CODING: Words stricken are deletions; words underlined are additions.


H

Senator Turner moved the following amendment:



                                                  SENATE AMENDMENT

    Bill No. CS/HB 4035, 1st Eng.

    Amendment No.    

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11  Senator Turner moved the following amendment:

12

13         Senate Amendment (with title amendment) 

14         Delete everything after the enacting clause

15

16  and insert:

17         Section 1.  Section 400.616, Florida Statutes, is

18  amended to read:

19         400.616  Short title.--This part Sections

20  400.616-400.629 may be cited as the "Adult Family-Care Home

21  Act."

22         Section 2.  Section 400.617, Florida Statutes, is

23  amended to read:

24         400.617  Legislative intent; purpose.--

25         (1)  The Legislature encourages the provision of care

26  for disabled adults and frail elders aged persons in

27  family-type living arrangements in private homes.

28         (2)  Adult family-care homes provide housing and

29  personal care for disabled adults and frail elders who choose

30  to live with an individual or family in a private home. The

31  adult family-care home provider must live in the home. The

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 4035, 1st Eng.

    Amendment No.    





 1  purpose of this part ss. 400.616-400.629 is to provide for the

 2  health, safety, and welfare of residents of adult family-care

 3  homes in the state.

 4         (3)  The Legislature recognizes that adult family-care

 5  homes are an important part of the continuum of long-term

 6  care. The personal care services available in these homes,

 7  which may be provided directly or through contract or

 8  agreement, is are intended to help residents remain as

 9  independent as possible in order to delay or avoid placement

10  in a nursing home or other institution. Regulations governing

11  adult family-care homes must be sufficiently flexible to allow

12  residents to age in place if resources are available to meet

13  their needs and accommodate their preferences.

14         (4)  The Legislature further finds and declares that

15  licensure under this part ss. 400.616-400.629 is a public

16  trust and a privilege, and not an entitlement.  This principle

17  must guide the finder of fact or trier of law at any

18  administrative proceeding or circuit court action initiated by

19  the department to enforce this part ss. 400.616-400.629.

20         (5)  Rules of the department relating to adult

21  family-care homes shall be as minimal and flexible as possible

22  to ensure the protection of residents while minimizing the

23  obstacles that could inhibit the establishment of adult

24  family-care homes.

25         Section 3.  Section 400.618, Florida Statutes, is

26  amended to read:

27         400.618  Definitions.--As used in this part ss.

28  400.616-400.629, the term:

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

30  tasks for self-care, including eating, bathing, grooming,

31  dressing, ambulating, and other similar tasks.

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 4035, 1st Eng.

    Amendment No.    





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

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

 3  a person or persons provide, for profit or not for profit,

 4  room, board, and personal care one or more personal services,

 5  as appropriate for the level of functional impairment, for no

 6  more than five aged persons or disabled adults or frail elders

 7  who are not relatives. The following establishments are not

 8  adult family-care 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 care must own or rent the home and reside therein.

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

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

19  which a person or persons provide personal services only to

20  his or her their relatives.

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

22  living facility under part III.

23         (3)  "Aged person" means any person age 60 or over who

24  is currently a resident of the state and who, because of a

25  functional impairment, requires one or more personal services

26  but does not require 24-hour skilled nursing home or

27  institutional care.

28         (3)(4)  "Agency" means the Agency for Health Care

29  Administration.

30         (4)(5)  "Aging in place" means remaining in a

31  noninstitutional living environment despite the physical or

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 4035, 1st Eng.

    Amendment No.    





 1  mental changes that may occur in a person who is aging.  For

 2  aging in place to occur, needed services are added, increased,

 3  or adjusted to compensate for a person's physical or mental

 4  changes.

 5         (5)  "Appropriate placement" means that the resident's

 6  needs can be met by the adult family-care home or can be met

 7  by services arranged by the adult family-care home or the

 8  resident.

 9         (6)  "Chemical restraint" means a pharmacologic drug

10  that physically limits, restricts, or deprives an individual

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

12  convenience and not required for the treatment of medical

13  symptoms.

