to operate
25 an assisted living facility if residential units within such
26 buildings are used by residents who do not require staff
27 supervision for that portion of the day when personal services
28 are not being delivered and the owner obtains a home health
29 license to provide such services. However, any building or
30 distinct part of a building on the campus that is designated
31 for persons who receive personal services and require
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1 supervision beyond that which is available while such services
2 are being rendered must be licensed in accordance with this
3 part. If a facility provides personal services to residents
4 who do not otherwise require supervision and the owner is not
5 licensed as a home health agency, the buildings or distinct
6 parts of buildings where such services are rendered must be
7 licensed under this part. A resident of a facility that
8 obtains a home health license may contract with a home health
9 agency of his or her choice, provided that the home health
10 agency provides liability insurance and workers' compensation
11 coverage for its employees. Facilities covered by this
12 exemption may establish policies that give residents the
13 option of contracting for services and care beyond that which
14 is provided by the facility to enable them to age in place.
15 For purposes of this section, a retirement community consists
16 of a facility licensed under this part or under part II, and
17 apartments designed for independent living located on the same
18 campus.
19 Section 3. Subsection (1) of section 400.407, Florida
20 Statutes, is amended to read:
21 400.407 License required; fee, display.--
22 (1)(a) A license issued by the agency is required for
23 an assisted living facility operating in this state. It is
24 unlawful to operate or maintain a facility without first
25 obtaining from the agency a license authorizing such
26 operation.
27 (b)1. Any person found guilty of violating paragraph
28 (a) who, upon notification by the agency, fails, within 10
29 working days after receiving such notification, to apply for a
30 license commits a felony of the third degree, punishable as
31 provided in s. 775.082, s. 775.083, or s. 775.084.
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1 2. Any person found to be in violation of paragraph
2 (a) due to a change in s. 400.402(3), (18), (24), or (25) or a
3 modification in department policy pertaining to personal
4 services as provided for in s. 400.402 and who, upon
5 notification by the agency, fails, within 10 working days
6 after receiving such notification, to apply for a license
7 commits a felony of the third degree, punishable as provided
8 in s. 775.082, s. 775.083, or s. 775.084.
9 3. Except as provided for in subparagraph 2., any
10 person who violates paragraph (a) who previously operated a
11 licensed facility or concurrently operates a licensed facility
12 and an unlicensed facility commits a felony of the third
13 degree, punishable as provided in s. 775.082, s. 775.083, or
14 s. 775.084.
15 4. Any person who fails to obtain a license after
16 agency notification may be fined for each day of noncompliance
17 pursuant to s. 400.419(1)(b).
18 5. When an owner has an interest in more than one
19 facility, and fails to license any one of these facilities,
20 the agency may revoke the license or impose a moratorium on
21 any or all of the licensed facilities until such time as the
22 delinquent facility is licensed.
23 6. If the agency determines that an owner is operating
24 or maintaining a facility without obtaining a license
25 authorizing such operation and determines that a condition
26 exists in the facility that poses a threat to the health,
27 safety, or welfare of a resident of the facility, the owner
28 commits neglect as defined in s. 415.102 and is subject to the
29 same actions and penalties specified in ss. 400.414 and
30 400.419 for a negligent act seriously affecting the health,
31 safety, or welfare of a resident of the facility.
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1 Section 4. Effective January 1, 1999, subsection (1)
2 of section 400.4075, Florida Statutes, is amended to read:
3 400.4075 Limited mental health license.--An assisted
4 living facility that serves three or more mental health
5 residents must obtain a limited mental health license.
6 (1) To obtain a limited mental health license, a
7 facility must hold a standard license as an assisted living
8 facility, must not have any current uncorrected deficiencies
9 or violations, and must ensure that, within 6 months after
10 receiving a limited mental health license, the facility
11 administrator and the staff of the facility who are in direct
12 contact with mental health residents must complete training of
13 no less than 6 hours related to their duties. This training
14 will be provided by or approved by the Department of Children
15 and Family Services.
16 Section 5. Section 400.408, Florida Statutes, is
17 amended to read:
18 400.408 Unlicensed facilities; referral of person for
19 residency to unlicensed facility; penalties penalty;
20 verification of licensure status.--
21 (1)(a) It is unlawful to own, operate, or maintain an
22 assisted living facility without obtaining a license under
23 this part.
24 (b) Except as provided under paragraph (d), any person
25 who owns, operates, or maintains an unlicensed assisted living
26 facility commits a felony of the third degree, punishable as
27 provided in s. 775.082, s. 775.083, or s. 775.084. Application
28 for licensure within 10 working days after notification shall
29 be an affirmative defense to this felony violation.
30 (c) Any person found guilty of violating paragraph (a)
31 a second or subsequent time commits a felony of the second
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1 degree, punishable as provided under s. 775.082, s. 775.083,
2 or s. 775.084.
3 (d) Any person who owns, operates, or maintains an
4 unlicensed assisted living facility due to a change in this
5 part or a modification in department rule within 6 months
6 after the effective date of such change and who, within 10
7 working days after receiving notification from the agency,
8 fails to cease operation or apply for a license under this
9 part commits a felony of the third degree, punishable as
10 provided in s. 775.082, s. 775.083, or s. 775.084.
11 (e) Pursuant to this subsection, any facility that
12 fails to apply for a license or cease operation after agency
13 notification may be fined for each day of noncompliance
14 pursuant to s. 400.419.
15 (f) When a licensee has an interest in more than one
16 assisted living facility, and fails to license any one of
17 these facilities, the agency may revoke the license or impose
18 a moratorium on any or all of the licensed facilities until
19 such time as the unlicensed facility applies for licensure or
20 ceases operation.
21 (g) If the agency determines that an owner is
22 operating or maintaining an assisted living facility without
23 obtaining a license and determines that a condition exists in
24 the facility that poses a threat to the health, safety, or
25 welfare of a resident of the facility, the owner is subject to
26 the same actions and fines imposed against a licensed facility
27 as specified in ss. 400.414 and 400.419.
28 (h) Any person aware of the operation of an unlicensed
29 assisted living facility must report that facility to the
30 agency. The agency shall provide to the department and to
31 elder information and referral providers a list, by county, of
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1 licensed assisted living facilities, to assist persons who are
2 considering an assisted living facility placement in locating
3 a licensed facility.
4 (2)(1) It is unlawful to knowingly refer a person for
5 residency to an unlicensed facility that provides services
6 that may only be provided by an assisted living facility; to
7 an assisted living facility the license of which is under
8 denial or has been suspended or revoked; or to an assisted
9 living a facility that has a moratorium on admissions. Any
10 person who violates this subsection commits is guilty of a
11 noncriminal violation, punishable by a fine not exceeding $500
12 as provided in s. 775.083.
