House Bill 4035c1

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    Florida House of Representatives - 1998             CS/HB 4035

        By the Committee on Elder Affairs & Long Term Care and
    Representative Roberts-Burke





  1                      A bill to be entitled

  2         An act relating to adult family-care homes;

  3         amending ss. 400.616, 400.617, 400.618,

  4         400.619, 400.6196, 400.621, 400.6211, 400.622,

  5         400.625, 400.6255, 400.628, and 400.629, F.S.,

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

  7         legislative intent and purpose; revising

  8         definitions; requiring adult family-care home

  9         providers to meet certain screening

10         requirements; revising requirements for

11         licensure application and renewal; providing a

12         late renewal fee; revising grounds for denial,

13         suspension, or revocation of a license;

14         revising requirements for rules relating to

15         appropriate placement of residents; providing

16         certain limitations on rules; deleting

17         authority for rules relating to supervision of

18         residents; revising provisions relating to

19         injunctive relief; requiring certain

20         information to be provided to residents' legal

21         representatives; conforming terminology and

22         correcting references and cross references;

23         amending s. 419.001, F.S.; correcting a cross

24         reference; providing an effective date.

25

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

27

28         Section 1.  Section 400.616, Florida Statutes, is

29  amended to read:

30

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  1         400.616  Short title.--This part Sections

  2  400.616-400.629 may be cited as the "Adult Family-Care Home

  3  Act."

  4         Section 2.  Section 400.617, Florida Statutes, is

  5  amended to read:

  6         400.617  Legislative intent; purpose.--

  7         (1)  The Legislature encourages the provision of care

  8  for disabled adults and frail elders aged persons in

  9  family-type living arrangements in private homes.

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

11  personal care for disabled adults and frail elders who choose

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

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

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

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

16  homes in the state.

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

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

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

20  which may be provided directly or through contract or

21  agreement, is are intended to help residents remain as

22  independent as possible in order to delay or avoid placement

23  in a nursing home or other institution. Regulations governing

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

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

26  their needs and accommodate their preferences.

27         (4)  The Legislature further finds and declares that

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

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

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

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  1  administrative proceeding or circuit court action initiated by

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

  3         Section 3.  Section 400.618, Florida Statutes, is

  4  amended to read:

  5         400.618  Definitions.--As used in this part ss.

  6  400.616-400.629, the term:

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

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

  9  dressing, ambulating, and other similar tasks.

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

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

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

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

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

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

16  who are not relatives. The following establishments are not

17  adult family-care homes:

18         (a)  An establishment that provides personal care for

19  two services for three or fewer adults who do not receive

20  optional state supplementation under s. 409.212, but that does

21  not hold itself out to the public to be an establishment that

22  regularly provides such services.

23         (b)  An establishment in which a person or persons

24  provide personal care services only to their relatives.

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

26  living facility.

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

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

29  functional impairment, requires one or more personal services

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

31  institutional care.

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  1         (3)(4)  "Agency" means the Agency for Health Care

  2  Administration.

  3         (4)(5)  "Aging in place" means remaining in a

  4  noninstitutional living environment despite the physical or

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

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

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

  8  changes.

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

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

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

12  resident.

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

14  that physically limits, restricts, or deprives an individual

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

16  convenience and not required for the treatment of medical

17  symptoms.

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

19  Affairs.

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

21  59 years of age, inclusive, who is a resident of the state and

22  who has one or more permanent physical or mental limitations

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

24  activities of daily living.

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

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

27  physical or mental limitations that restrict the person's

28  ability to perform the normal activities of daily living and

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

30         (10)(9)  "Personal care" includes services" include,

31  but are not limited to, individual assistance with or

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  1  supervision of the activities of daily living and the

  2  self-administration of medication,; supervision of

  3  self-administered medication; and other similar services that

  4  the department defines by rule.

  5         (11)(10)  "Provider" means a person who is licensed to

  6  operate an adult family-care home.

  7         (12)(11)  "Relative" means an individual who is the

  8  father, mother, son, daughter, brother, sister, uncle, aunt,

  9  first cousin, nephew, niece, husband, wife, father-in-law,

10  mother-in-law, son-in-law, daughter-in-law, brother-in-law,

11  sister-in-law, stepfather, stepmother, stepson, stepdaughter,

12  stepbrother, stepsister, half brother, or half sister of a

13  provider.