14         (7)  "Department" means the Department of Elderly

15  Affairs.

16         (8)  "Disabled adult" means any person between 18 and

17  59 years of age, inclusive, who is a resident of the state and

18  who has one or more permanent physical or mental limitations

19  that restrict the person's ability to perform the normal

20  activities of daily living.

21         (9)  "Frail elder" means a functionally impaired

22  elderly person who is 60 years of age or older and who has

23  physical or mental limitations that restrict the person's

24  ability to perform the normal activities of daily living and

25  that impede the person's capacity to live independently.

26         (10)(9)  "Personal services" or "personal care"

27  includes include, but are not limited to, individual

28  assistance with or supervision of the activities of daily

29  living and the self-administration of medication,; supervision

30  of self-administered medication; and other similar services

31  that the department defines by rule.

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 4035, 1st Eng.

    Amendment No.    





 1         (11)(10)  "Provider" means a person who is licensed to

 2  operate an adult family-care home.

 3         (12)(11)  "Relative" means an individual who is the

 4  father, mother, son, daughter, brother, sister, grandfather,

 5  grandmother, greatgrandfather, and greatgrandmother, uncle,

 6  aunt, first cousin, nephew, niece, husband, wife,

 7  father-in-law, mother-in-law, son-in-law, daughter-in-law,

 8  brother-in-law, sister-in-law, stepfather, stepmother,

 9  stepson, stepdaughter, stepbrother, stepsister, half brother,

10  or half sister of a provider.

11         (13)  "Relief person" means an adult designated by the

12  provider to supervise the residents during the provider's

13  absence.

14         (14)  "Resident" means a person receiving room, board,

15  and personal care in an adult family-care home.

16         Section 4.  Section 400.619, Florida Statutes, is

17  amended to read:

18         400.619  Licensure application and renewal

19  requirements.--

20         (1)  Each person who intends to be a provider of an

21  adult family-care home provider must apply for obtain a

22  license from the agency before caring for a disabled adult or

23  an aged person in the adult family-care home.  Such

24  application must be made at least 90 days before the applicant

25  intends to operate the adult family-care home.

26         (2)  A person who intends to be a provider of an adult

27  family-care home provider must own or rent and live in the

28  adult family-care home that is to be licensed and reside

29  therein.

30         (3)  Application for a license or annual license

31  renewal to operate an adult family-care home must be made on a

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 4035, 1st Eng.

    Amendment No.    





 1  form provided by the agency, signed under oath, and must be

 2  accompanied by a licensing fee of $100 per year to offset the

 3  cost of training and education programs by the Department of

 4  Elderly Affairs for providers.

 5         (4)  Upon receipt of a license application or license

 6  renewal, and the fee, the agency shall conduct a level 1

 7  background screening as provided under chapter 435 on must

 8  check with the abuse registry and the Department of Law

 9  Enforcement concerning the adult family-care home provider

10  applicant, the designated relief person, all adult household

11  members, and all staff members. The agency shall also conduct

12  an onsite visit to the home that is to be licensed.

13         (5)  Access to a licensed adult family-care home must

14  be provided at reasonable times for the appropriate officials

15  of the department, the Department of Health, the Department of

16  Children and Family and Rehabilitative Services, the agency,

17  and the State Fire Marshal, who are responsible for the

18  development and maintenance of fire, health, sanitary, and

19  safety standards, to inspect the facility to assure compliance

20  with these standards.  In addition, access to a licensed adult

21  family-care home must be provided at reasonable times for the

22  district long-term care ombudsman council.

23         (6)  A license is effective for 1 year after the date

24  of issuance unless revoked sooner.  Each license must state

25  the name of the provider, the address of the home to which the

26  license applies, and the maximum number of residents of the

27  home. Failure to timely file a license renewal application

28  shall result in a late fee equal to 50 percent of the license

29  fee. A license may be issued with or without restrictions

30  governing the residents or care offered in the adult

31  family-care home.

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 4035, 1st Eng.

    Amendment No.    





 1         (7)  A license is not transferable or applicable to any

 2  location or person other than the location and or person

 3  indicated on the license application for licensure.

 4         (8)  The licensed maximum capacity of each adult

 5  family-care home is based on the service needs of the

 6  residents and the capability of the provider to meet the needs

 7  of the residents. Any relative who lives in the adult

 8  family-care home and who is an aged person or a disabled adult

 9  or frail elder must be included in that limitation.