13 (a) Any employee of the agency or department, or the
14 Department of Children and Family Health and Rehabilitative
15 Services, who knowingly refers a person for residency to an
16 unlicensed facility; to a facility the license of which is
17 under denial or has been suspended or revoked; or to a
18 facility that has a moratorium on admissions is subject to
19 disciplinary action by the agency or department, or the
20 Department of Children and Family Health and Rehabilitative
21 Services.
22 (b) The employer of any person who is under contract
23 with the agency or department, or the Department of Children
24 and Family Health and Rehabilitative Services, and who
25 knowingly refers a person for residency to an unlicensed
26 facility; to a facility the license of which is under denial
27 or has been suspended or revoked; or to a facility that has a
28 moratorium on admissions shall be fined and required to
29 prepare a corrective action plan designed to prevent such
30 referrals.
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1 (c)(2) The agency shall provide the department and the
2 Department of Children and Family Health and Rehabilitative
3 Services with a list of licensed facilities within each county
4 and shall update the list at least quarterly monthly.
5 (d)(3) At least annually, the agency shall notify, in
6 appropriate trade publications as defined by rule, physicians
7 licensed under chapter 458 or chapter 459 pursuant to chapter
8 458, osteopathic physicians licensed pursuant to chapter 459,
9 hospitals licensed under pursuant to part I of chapter 395,
10 and nursing home facilities licensed under pursuant to part II
11 of this chapter, and employees of the agency or the
12 department, or the Department of Children and Family Health
13 and Rehabilitative Services, who are responsible having a
14 responsibility for referring persons for residency, that it is
15 unlawful to knowingly refer a person for residency to an
16 unlicensed assisted living facility and shall notify them of
17 the penalty for violating such prohibition. The department and
18 the Department of Children and Family Services shall, in turn,
19 notify service providers under contract to the respective
20 departments who have responsibility for resident referrals to
21 facilities. Further, the notice must direct each noticed
22 facility and individual to contact the appropriate agency
23 office in order to verify the licensure status of any facility
24 prior to referring any person for residency. Each notice must
25 include the name, telephone number, and mailing address of the
26 appropriate office to contact.
27 Section 6. Section 400.411, Florida Statutes, is
28 amended to read:
29 400.411 Initial application for license; provisional
30 license.--
31
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1 (1) Application for license shall be made to the
2 agency on forms furnished by it and shall be accompanied by
3 the appropriate license fee. The application shall contain
4 sufficient information, as required by rules of the
5 department, to establish that the applicant can provide
6 adequate care.
7 (2) The applicant may be an individual owner,
8 corporation, partnership, firm, association, or governmental
9 entity.
10 (3)(2) The application shall be signed by the
11 applicant under oath and shall contain the following:
12 (a) The name, address, date of birth, and social
13 security number of the applicant and the name by which the
14 facility is to be known. Pursuant thereto:
15 1. If the applicant is a firm, partnership, or
16 association, the application shall contain the name, address,
17 date of birth, and social security number of every member
18 thereof.
19 2. If the applicant is a corporation, the application
20 shall contain the corporation's its name and address, the
21 name, address, date of birth, and social security number of
22 each of its directors and officers, and the name and address
23 of each person having at least a 5-percent ownership
24 10-percent interest in the corporation.
25 (b) The name and address of any professional service,
26 firm, association, partnership, or corporation that is to
27 provide goods, leases, or services to the facility for which
28 the application is made, if a 5-percent 10-percent or greater
29 interest in the service, firm, association, partnership, or
30 corporation is owned by a person whose name must be listed on
31 the application under paragraph (a).
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1 (c) Information sufficient that provides a source to
2 establish the suitable character, financial stability, and
3 competency of the applicant and of each person specified in
4 the application under paragraph (a) subparagraph (a)1. or
5 subparagraph (a)2. who has at least a 10-percent interest in
6 the firm, partnership, association, or corporation and, if
7 different from the applicant, applicable, of the administrator
8 and financial officer., including
9 (d) The name and address of any long-term care
10 facility with which the applicant, or administrator, or
11 financial officer has been affiliated through ownership or
12 employment within 5 years of the date of this license the
13 application for a license; and a signed affidavit disclosing
14 any financial or ownership interest that the applicant, or any
15 person listed in paragraph (a) principal, partner, or
16 shareholder thereof, holds or has held within the last 5 years
17 in any other facility licensed under this part, or in any
18 other entity licensed by this the state or another state to
19 provide health or residential care, which facility or entity
20 closed or ceased to operate as a result of financial problems,
21 or has had a receiver appointed or a license denied, suspended
22 or revoked, or was subject to a moratorium on admissions, or
23 has had an injunctive proceeding initiated against it.
24 (e)(d) The names and addresses of other persons of
25 whom the agency may inquire as to the character, and
26 reputation, and financial responsibility of the owner and, if
27 different from the applicant, the administrator and financial
28 officer applicant and, if applicable, of the administrator.
29 (e) The names and addresses of other persons of whom
30 the agency may inquire as to the financial responsibility of
31 the applicant.
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1 (f) Identification of all other homes or facilities,
2 including the addresses and the license or licenses under
3 which they operate, if applicable, which are currently
4 operated by the applicant or administrator and which provide
5 housing, meals, and personal services to residents adults.
6 (g) Such other reasonable information as may be
7 required by the agency to evaluate the ability of the
8 applicant to meet the responsibilities entailed under this
9 part.
10 (g)(h) The location of the facility for which a
11 license is sought and documentation, signed by the appropriate
12 local government official, which states that the applicant has
13 met local zoning requirements.
14 (h)(i) The name, address, date of birth, social
15 security number, education, and experience of the
16 administrator if different from the applicant.
17 (4)(3) The applicant shall furnish satisfactory proof
18 of financial ability to operate and conduct the facility in
19 accordance with the requirements of this part. A certificate
20 of authority, pursuant to chapter 651, may be provided as
21 proof of financial ability. An applicant applying for an
22 initial license shall submit a balance sheet setting forth the
23 assets and liabilities of the owner and a statement projecting
24 revenues, expenses, taxes, extraordinary items, and other
25 credits or charges for the first 12 months of operation of the
26 facility.
27 (5)(4) If the applicant is a continuing care facility
28 certified under chapter 651, a copy of the facility's
29 certificate of authority must be provided offers continuing
30 care agreements, as defined in chapter 651, proof shall be
31
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1 furnished that the applicant has obtained a certificate of
2 authority as required for operation under that chapter.
3 (6)(5) The applicant shall provide proof of liability
4 insurance as defined in s. 624.605.
5 (7)(6) If the applicant is a community residential
6 home, the applicant must provide proof that it has met the
7 requirements specified in chapter 419 shall apply to community
8 residential homes zoned single-family or multifamily.
9 (8)(7) The applicant must provide the agency with
10 proof of legal right to occupy the property. This proof may
11 include, but is not limited to, copies of recorded warranty
12 deeds, or copies of lease or rental agreements, contracts for
13 deeds, quitclaim deeds, or other such documentation.
14 (9)(8) The applicant must furnish proof that the
15 facility has received a satisfactory firesafety inspection.
16 The local fire marshal or other authority having jurisdiction
17 or the State Fire Marshal must conduct the inspection within
18 30 days after the written request by the applicant. If an
19 authority having jurisdiction does not have a certified
20 firesafety inspector, the State Fire Marshal shall conduct the
21 inspection.