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

15  provider to supervise the residents during the provider's

16  absence.

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

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

19         Section 4.  Section 400.619, Florida Statutes, is

20  amended to read:

21         400.619  Licensure application and renewal

22  requirements.--

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

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

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

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

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

28  intends to operate the adult family-care home.

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

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

31  adult family-care home that is to be licensed.

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  1         (3)  Application for a license or annual license

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

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

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

  5  cost of training and education programs by the Department of

  6  Elderly Affairs for providers.

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

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

  9  background screening as provided under chapter 435 on must

10  check with the abuse registry and the Department of Law

11  Enforcement concerning the adult family-care home provider

12  applicant, the designated relief person, all adult household

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

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

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

16  be provided at reasonable times for the appropriate officials

17  of the department, the Department of Health, the Department of

18  Children and Family and Rehabilitative Services, the agency,

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

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

21  safety standards, to inspect the facility to assure compliance

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

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

24  district long-term care ombudsman council.

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

26  of issuance unless revoked sooner.  Each license must state

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

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

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

30  governing the residents or care offered in the adult

31  family-care home. Failure to timely file a license renewal

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  1  application shall result in a late fee equal to 50 percent of

  2  the license fee.

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

  4  location or person other than the location and or person

  5  indicated on the license application for licensure.

  6         (8)  The licensed maximum capacity of each adult

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

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

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

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

11  or frail elder must be included in that limitation.

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

13  least one licensed space for a resident receiving optional

14  state supplementation as defined in s. 409.212.  The

15  department of Health and Rehabilitative Services shall specify

16  by rule the procedures to be followed for referring residents

17  who receive optional state supplementation to adult

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

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

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

21  requirement of designating one space for a resident receiving

22  optional state supplementation.

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

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

25  home into compliance with licensure requirements.  A

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

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

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

29  establish criteria for issuing conditional licenses.

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

31  for any of the following reasons:

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

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

  3  related to abuse, neglect, or exploitation.

  4         (b)  A proposed confirmed report that remains unserved

  5  and is maintained in the central abuse registry and tracking

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

  7         (c)  An intentional or negligent act materially

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

  9  family-care home residents.

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

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

12  comply with any restrictions specified in the license.

13         (e)  Submission of fraudulent or inaccurate information

14  to the agency.

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

16  person.

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

18  part.

19         (11)(12)  All moneys collected under this section must

20  be deposited into the Department of Elderly Affairs

21  Administrative Trust Fund and must be used to offset the

22  expenses of departmental training and education for adult

23  family-care home providers.

24         (12)(13)  The department shall adopt rules to implement

25  this section.

26         Section 5.  Section 400.6194, Florida Statutes, is

27  created to read:

28         400.6194  Denial or revocation of a license.--The

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

30  reasons:

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

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

  3  screening standards of s. 435.03.

  4         (2)  An intentional or negligent act materially

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

  6  family-care home residents.

  7         (3)  Failure to comply with any restrictions specified

  8  in the license.

  9         (4)  Submission of fraudulent information or omission

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

11  document required by the agency.

12         (5)  Failure to pay an administrative fine assessed

13  under this part.

14         (6)  A violation of this part or adopted rules which

15  results in conditions or practices that directly threaten the

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

17         (7)  Failure to correct cited fire code violations that

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

19         (8)  Failure to submit a completed initial license

20  application, or to complete a license renewal application

21  within the specified timeframe.

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

23  400.6196, Florida Statutes, is amended to read:

24         400.6196  Violations; penalties.--

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

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

27  person for:

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

29  400.616-400.629.

30         Section 7.  Section 400.621, Florida Statutes, is

31  amended to read:

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  1         400.621  Rules and standards relating to adult

  2  family-care homes.--

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

  4  Department of Children and Family Health and Rehabilitative

  5  Services and the agency, by rule, establish minimum standards

  6  and licensure procedures for adult family-care homes.  The

  7  rules must, at a minimum:

  8         (a)  Provide for the health, safety, and well-being of

  9  each resident in the adult family-care home.

10         (b)  Provide procedures for annual license renewal,

11  prevention of abuse, proper management of each resident's

12  property and personal affairs, inspections, and records and

13  reports.

14         (c)  Promote the growth of adult family-care homes as a

15  component of a long-term care system.

16         (d)  Promote the goal of aging in place.