10         (9)  Each adult family-care home must designate at

11  least one licensed space for a resident receiving optional

12  state supplementation as defined in s. 409.212.  The

13  department of Health and Rehabilitative Services shall specify

14  by rule the procedures to be followed for referring residents

15  who receive optional state supplementation to adult

16  family-care homes.  Those homes licensed as adult foster homes

17  or assisted living facilities prior to January 1, 1994, that

18  convert to adult family-care homes, are exempt from this the

19  requirement of designating one space for a resident receiving

20  optional state supplementation.

21         (10)  The agency may issue a conditional license to a

22  provider for the purpose of bringing the adult family-care

23  home into compliance with licensure requirements.  A

24  conditional license must be limited to a specific period, not

25  exceeding 6 months, as determined by the department, in

26  consultation with the agency.  The department shall, by rule,

27  establish criteria for issuing conditional licenses.

28         (11)  The agency may deny, suspend, or revoke a license

29  for any of the following reasons:

30         (a)  A confirmed report, obtained under s. 415.1075, of

31  abuse, neglect, or exploitation, or conviction of a crime

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 4035, 1st Eng.

    Amendment No.    





 1  related to abuse, neglect, or exploitation.

 2         (b)  A proposed confirmed report that remains unserved

 3  and is maintained in the central abuse registry and tracking

 4  system pursuant to s. 415.1065(2)(c).

 5         (c)  An intentional or negligent act materially

 6  affecting the health, safety, or welfare of the adult

 7  family-care home residents.

 8         (d)  A violation of ss. 400.616-400.629 or rules

 9  adopted under ss. 400.616-400.629, including the failure to

10  comply with any restrictions specified in the license.

11         (e)  Submission of fraudulent or inaccurate information

12  to the agency.

13         (f)  Conviction of a felony involving violence to a

14  person.

15         (g)  Failure to pay a civil penalty assessed under this

16  part.

17         (11)(12)  All moneys collected under this section must

18  be deposited into the Department of Elderly Affairs

19  Administrative Trust Fund and must be used to offset the

20  expenses of departmental training and education for adult

21  family-care home providers.

22         (12)(13)  The department shall adopt rules to implement

23  this section.

24         Section 5.  Section 400.6194, Florida Statutes, is

25  created to read:

26         400.6194  Denial or revocation of a license.--The

27  agency may deny or revoke a license for any of the following

28  reasons:

29         (1)  Failure of any of the persons required to undergo

30  background screening under s. 400.619 to meet the level 1

31  screening standards of s. 435.03.

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 4035, 1st Eng.

    Amendment No.    





 1         (2)  An intentional or negligent act materially

 2  affecting the health, safety, or welfare of the adult

 3  family-care home residents.

 4         (3)  Submission of fraudulent information or omission

 5  of any material fact on a license application or any other

 6  document required by the agency.

 7         (4)  Failure to pay an administrative fine assessed

 8  under this part.

 9         (5)  A violation of this part or adopted rules which

10  results in conditions or practices that directly threaten the

11  physical or emotional health, safety, or welfare of residents.

12         (6)  Failure to correct cited fire code violations that

13  threaten the health, safety, or welfare of residents.

14         (7)  Failure to submit a completed initial license

15  application, or to complete a license renewal application

16  within the specified timeframe.

17         Section 6.  Paragraph (b) of subsection (1) of section

18  400.6196, Florida Statutes, is amended to read:

19         400.6196  Violations; penalties.--

20         (1)  In addition to any other liability or penalty

21  provided by law, the agency may impose a civil penalty on a

22  person for:

23         (b)  Violating any rule adopted under this part ss.

24  400.616-400.629.

25         Section 7.  Paragraph (f) of subsection (1) and

26  subsection (4) of section 400.621, Florida Statutes, are

27  amended to read:

28         400.621  Rules and standards relating to adult

29  family-care homes.--

30         (1)  The department shall, in consultation with the

31  Department of Health and Rehabilitative Services and the

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 4035, 1st Eng.

    Amendment No.    