22 (10) The applicant must furnish documentation of a
23 satisfactory sanitation inspection of the facility by the
24 county health department.
25 (11)(9) A provisional license may be issued to an
26 applicant making initial application for licensure or making
27 application for a change of ownership. A provisional license
28 shall be limited in duration to a specific period of time not
29 to exceed 6 months, as determined by the agency.
30 (12)(10) No county or municipality shall issue an
31 occupational license which is being obtained for the purpose
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1 of operating a facility regulated under this part without
2 first ascertaining that the applicant has been licensed to
3 operate such facility at the specified location or locations
4 by the agency. The agency shall furnish to local agencies
5 responsible for issuing occupational licenses sufficient
6 instruction for making such the above-required determinations.
7 Section 7. Section 400.414, Florida Statutes, is
8 amended to read:
9 400.414 Denial, revocation, or suspension of license;
10 imposition of administrative fine; grounds.--
11 (1) The agency may deny, revoke, or suspend any a
12 license issued under this part or impose an administrative
13 fine in the manner provided in chapter 120. At the chapter 120
14 hearing, the agency shall prove by a preponderance of the
15 evidence that its actions are warranted.
16 (2) Any of the following actions by an assisted living
17 facility or any facility employee a facility or its employee
18 shall be grounds for action by the agency against a licensee:
19 (a) An intentional or negligent act seriously
20 affecting the health, safety, or welfare of a resident of the
21 facility.
22 (b) The determination by the agency that the facility
23 owner, or administrator, or financial officer is not of
24 suitable character or competency, or that the owner lacks the
25 financial ability, to provide continuing adequate care to
26 residents, pursuant to the information obtained through s.
27 400.411, s. 400.417, or s. 400.434.
28 (c) Misappropriation or conversion of the property of
29 a resident of the facility.
30 (d) Failure to follow the criteria and procedures
31 provided under part I of chapter 394 relating to the
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1 transportation, voluntary admission, and involuntary
2 examination of a facility resident.
3 (e) One or more class I, three or more class II, or
4 five or more repeated or recurring identical or similar class
5 III violations of this part which were identified by the
6 agency within the last 2 years during the last biennial
7 inspection, monitoring visit, or complaint investigation and
8 which, in the aggregate, affect the health, safety, or welfare
9 of the facility residents.
10 (f) A confirmed report of adult abuse, neglect, or
11 exploitation, as defined in s. 415.102, which has been upheld
12 following a chapter 120 hearing or a waiver of such
13 proceedings where the perpetrator is an employee, volunteer,
14 administrator, or owner, or otherwise has access to the
15 residents of a facility, and the owner or administrator has
16 not taken action to remove the perpetrator. Exemptions from
17 disqualification may be granted as set forth in s. 435.07. No
18 administrative action may be taken against the facility if the
19 perpetrator is granted an exemption.
20 (g) Violation of a moratorium.
21 (h) Failure of the license applicant, the licensee
22 during relicensure, or failure of a licensee that holds a
23 provisional an initial or change of ownership license, to meet
24 the minimum license standards or the requirements of rules
25 adopted under this part, or related rules, at the time of
26 license application or renewal.
27 (i) A fraudulent statement or omission of any material
28 fact on an application for a license or any other document
29 required by the agency that is signed and notarized.
30 (j) An intentional or negligent life-threatening act
31 in violation of the uniform firesafety standards for assisted
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1 living facilities or other firesafety standards established by
2 the State Fire Marshal, that threatens the health, safety, or
3 welfare of a resident of a facility, as communicated to the
4 agency by the local State Fire Marshal, a local fire marshal,
5 or other authority having jurisdiction or the State Fire
6 Marshal.
7 (k) Knowingly operating any unlicensed facility or
8 providing without a license any service that must be licensed
9 under this chapter.
10
11 Administrative proceedings challenging agency action under
12 this subsection shall be reviewed on the basis of the facts
13 and conditions that resulted in the agency action.
14 (3) Proceedings brought under paragraphs (2)(a), (c),
15 (e), and (j) shall not be subject to de novo review.
16 (2)(4) Upon notification by the local State Fire
17 Marshal, local fire marshal, or other authority having
18 jurisdiction or the State Fire Marshal, the agency may deny or
19 revoke the license of an assisted living a facility that fails
20 to correct cited fire code violations issued by the State Fire
21 Marshal, a local fire marshal, or other authority having
22 jurisdiction, that affect or threaten the health, safety, or
23 welfare of a resident of a facility.
24 (3) The agency may deny a license to any applicant or
25 to any officer or board member of an applicant who is a firm,
26 corporation, partnership, or association or who owns 5 percent
27 or more of the facility, if the applicant, officer, or board
28 member has or had a 25-percent or greater financial or
29 ownership interest in any other facility licensed under this
30 part, or in any entity licensed by this state or another state
31 to provide health or residential care, which facility or
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1 entity during the 5 years prior to the application for a
2 license closed due to financial inability to operate; had a
3 receiver appointed or a license denied, suspended, or revoked;
4 was subject to a moratorium on admissions; had an injunctive
5 proceeding initiated against it; or has an outstanding fine
6 assessed under this chapter.
7 (4) The agency shall deny or revoke the license of an
8 assisted living facility that has two or more class I
9 violations that are similar or identical to violations
10 identified by the agency during a survey, inspection,
11 monitoring visit, or complaint investigation occurring within
12 the previous 2 years.
13 (5) The agency may deny a license to an applicant who
14 owns 25 percent or more of, or operates, a facility which,
15 during the 5 years prior to the application for a license, has
16 had a license denied, suspended, or revoked pursuant to
17 subsection (2), or, during the 2 years prior to the
18 application for a license, has had a moratorium imposed on
19 admissions, has had an injunctive proceeding initiated against
20 it, has had a receiver appointed, was closed due to financial
21 inability to operate, or has an outstanding fine assessed
22 under this part.
23 (5)(6) An action taken by the agency to suspend, deny,
24 or revoke a facility's license under this part, in which the
25 agency claims that the facility owner or an employee of the
26 facility has threatened the health, safety, or welfare of a
27 resident of the facility, shall, upon receipt of the
28 facility's request for a hearing, be heard by the Division of
29 Administrative Hearings of the Department of Management
30 Services within 120 days after receipt of the facility's the
31 request for a hearing, unless that time limitation period is
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1 waived by both parties. The administrative law judge must
2 render a decision within 30 days after receipt of a proposed
3 recommended order the hearing.
4 (6)(7) The agency shall provide to the Division of
5 Hotels and Restaurants of the Department of Business and
6 Professional Regulation, on a monthly basis, a list of those
7 assisted living facilities which have had their licenses
8 denied, suspended, or revoked or which are involved in an
9 appellate proceeding pursuant to s. 120.60 related to the
10 denial, suspension, or revocation of a license.
11 (7) Agency notification of a license suspension or
12 revocation, or denial of a license renewal, shall be posted
13 and visible to the public at the facility.