17         (e)  Mandate compliance with chapter 419.

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

19  appropriate living arrangement for each resident.  A resident

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

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

22  enrolled hospice patient and the resident's continued

23  residency is mutually agreeable to the resident and the

24  provider.  A person who would not be an appropriate resident

25  in any assisted living facility under s. 400.426 would not be

26  an appropriate resident in an adult family-care home.

27         (g)  Assure the least possible disruption of residents'

28  lives when an adult family-care home is closed.

29         (h)  Provide procedures to protect the residents'

30  rights as provided in s. 400.628.

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  1         (2)  The department and agency rules that implement

  2  regulatory requirements for adult family-care homes shall be

  3  as minimal and flexible as possible, to ensure the protection

  4  of residents while minimizing obstacles that could inhibit the

  5  establishment of adult family-care homes.

  6         (3)(2)  Minimum firesafety standards shall be

  7  established and enforced by the State Fire Marshal in

  8  cooperation with the department and the agency.  Such

  9  standards must be included in the rules adopted by the

10  department after consultation with the State Fire Marshal and

11  the agency.

12         (3)  The department shall by rule establish standards

13  for the adequate supervision of adult family-care residents.

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

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

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

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

18  those new or revised rules and standards.

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

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

21  are amended to read:

22         400.6211  Training and education programs.--

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

24  are not limited to, information relating to:

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

26  persons and disabled adults and frail elders.

27         (3)  Providers must complete the training and education

28  program within a reasonable time determined by the department.

29  Failure to complete the training and education program within

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

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  1  400.616-400.629 and subjects the provider to revocation of the

  2  license.

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

  4  and Rehabilitative Services, the agency, or the department

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

  6  home which could be reduced through specific training or

  7  education beyond that required under this section, the agency

  8  department may require the provider or staff to complete such

  9  training or education.

10         Section 9.  Section 400.622, Florida Statutes, is

11  amended to read:

12         400.622  Injunctive proceedings.--

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

14  Family Health and Rehabilitative Services, or the agency may

15  institute injunctive proceedings in a court of competent

16  jurisdiction to:

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

18  400.616-400.629 or any license requirement, minimum standard,

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

20  400.616-400.629; or

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

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

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

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

25         (2)  Such injunctive relief may be temporary or

26  permanent.

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

28  Statutes, is amended to read:

29         400.625  Residency agreements.--

30         (2)  Each residency agreement must specify the personal

31  care services and accommodations to be provided by the adult

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

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

  3  provisions required by rule of the department.

  4         Section 11.  Section 400.6255, Florida Statutes, is

  5  amended to read:

  6         400.6255  Residents Patients with Alzheimer's disease

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

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

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

10  or other related disorders must disclose in its advertisements

11  or in a separate document those services that distinguish the

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

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

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

15  information about programs and services for persons with

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

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

18  documents in its records.  The agency department shall examine

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

20  part of the license renewal procedure.

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

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

23  amended to read:

24         400.628  Residents' bill of rights.--

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

26  legal representatives are made aware of the rights,

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

28  400.616-400.629. Residents must also be given the names,

29  addresses, and telephone numbers of the district ombudsman

30  council and the adult abuse registry where they may lodge

31  complaints.

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

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

  3  take any other retaliatory action against any person who:

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

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

  6  Attorney General of a possible violation of this part these

  7  sections.

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

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

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

11  testifies in any administrative or judicial proceeding arising

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

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

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

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

16  raised by the losing party.

17         Section 13.  Section 400.629, Florida Statutes, is

18  amended to read:

19         400.629  Civil actions to enforce rights.--Any person

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

21  400.616-400.629 are violated has a cause of action against any

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

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

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

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

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

27  brought in any court of competent jurisdiction to enforce such

28  rights and to recover actual damages, and punitive damages

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

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

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

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

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

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

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

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

  6  remedies provided in this section are in addition to other

  7  legal and administrative remedies available to a resident or

  8  to the agency department.

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

10  419.001, Florida Statutes, is amended to read:

11         419.001  Site selection of community residential

12  homes.--

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

14  definitions shall apply:

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

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

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

18  a developmentally disabled person as defined in s.

19  393.063(11); a nondangerous mentally ill person as defined in

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

21  (14).

22         Section 15.  This act shall take effect on October 1 of

23  the year in which enacted.

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