 1  agency, by rule, establish minimum standards and licensure

 2  procedures for adult family-care homes. The rules must, at a

 3  minimum:

 4         (f)  Assure that an adult family-care home is the

 5  appropriate living arrangement for each resident. A resident

 6  who requires 24-hour nursing supervision may not be retained

 7  in an adult family-care home unless such resident is an

 8  enrolled hospice patient and the resident's continued

 9  residency is mutually agreeable to the resident and the

10  provider. A person who would not be an appropriate resident in

11  any assisted living facility under s. 400.426 would not be an

12  appropriate resident in an adult family care home.

13         (4)  The provider of any adult family-care home that is

14  in operation at the time any rules are adopted or amended

15  under this part ss. 400.616-400.629 may be given a reasonable

16  time, not exceeding 6 months, within which to comply with

17  those new or revised rules and standards.

18         Section 8.  Paragraph (c) of subsection (2) and

19  subsections (3) and (4) of section 400.6211, Florida Statutes,

20  are amended to read:

21         400.6211  Training and education programs.--

22         (2)  Training and education programs must include, but

23  are not limited to, information relating to:

24         (c)  Identifying and meeting the special needs of aged

25  persons and disabled adults and frail elders.

26         (3)  Providers must complete the training and education

27  program within a reasonable time determined by the department.

28  Failure to complete the training and education program within

29  the time set by the department is a violation of this part ss.

30  400.616-400.629 and subjects the provider to revocation of the

31  license.

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 4035, 1st Eng.

    Amendment No.    





 1         (4)  If the Department of Children and Family Health

 2  and Rehabilitative Services, the agency, or the department

 3  determines that there are problems in an adult family-care

 4  home which could be reduced through specific training or

 5  education beyond that required under this section, the agency

 6  department may require the provider or staff to complete such

 7  training or education.

 8         Section 9.  Section 400.622, Florida Statutes, is

 9  amended to read:

10         400.622  Injunctive proceedings.--

11         (1)  The department, the Department of Children and

12  Family Health and Rehabilitative Services, or the agency may

13  institute injunctive proceedings in a court of competent

14  jurisdiction to:

15         (1)(a)  Enforce the provisions of this part ss.

16  400.616-400.629 or any license requirement, minimum standard,

17  rule, or order issued or entered into under this part ss.

18  400.616-400.629; or

19         (2)(b)  Terminate the operation of an adult family-care

20  home when violations of any license requirement, standard, or

21  rule adopted under this part ss. 400.616-400.629 exist which

22  materially affect the health, safety, or welfare of residents.

23         (2)  Such injunctive relief may be temporary or

24  permanent.

25         Section 10.  Subsection (2) of section 400.625, Florida

26  Statutes, is amended to read:

27         400.625  Residency agreements.--

28         (2)  Each residency agreement must specify the personal

29  care services and accommodations to be provided by the adult

30  family-care home, the rates or charges, a requirement of at

31  least 30 days' notice before a rate increase, and any other

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 4035, 1st Eng.

    Amendment No.    





 1  provisions required by rule of the department.

 2         Section 11.  Section 400.6255, Florida Statutes, is

 3  amended to read:

 4         400.6255  Residents Patients with Alzheimer's disease

 5  or other related disorders; certain disclosures.--An adult

 6  family-care home licensed under this part which claims that it

 7  provides special care for persons who have Alzheimer's disease

 8  or other related disorders must disclose in its advertisements

 9  or in a separate document those services that distinguish the

10  care as being especially applicable to, or suitable for, such

11  persons. The home must give a copy of all such advertisements

12  or a copy of the document to each person who requests

13  information about programs and services for persons with

14  Alzheimer's disease or other related disorders offered by the

15  home and must maintain a copy of all such advertisements and

16  documents in its records.  The agency department shall examine

17  all such advertisements and documents in the home's records as

18  part of the license renewal procedure.

19         Section 12.  Subsections (2) and (6) and paragraph (c)

20  of subsection (4) of section 400.628, Florida Statutes, are

21  amended to read:

22         400.628  Residents' bill of rights.--

23         (2)  The provider shall ensure that residents and their

24  legal representatives are made aware of the rights,

25  obligations, and prohibitions set forth in this part ss.