14 Section 8. Section 400.415, Florida Statutes, is
15 amended to read:
16 400.415 Moratorium on admissions; notice.--The agency
17 may impose an immediate moratorium on admissions to any
18 assisted living facility if when the agency determines that
19 any condition in the facility presents a threat to the health,
20 safety, or welfare of the residents in the facility.
21 (1) A facility the license of which is denied,
22 revoked, or suspended pursuant to as a result of a violation
23 of s. 400.414 may be subject to immediate imposition of a
24 moratorium on admissions to run concurrently with licensure
25 denial, revocation, or suspension.
26 (2) When a moratorium is placed on a facility, notice
27 of the moratorium shall be posted and visible to the public at
28 the facility until the moratorium is lifted.
29 (3) The department may by rule establish conditions
30 that constitute grounds for imposing a moratorium on a
31
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1 facility and procedures for imposing and lifting a moratorium,
2 as necessary to administer this section.
3 Section 9. Section 400.417, Florida Statutes, is
4 amended to read:
5 400.417 Expiration of license; renewal; conditional
6 license.--
7 (1) Biennial licenses issued for the operation of a
8 facility, unless sooner suspended or revoked, shall expire
9 automatically 2 years from the date of issuance. Limited
10 nursing, extended congregate care, and limited mental health
11 licenses shall expire at the same time as the facility's
12 standard license, regardless of when issued. The agency shall
13 notify the facility by certified mail at least 120 days prior
14 to the expiration of the license that a renewal license
15 relicensure is necessary to continue operation. Ninety days
16 prior to the expiration date, an application for renewal shall
17 be submitted to the agency. A license shall be renewed upon
18 the filing of an application on forms furnished by the agency
19 if the applicant has first met the requirements established
20 under this part and all rules promulgated under this part. The
21 failure to file a timely renewal application shall result in a
22 late fee charged to the facility in an amount equal to 50
23 percent of the current fee. in effect on the last preceding
24 regular renewal date. Late fees shall be deposited into the
25 Health Care Trust Fund as provided in s. 400.418. The
26 facility shall file with the application satisfactory proof of
27 ability to operate and conduct the facility in accordance with
28 the requirements of this part.
29 (2) A license shall be renewed within 90 days upon the
30 timely filing of an application on forms furnished by the
31 agency and the provision of satisfactory proof of ability to
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1 operate and conduct the facility in accordance with the
2 requirements of this part and adopted rules, including An
3 applicant for renewal of a license must furnish proof that the
4 facility has received a satisfactory firesafety inspection,
5 conducted by the local fire marshal or other authority having
6 jurisdiction or the State Fire Marshal, within the preceding
7 12 months.
8 (3) An applicant for renewal of a license who has
9 complied on the initial license application with the
10 provisions of s. 400.411 with respect to proof of financial
11 ability to operate shall not be required to provide further
12 proof of financial ability on renewal applications unless the
13 facility or any other facility owned or operated in whole or
14 in part by the same person or business entity has demonstrated
15 financial instability as provided under s. 400.447(2)
16 evidenced by bad checks, delinquent accounts, or nonpayment of
17 withholding taxes, utility expenses, or other essential
18 services or unless the agency suspects that the facility is
19 not financially stable as a result of the annual survey or
20 complaints from the public or a report from the State
21 Long-Term Care Ombudsman Council. Each facility must shall
22 report to the agency any adverse court action concerning the
23 facility's financial viability, within 7 days after its
24 occurrence. The agency shall have access to books, records,
25 and any other financial documents maintained by the facility
26 to the extent necessary to determine the facility's financial
27 stability carry out the purpose of this section. A license
28 for the operation of a facility shall not be renewed if the
29 licensee has any outstanding fines assessed pursuant to this
30 part which are in final order status.
31
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1 (4)(2) A licensee against whom a revocation or
2 suspension proceeding is pending at the time of license
3 renewal may be issued a conditional license effective until
4 final disposition by the agency of such proceeding. If
5 judicial relief is sought from the final disposition, the
6 court having jurisdiction may issue a conditional license for
7 the duration of the judicial proceeding.
8 (5)(3) A conditional license may be issued to an
9 applicant for license renewal if when the applicant fails to
10 meet all standards and requirements for licensure. A
11 conditional license issued under this subsection shall be
12 limited in duration to a specific period of time not to exceed
13 6 months, as determined by the agency, and shall be
14 accompanied by an agency-approved approved plan of correction.
15 (6) When an extended care or limited nursing license
16 is requested during a facility's biennial license period, the
17 fee shall be prorated in order to permit the additional
18 license to expire at the end of the biennial license period.
19 The fee shall be calculated as of the date the additional
20 license application is received by the agency.
21 (7) The department may by rule establish renewal
22 procedures, identify forms, and specify documentation
23 necessary to administer this section.
24 Section 10. Section 400.4174, Florida Statutes, is
25 amended to read:
26 400.4174 Reports of abuse in facilities.--When an
27 employee, volunteer, administrator, or owner of a facility is
28 the subject of has a confirmed report of adult abuse, neglect,
29 or exploitation, as defined in s. 415.102, or child abuse or
30 neglect, as defined in s. 415.503, and the protective
31 investigator knows that the individual is an employee,
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1 volunteer, administrator, or owner of a facility, the agency
2 shall be notified of the confirmed report.
3 Section 11. Section 400.4176, Florida Statutes, is
4 amended to read:
5 400.4176 Notice of change of administrator.--If,
6 during the period for which a license is issued, the owner
7 changes administrators, the owner must notify the agency of
8 the change within 10 45 days thereof and must provide
9 documentation within 90 days that the new administrator has
10 completed the applicable core educational requirements under
11 s. 400.452. Background screening shall be completed on any
12 new administrator to establish that the individual is of
13 suitable character as specified in s. 400.411 ss.
14 400.411(2)(c) and 400.456.
15 Section 12. Subsection (1) of section 400.418, Florida
16 Statutes, is amended to read:
17 400.418 Disposition of fees and administrative
18 fines.--
19 (1) Income from license fees, inspection fees, late
20 fees, and administrative fines generated pursuant to ss.
21 400.407, 400.408, 400.417, 400.419, and 400.431 shall be
22 deposited in the Health Care Trust Fund administered by the
23 agency. Such funds shall be directed to and used by the
24 agency for the following purposes:
25 (a) Up to 50 percent of the trust funds accrued each
26 fiscal year under this part may be used to offset the expenses
27 of receivership, pursuant to s. 400.422, if the court
28 determines that the income and assets of the facility are
29 insufficient to provide for adequate management and operation.
30 (b) An amount of $5,000 of the trust funds accrued
31 each year under this part shall be allocated to pay for
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1 inspection-related physical and mental health examinations
2 requested by the agency pursuant to s. 400.426 for residents
3 who are either recipients of supplemental security income or
4 have monthly incomes not in excess of the maximum combined
5 federal and state cash subsidies available to supplemental
6 security income recipients, as provided for in s. 409.212.
7 Such funds shall only be used where the resident is ineligible
8 for Medicaid.
9 (c) Any trust funds accrued each year under this part
10 and not used for the purposes specified in paragraphs (a) and
11 (b) shall be used to offset the costs of the licensure
12 program, including the costs of conducting background
13 investigations, verifying information submitted, defraying the
14 costs of processing the names of applicants, and conducting
15 inspections and monitoring visits pursuant to this part.
16 Section 13. Section 400.419, Florida Statutes, is
17 amended to read:
18 400.419 Violations; administrative fines penalties.--
19 (1)(a) If the agency determines that a facility is not
20 in compliance with standards promulgated pursuant to the
21 provisions of this part, including the failure to report
22 evidence of the facility's financial instability or the
23 operation of a facility without a license, the agency, as an
24 alternative to or in conjunction with an administrative action
25 against a facility, shall make a reasonable attempt to discuss
26 each violation and recommended corrective action with the
27 owner or administrator of the facility, prior to written
28 notification thereof. The agency, instead of fixing a period
29 within which the facility shall enter into compliance with
30 standards, may request a plan of corrective action from the
31 facility which demonstrates a good faith effort to remedy each
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1 violation by a specific date, subject to the approval of the
2 agency.
3 (b) Any facility owner or administrator found in
4 violation of this part, including any individual operating a
5 facility without a license, shall be subject to a fine, set
6 and levied by the agency.
7 (c) Each day during which any person violates any such
8 provision after the date fixed for termination of the
9 violation, as ordered by the agency, constitutes an
10 additional, separate, and distinct violation.
11 (d) Any action taken to correct a violation shall be
12 documented in writing by the administrator of the facility and
13 verified through followup visits by licensing personnel of the
14 agency. The agency may impose a fine and, in the case of an
15 owner-operated facility, revoke a facility's license when a
16 facility administrator fraudulently misrepresents action taken
17 to correct a violation.
18 (e) If a facility desires to appeal any agency action
19 under this section, it shall send a written request for a
20 hearing to the agency within 15 days of receipt by certified
21 mail of notice of the action of the agency. If the fine is
22 upheld, the violator shall pay the fine, plus interest at the
23 legal rate as specified in s. 687.01, for each day beyond the
24 date set by the agency for payment of the fine.
25 (2) In determining if a penalty is to be imposed and
26 in fixing the amount of the penalty to be imposed, if any, for
27 a violation, the agency shall consider the following factors:
28 (a) The gravity of the violation, including the
29 probability that death or serious physical or emotional harm
30 to a resident will result or has resulted, the severity of the
31
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1 action or potential harm, and the extent to which the
2 provisions of the applicable statutes or rules were violated.
3 (b) Actions taken by the owner or administrator to
4 correct violations.
5 (c) Any previous violations.
6 (d) The financial benefit to the facility of
7 committing or continuing the violation.
8 (e) The licensed capacity of the facility.
9 (1)(3) Each violation of this part and adopted rules
10 shall be classified according to the nature of the violation
11 and the gravity of its probable effect on facility residents.
12 The agency shall indicate the classification of each violation
13 on the written face of the notice of the violation as follows:
14 (a) Class "I" violations are those conditions or
15 occurrences related to the operation and maintenance of a
16 facility or to the personal care of residents which the agency
17 determines present an imminent danger to the residents or
18 guests of the facility or a substantial probability that death
19 or serious physical or emotional harm would result therefrom.
20 The condition or practice constituting a class I violation
21 shall be abated or eliminated within 24 hours, unless a fixed
22 period, as determined by the agency, is required for
23 correction. A class I violation is subject to an
24 administrative fine a civil penalty in an amount not less than
25 $1,000 and not exceeding $10,000 $5,000 for each violation. A
26 fine may be levied notwithstanding the correction of the
27 violation.
28 (b) Class "II" violations are those conditions or
29 occurrences related to the operation and maintenance of a
30 facility or to the personal care of residents which the agency
31 determines directly threaten the physical or emotional health,
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1 safety, or security of the facility residents, other than
2 class I violations. A class II violation is subject to an
3 administrative fine a civil penalty in an amount not less than
4 $500 and not exceeding $5,000 $1,000 for each violation. A
5 citation for a class II violation shall specify the time
6 within which the violation is required to be corrected. If a
7 class II violation is corrected within the time specified, no
8 fine civil penalty may be imposed, unless it is a repeated
9 offense.
10 (c) Class "III" violations are those conditions or
11 occurrences related to the operation and maintenance of a
12 facility or to the personal care of residents which the agency
13 determines indirectly or potentially threaten the physical or
14 emotional health, safety, or security of facility residents,
15 other than class I or class II violations. A class III
16 violation is subject to an administrative fine a civil penalty
17 of not less than $100 and not exceeding $1,000 $500 for each
18 violation. A citation for a class III violation shall specify
19 the time within which the violation is required to be
20 corrected. If a class III violation is corrected within the
21 time specified, no fine civil penalty may be imposed, unless
22 it is a repeated offense.
23 (d) Class "IV" violations are those conditions or
24 occurrences related to the operation and maintenance of a
25 building or to required reports, forms, or documents that do
26 not have the potential of negatively affecting residents.
27 These violations are of a type that the agency determines do
28 not threaten the health, safety, or security of residents of
29 the facility. A facility that does not correct a class IV
30 violation within the time limit specified in the
31 agency-approved corrective action plan is subject to an
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1 administrative fine a civil penalty of not less than $50 nor
2 more than $200 for each violation. Any class IV violation
3 that is corrected during the time an agency survey is being
4 conducted will be identified as an agency finding and not as a
5 violation.
6 (2)(4) The agency may set and levy a fine not to
7 exceed $1,000 $500 for each violation which cannot be
8 classified according to subsection (1) (3). In no event may
9 Such fines fine in the aggregate may not exceed $10,000 per
10 survey $5,000.
11 (3) In determining if a penalty is to be imposed and
12 in fixing the amount of the fine, the agency shall consider
13 the following factors:
14 (a) The gravity of the violation, including the
15 probability that death or serious physical or emotional harm
16 to a resident will result or has resulted, the severity of the
17 action or potential harm, and the extent to which the
18 provisions of the applicable laws or rules were violated.
19 (b) Actions taken by the owner or administrator to
20 correct violations.
21 (c) Any previous violations.
22 (d) The financial benefit to the facility of
23 committing or continuing the violation.
24 (e) The licensed capacity of the facility.
25 (4) Each day of continuing violation after the date
26 fixed for termination of the violation, as ordered by the
27 agency, constitutes an additional, separate, and distinct
28 violation.
29 (5) Any action taken to correct a violation shall be
30 documented in writing by the owner or administrator of the
31 facility and verified through followup visits by agency
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1 personnel. The agency may impose a fine and, in the case of an
2 owner-operated facility, revoke or deny a facility's license
3 when a facility administrator fraudulently misrepresents
4 action taken to correct a violation.
5 (6) For fines that are upheld following administrative
6 or judicial review, the violator shall pay the fine, plus
7 interest at the rate as specified in s. 55.03, for each day
8 beyond the date set by the agency for payment of the fine.