26  400.616-400.629. Residents must also be given the names,

27  addresses, and telephone numbers of the district ombudsman

28  council and the adult abuse registry where they may lodge

29  complaints.

30         (4)  A provider or staff of an adult family-care home

31  may not serve notice upon a resident to leave the premises or

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 4035, 1st Eng.

    Amendment No.    





 1  take any other retaliatory action against any person who:

 2         (c)  Files a civil action alleging a violation of this

 3  part ss. 400.616-400.629 or notifies a state attorney or the

 4  Attorney General of a possible violation of this part these

 5  sections.

 6         (6)  Any person who reports a complaint concerning a

 7  suspected violation of this part ss. 400.616-400.629 or the

 8  services and conditions in an adult family-care home, or who

 9  testifies in any administrative or judicial proceeding arising

10  from such a complaint, is immune from any civil or criminal

11  liability therefor, unless the person acted in bad faith or

12  with malicious purpose or the court finds that there was a

13  complete absence of a justiciable issue of either law or fact

14  raised by the losing party.

15         Section 13.  Section 400.629, Florida Statutes, is

16  amended to read:

17         400.629  Civil actions to enforce rights.--Any person

18  or resident whose rights as specified in this part ss.

19  400.616-400.629 are violated has a cause of action against any

20  adult family-care home, provider, or staff responsible for the

21  violation.  The action may be brought by the resident or the

22  resident's guardian, or by a person or organization acting on

23  behalf of a resident with the consent of the resident or the

24  resident's guardian, to enforce the right.  The action may be

25  brought in any court of competent jurisdiction to enforce such

26  rights and to recover actual damages, and punitive damages

27  when malicious, wanton, or willful disregard of the rights of

28  others can be shown.  Any plaintiff who prevails in any such

29  action is entitled to recover reasonable attorney's fees,

30  costs of the action, and damages, unless the court finds that

31  the plaintiff has acted in bad faith or with malicious purpose

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 4035, 1st Eng.

    Amendment No.    





 1  or that there was a complete absence of a justiciable issue of

 2  either law or fact.  A prevailing defendant is entitled to

 3  recover reasonable attorney's fees pursuant to s. 57.105.  The

 4  remedies provided in this section are in addition to other

 5  legal and administrative remedies available to a resident or

 6  to the agency department.

 7         Section 14.  Paragraph (d) of subsection (1) of section

 8  419.001, Florida Statutes, is amended to read:

 9         419.001  Site selection of community residential

10  homes.--

11         (1)  For the purposes of this section, the following

12  definitions shall apply:

13         (d)  "Resident" means any of the following:  a frail

14  elder an aged person as defined in s. 400.618(3); a physically

15  disabled or handicapped person as defined in s. 760.22(7)(a);

16  a developmentally disabled person as defined in s.

17  393.063(11); a nondangerous mentally ill person as defined in

18  s. 394.455(18)(16); or a child as defined in s. 39.01(12) and

19  (14).

20         Section 15.  This act shall take effect on October 1,

21  1998.

22

23

24  ================ T I T L E   A M E N D M E N T ===============

25  And the title is amended as follows:

26         Delete everything before the enacting clause

27

28  and insert:

29                      A bill to be entitled

30         An act relating to adult family-care homes;

31         amending ss. 400.616, 400.617, 400.618,

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 4035, 1st Eng.

    Amendment No.    





 1         400.619, 400.6196, 400.621, 400.6211, 400.622,

 2         400.625, 400.6255, 400.628, and 400.629, F.S.,

 3         and creating s. 400.6194, F.S.; revising

 4         legislative intent and purpose; revising

 5         definitions; requiring adult family-care home

 6         providers to meet certain screening

 7         requirements; revising requirements for

 8         licensure application and renewal; providing a

 9         late renewal fee; revising grounds for denial,

10         suspension, or revocation of a license;

11         revising requirements for rules relating to

12         appropriate placement of residents; revising

13         provisions relating to injunctive relief;

14         requiring certain information to be provided to

15         residents' legal representatives; conforming

16         terminology, references, and cross-references;

17         amending s. 419.001, F.S.; conforming a

18         cross-reference; providing an effective date.

19

20

21

22

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27

28

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31

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