9 (7) Except as provided in subsection (8), any facility
10 that continues to operate without having applied for a license
11 10 days after agency notification is subject to a $1,000 fine.
12 Each day beyond 20 days after agency notification constitutes
13 a separate violation and the facility is subject to a fine of
14 $500 per day.
15 (8) Unlicensed facilities whose owner or administrator
16 concurrently operates a licensed facility, has previously
17 operated a licensed facility, or has been employed in a
18 licensed facility shall immediately be subject to an
19 administrative fine of $5,000 upon agency notification. Each
20 day that a facility continues to operate without having
21 applied for a license within 10 working days after agency
22 notification constitutes a separate violation, and such
23 facility shall be subject to a fine of $500 per day
24 retroactive to the date of agency notification.
25 (9) Any facility whose owner fails to apply for a
26 change-of-ownership license in accordance with s. 400.412 and
27 operates the facility under the new ownership is subject to a
28 fine not to exceed $5,000.
29 (10) In addition to any administrative fines imposed,
30 the agency may assess a survey fee, equal to the lesser of one
31 half of the facility's biennial license and bed fee or $500,
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1 to cover the cost of conducting initial complaint
2 investigations that result in the finding of a violation that
3 was the subject of the complaint or monitoring visits
4 conducted under s. 400.428(3)(c) to verify the correction of
5 the violations.
6 (11) The agency, as an alternative to or in
7 conjunction with an administrative action against a facility
8 for violations of this part and adopted rules, shall make a
9 reasonable attempt to discuss each violation and recommended
10 corrective action with the owner or administrator of the
11 facility, prior to written notification. The agency, instead
12 of fixing a period within which the facility shall enter into
13 compliance with standards, may request a plan of corrective
14 action from the facility which demonstrates a good-faith
15 effort to remedy each violation by a specific date, subject to
16 the approval of the agency.
17 (12)(5) Administrative fines Civil penalties paid by
18 any facility under this section the provisions of subsection
19 (3) shall be deposited into the Health Care Trust Fund and
20 expended as provided in s. 400.418.
21 (13)(6) The agency shall develop and disseminate an
22 annual list of all facilities sanctioned or fined $5,000 or
23 more in excess of $500 for violations of state standards, the
24 number and class of violations involved, the penalties
25 imposed, and the current status of cases. The list shall be
26 disseminated, at no charge, to the Department of Elderly
27 Affairs, the Department of Health and Rehabilitative Services,
28 the Department of Children and Family Services, the area
29 agencies on aging, the Statewide Human Rights Advocacy
30 Committee, and the state and district nursing home and
31 long-term care facility ombudsman councils. The Department of
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1 Children and Family Services shall disseminate the list to
2 service providers under contract to the department who are
3 responsible for referring persons to a facility for residency.
4 The agency may charge a fee commensurate with the cost of
5 printing and postage to other interested parties requesting a
6 copy of this list.
7 Section 14. Section 400.4195, Florida Statutes, is
8 amended to read:
9 400.4195 Rebates prohibited; penalties.--
10 (1) It is unlawful for any assisted living facility
11 licensed under this part to contract or promise to pay or
12 receive any commission, bonus, kickback, or rebate or engage
13 in any split-fee arrangement in any form whatsoever with any
14 physician, surgeon, organization, agency, or person, either
15 directly or indirectly, for residents referred to an assisted
16 living facility licensed under this part. A facility may
17 employ or contract with persons to market the facility,
18 provided the employee or contract provider clearly indicates
19 that he or she represents the facility. A person or agency
20 independent of the facility may provide placement or referral
21 services for a fee to individuals seeking assistance in
22 finding a suitable facility; however, any fee paid for
23 placement or referral services must be paid by the individual
24 looking for a facility, not by the facility.
25 (2) A violation of this section shall be considered
26 patient brokering and is punishable as provided in s. 817.505.
27 The department, in consultation with the agency, shall adopt
28 rules which assess administrative penalties for acts
29 prohibited by subsection (1).
30 Section 15. Paragraph (a) of subsection (1) of section
31 400.422, Florida Statutes, is amended to read:
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1 400.422 Receivership proceedings.--
2 (1) As an alternative to or in conjunction with an
3 injunctive proceeding, the agency may petition a court of
4 competent jurisdiction for the appointment of a receiver, if
5 suitable alternate placements are not available, when any of
6 the following conditions exist:
7 (a) The facility is operating without a license and
8 refuses to make application for a license as required by ss.
9 s. 400.407 and 400.408.
10 Section 16. Section 400.4256, Florida Statutes, is
11 created to read:
12 400.4256 Assistance with self-administration of
13 medication.--
14 (1) For the purposes of this section, the term:
15 (a) "Informed consent" means advising the resident, or
16 the resident's surrogate, guardian, or attorney in fact, that
17 an assisted living facility is not required to have a licensed
18 nurse on staff, that the resident may be receiving assistance
19 with self-administration of medication from an unlicensed
20 person, and that such assistance, if provided by an unlicensed
21 person, will or will not be overseen by a licensed nurse.
22 (b) "Unlicensed person" means an individual not
23 currently licensed to practice nursing or medicine who is
24 employed by or under contract to an assisted living facility
25 and who has received training with respect to assisting with
26 the self-administration of medication in an assisted living
27 facility as provided under s. 400.452 prior to providing such
28 assistance as described in this section.
29 (2) Residents who are capable of self-administering
30 their own medications without assistance shall be encouraged
31 and allowed to do so. However, an unlicensed person may,
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1 consistent with a dispensed prescription's label or the
2 package directions of an over-the-counter medication, assist a
3 resident whose condition is medically stable with the
4 self-administration of routine, regularly scheduled
5 medications that are intended to be self-administered.
6 Assistance with self-administration of medication by an
7 unlicensed person may occur only upon a documented request by,
8 and the written informed consent of, a resident or the
9 resident's surrogate, guardian, or attorney in fact. For the
10 purposes of this section, self-administered medications
11 include both legend and over-the-counter oral dosage forms,
12 topical dosage forms, and topical opthalmic, otic, and nasal
13 dosage forms including solutions, suspensions, sprays, and
14 inhalers.
15 (3) Assistance with self-administration of medication
16 includes:
17 (a) Taking the medication, in its previously
18 dispensed, properly labeled container, from where it is
19 stored, and bringing it to the resident.
20 (b) In the presence of the resident, reading the
21 label, opening the container, removing a prescribed amount of
22 medication from the container, and closing the container.
23 (c) Placing an oral dosage in the resident's hand or
24 placing the dosage in another container and helping the
25 resident by lifting the container to his or her mouth.
26 (d) Applying topical medications.
27 (e) Returning the medication container to proper
28 storage.
29 (f) Keeping a record of when a resident receives
30 assistance with self-administration of medication under this
31 section.
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1 (4) Assistance with self-administration of medication
2 does not include:
3 (a) Mixing, compounding, converting, or calculating
4 medication doses, except for measuring a prescribed amount of
5 liquid medication or breaking a scored tabled or crushing a
6 tablet as prescribed.
7 (b) The preparation of syringes for injection or the
8 administration of medications by any injectable route.
9 (c) Administration of medications through intermittent
10 positive pressure breathing machines or a nebulizer.
11 (d) Administration of medications by way of a tube
12 inserted in a cavity of the body.
13 (e) Administration of parenteral preparations.
14 (f) Irrigations or debriding agents used in the
15 treatment of a skin condition.
16 (g) Rectal, urethral, or vaginal preparations.
17 (h) Medications ordered by the physician or health
18 care professional with prescriptive authority to be given "as
19 needed," and at the request of a competent resident, unless
20 the order is written with specific parameters that preclude
21 independent judgment on the part of the unlicensed person.
22 (i) Medications for which the time of administration,
23 the amount, the strength of dosage, the method of
24 administration, or the reason for administration requires
25 judgment or discretion on the part of the unlicensed person.
26 (5) Assistance with the self-administration of
27 medication by an unlicensed person as described in this
28 section shall not be considered administration as defined in
29 s. 465.003.
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1 (6) The department may by rule establish facility
2 procedures and interpret terms as necessary to implement this
3 section.
4 Section 17. Subsection (3) of section 400.428, Florida
5 Statutes, is amended to read:
6 400.428 Resident bill of rights.--
7 (3)(a) The agency shall conduct a survey an inspection
8 to determine general compliance with facility standards and
9 compliance with residents' rights as a prerequisite to initial
10 or renewal licensure or licensure renewal.
11 (b) In order to determine whether the facility is
12 adequately protecting residents' rights, the biennial survey
13 inspection of the facility shall include private informal
14 conversations with a sample of residents and consultation with
15 the ombudsman council in the planning and service area, as
16 defined in part II, in which the facility is located to
17 discuss residents' experiences within the facility with
18 respect to rights specified in this section and general
19 compliance with standards.
20 (c) During any calendar year in which no survey
21 inspection is conducted, the agency shall conduct at least one
22 monitoring visit of each facility cited in the previous year
23 for a class I or class II violation, or more than three
24 uncorrected class III violations, that led to a conditional
25 license or a moratorium on admissions.
26 (d) The agency may conduct periodic followup
27 inspections as necessary to monitor the compliance of
28 facilities with a history of any class I, class II, or class
29 III violations that threaten the health, safety, or security
30 of residents.
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1 (e)(d) The agency may conduct complaint investigations
2 as warranted to investigate any allegations of noncompliance
3 with requirements required under this part or rules adopted
4 promulgated under this part.
5 Section 18. Section 400.442, Florida Statutes, is
6 amended to read:
7 400.442 Pharmacy and dietary services.--
8 (1) Notwithstanding s. 400.419, Any assisted living
9 facility in which the agency has documented a class I or class
10 II deficiency or uncorrected class III deficiencies regarding
11 medicinal drugs or over-the-counter preparations, including
12 their storage, use, delivery, or administration, or dietary
13 services, or both, during a biennial survey or a monitoring
14 visit or an investigation in response to a complaint, shall,
15 in addition to or as an alternative to any penalties imposed
16 under s. 400.419, be required to employ the consultant
17 services of a licensed pharmacist, a licensed registered
18 nurse, or a registered or licensed dietitian, or both, as
19 applicable. The consultant shall provide onsite consultation
20 and shall continue with, at a minimum, provide onsite
21 quarterly consultation until the inspection team from the
22 agency determines that such consultation services are no
23 longer required.
24 (2) A corrective action plan for deficiencies related
25 to assistance with the self-administration of medication or
26 the administration of medication must be developed and
27 implemented by the facility within 48 hours after notification
28 of such deficiency, or sooner if the deficiency is determined
29 by the agency to be life threatening.
30 (3)(2) The agency shall employ at least two
31 pharmacists licensed pursuant to chapter 465 among its
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1 personnel who biennially inspect assisted living facilities
2 licensed under this part, to participate in biennial
3 inspections or consult with the agency regarding deficiencies
4 relating to medicinal drugs or over-the-counter preparations,
5 including, but not limited to, their storage, use, delivery,
6 or administration. A corrective action plan for deficiencies
7 related to the administration or supervision of medication
8 must be developed and implemented within 48 hours after
9 notification of the deficiency, or sooner if the deficiency is
10 determined by the agency to be life threatening.
11 Section 19. Section 400.452, Florida Statutes, is
12 amended to read:
13 400.452 Staff training and educational programs; core
14 educational requirement.--
15 (1) The department shall provide, or cause to be
16 provided, training and educational programs for the
17 administrators and such other assisted living facility staff
18 as are defined by the department to better enable them to
19 appropriately respond to the needs of residents, to maintain
20 resident care and facility standards, and to meet licensure
21 requirements.
22 (2) The department shall also establish a core
23 educational requirement to be used in these programs.
24 Successful completion of the core educational requirement must
25 include successful completion of a competency test. Programs
26 must be provided by the department or by a provider approved
27 by the department at least quarterly. The core educational
28 requirement must cover at least the following topics:
29 (a) State law and rules relating to on assisted living
30 facilities, including lifesafety requirements and procedures.
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1 (b) Resident rights and identifying and reporting
2 abuse, neglect, and exploitation.
3 (c) Special needs of elderly persons, persons with
4 mental illness, and persons with developmental disabilities
5 and how to meet those needs.
6 (d) Nutrition and food service, including acceptable
7 sanitation practices for preparing, storing, and serving food.
8 (e) Medication management and recordkeeping, and
9 proper techniques for assisting residents with
10 self-administered medication, including recordkeeping.
11 (f) Firesafety requirements, including fire evacuation
12 drill procedures and other emergency procedures drills.
13 (g) Care of persons with Alzheimer's disease and other
14 related disorders.
15 (3) Such a program must be available at least
16 quarterly in each planning and service area district of the
17 department of Health and Rehabilitative Services. The
18 competency test must be developed by the department in
19 conjunction with the agency and providers and must be
20 available for use by January 1, 1997. Beginning July 1, 1997,
21 A new facility administrator must complete the core
22 educational requirement including the competency test within 3
23 months after being employed as an administrator. Failure to
24 complete a core educational requirement specified in this
25 subsection is a violation of this part and subjects the
26 violator to an administrative fine a penalty as prescribed in
27 s. 400.419. Administrators licensed in accordance with chapter
28 468, part II, are exempt from this requirement. Other licensed
29 professionals may be exempted, as determined by the department
30 by rule.
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1 (4) Administrators are required to participate in
2 continuing education for a minimum of 12 contact hours every 2
3 years as specified by rule of the department.
4 (5) Staff involved with the management of medications
5 and assisting with the self-administration of medications
6 under s. 400.4256 must complete a minimum of 4 hours of
7 training pursuant to a curriculum developed by the department,
8 provided by a registered nurse, licensed pharmacist, or
9 department staff. Administrators and staff of facilities more
10 than 10 percent of whose residents are mental health residents
11 shall participate in training in the care and supervision of
12 such residents as specified by rule of the department.
13 (6) Other facility staff shall participate in training
14 relevant to their job duties as specified by rule of the
15 department.
16 (7) Any facility more than 90 percent of whose
17 residents receive monthly optional supplementation payments is
18 not required to pay for the training and education programs
19 provided under this section. A facility that has one or more
20 such residents shall pay a reduced fee that is proportional to
21 the percentage of such residents in the facility. A facility
22 that does not have any residents who receive monthly optional
23 supplementation payments must pay a reasonable fee, as
24 established by the department, for such training and education
25 programs. A facility that has one or more such residents shall
26 pay a reduced fee that is proportional to the percentage of
27 such residents in the facility. Any facility more than 90
28 percent of whose residents receive monthly optional state
29 supplementation payments is not required to pay for the
30 training and continuing education programs required under this
31 section.
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1 (8) If the department or the agency determines that
2 there are problems in a facility that could be reduced through
3 specific staff training or education beyond that already
4 required under this section, the department or the agency may
5 require, and provide, or cause to be provided, the training or
6 education of any personal care staff in the facility.
7 (9) The department shall adopt rules pursuant to the
8 Administrative Procedure Act to establish training programs,
9 standards and curriculum for training, staff training
10 requirements, procedures for approving training programs, and
11 training fees.
12 Section 20. Paragraph (c) is added to subsection (2)
13 of section 400.474, Florida Statutes, to read:
14 400.474 Denial, suspension, revocation of license;
15 injunction; grounds.--
16 (2) Any of the following actions by a home health
17 agency or its employee is grounds for disciplinary action by
18 the Agency for Health Care Administration:
19 (c) Knowingly providing home health services in an
20 unlicensed assisted living facility or unlicensed adult
21 family-care home, unless the home health agency or employee
22 reports the unlicensed facility or home to the agency within
23 72 hours after providing the services.
24 Section 21. Section 400.618, Florida Statutes, is
25 amended to read:
26 400.618 Definitions.--As used in this part ss.
27 400.616-400.629, the term:
28 (1) "Activities of daily living" means functions and
29 tasks for self-care, including eating, bathing, grooming,
30 dressing, ambulating, and other similar tasks.
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1 (2) "Adult family-care home" means a full-time,
2 family-type living arrangement, in a private home, under which
3 a person who owns or rents, and lives in, the home provides or
4 persons provide, for profit or not for profit, room, board,
5 and one or more personal services, on a 24-hour basis as
6 appropriate for the level of functional impairment, for no
7 more than five aged persons or disabled adults who are not
8 relatives. The following family-type living arrangements
9 establishments are not required to be licensed as an adult
10 family-care home homes:
11 (a) An arrangement whereby the person who owns or
12 rents the home provides room, board, and establishment that
13 provides personal services for not more than two three or
14 fewer adults who do not receive optional state supplementation
15 under s. 409.212, but that does not hold itself out to the
16 public to be an establishment that regularly provides such
17 services. The person who provides the housing, meals, and
18 personal services must own or rent, and live in, the home.
19 (b) An arrangement whereby the person who owns or
20 rents the home provides room, board, and establishment in
21 which a person or persons provide personal services only to
22 their relatives.
23 (c) An establishment that is licensed as an assisted
24 living facility under part III.
25 (3) "Aged person" means any person age 60 or over who
26 is currently a resident of the state and who, because of a
27 functional impairment, requires one or more personal services
28 but does not require 24-hour skilled nursing home or
29 institutional care.
30 (4) "Agency" means the Agency for Health Care
31 Administration.
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1 (5) "Aging in place" means remaining in a
2 noninstitutional living environment despite the physical or
3 mental changes that may occur in a person who is aging. For
4 aging in place to occur, needed services are added, increased,
5 or adjusted to compensate for a person's physical or mental
6 changes.
7 (6) "Chemical restraint" means a pharmacologic drug
8 that physically limits, restricts, or deprives an individual
9 of movement or mobility, and is used for discipline or
10 convenience and not required for the treatment of medical
11 symptoms.
12 (7) "Department" means the Department of Elderly
13 Affairs.
14 (8) "Disabled adult" means any person between 18 and
15 59 years of age, inclusive, who is a resident of the state and
16 who has one or more permanent physical or mental limitations
17 that restrict the person's ability to perform the normal
18 activities of daily living.
19 (9) "Personal services" include, but are not limited
20 to, individual assistance with or supervision of activities of
21 daily living; supervision of self-administered medication; and
22 other similar services that the department defines by rule.
23 (10) "Provider" means a person who is licensed to
24 operate an adult family-care home.
25 (11) "Relative" means an individual who is the father,
26 mother, son, daughter, brother, sister, uncle, aunt, first
27 cousin, nephew, niece, husband, wife, father-in-law,
28 mother-in-law, son-in-law, daughter-in-law, brother-in-law,
29 sister-in-law, stepfather, stepmother, stepson, stepdaughter,
30 stepbrother, stepsister, half brother, or half sister of a
31 provider.
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1 Section 22. Paragraph (h) of subsection (3) of section
2 408.036, Florida Statutes, is amended to read:
3 408.036 Projects subject to review.--
4 (3) EXEMPTIONS.--Upon request, supported by such
5 documentation as the agency requires, the agency shall grant
6 an exemption from the provisions of subsection (1):
7 (h) For the establishment of a Medicare-certified home
8 health agency by a facility certified under chapter 651; a
9 retirement community, as defined in s. 400.404(2)(g) s.
10 400.404(2)(e); or a residential facility that serves only
11 retired military personnel, their dependents, and the
12 surviving dependents of deceased military personnel.
13 Medicare-reimbursed home health services provided through such
14 agency shall be offered exclusively to residents of the
15 facility or retirement community or to residents of facilities
16 or retirement communities owned, operated, or managed by the
17 same corporate entity. Each visit made to deliver
18 Medicare-reimbursable home health services to a home health
19 patient who, at the time of service, is not a resident of the
20 facility or retirement community shall be a deceptive and
21 unfair trade practice and constitutes a violation of ss.
22 501.201-501.213.
23
24 A request for exemption under this subsection may be made at
25 any time and is not subject to the batching requirements of
26 this section.
27 Section 23. Subsection (3) is added to section
28 394.4574, Florida Statutes, to read:
29 394.4574 Department responsibilities for a mental
30 health resident who resides in an assisted living facility
31 that holds a limited mental health license.--
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1 (3) The secretary of the department, in consultation
2 with the Agency for Health Care Administration, shall annually
3 require each district administrator to develop, with community
4 input, detailed plans that demonstrate how the district will
5 ensure the provision of state-funded mental health and
6 substance abuse treatment services to residents of assisted
7 living facilities that hold a limited mental health license.
8 These plans must be consistent with the alcohol, drug abuse,
9 and mental health district plan developed pursuant to s.
10 394.75 and must address case management services; access to
11 consumer-operated drop-in centers; access to services during
12 evenings, weekends, and holidays; supervision of the clinical
13 needs of the residents; and access to emergency psychiatric
14 care.
15 Section 24. Except as otherwise provided herein, this
16 act shall take effect October 1 of the year in which enacted.
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