House Bill 4035e1

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                                       CS/HB 4035, First Engrossed



  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; revising

16         provisions relating to injunctive relief;

17         requiring certain information to be provided to

18         residents' legal representatives; conforming

19         terminology and correcting references and cross

20         references; amending s. 419.001, F.S.;

21         correcting a cross reference; providing an

22         effective date.

23

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

25

26         Section 1.  Section 400.616, Florida Statutes, is

27  amended to read:

28         400.616  Short title.--This part Sections

29  400.616-400.629 may be cited as the "Adult Family-Care Home

30  Act."

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                                       CS/HB 4035, First Engrossed



  1         Section 2.  Section 400.617, Florida Statutes, is

  2  amended to read:

  3         400.617  Legislative intent; purpose.--

  4         (1)  The Legislature encourages the provision of care

  5  for disabled adults and frail elders aged persons in

  6  family-type living arrangements in private homes.

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

  8  personal care for disabled adults and frail elders who choose

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

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

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

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

13  homes in the state.

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

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

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

17  which may be provided directly or through contract or

18  agreement, is are intended to help residents remain as

19  independent as possible in order to delay or avoid placement

20  in a nursing home or other institution. Regulations governing

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

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

23  their needs and accommodate their preferences.

24         (4)  The Legislature further finds and declares that

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

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

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

28  administrative proceeding or circuit court action initiated by

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

30         (5)  Rules of the department relating to adult

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


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                                       CS/HB 4035, First Engrossed



  1  to ensure the protection of residents while minimizing the

  2  obstacles that could inhibit the establishment of adult

  3  family-care homes.

  4         Section 3.  Section 400.618, Florida Statutes, is

  5  amended to read:

  6         400.618  Definitions.--As used in this part ss.

  7  400.616-400.629, the term:

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

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

10  dressing, ambulating, and other similar tasks.

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

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

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

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

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

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

17  who are not relatives. The following establishments are not

18  adult family-care homes:

19         (a)  An establishment that provides personal care for

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

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

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

23  regularly provides such services.

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

25  provide personal care services only to their relatives.

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

27  living facility.

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

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

30  functional impairment, requires one or more personal services

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                                       CS/HB 4035, First Engrossed



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

  2  institutional care.

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

  4  Administration.

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

  6  noninstitutional living environment despite the physical or

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

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

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

10  changes.

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

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

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

14  resident.

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

16  that physically limits, restricts, or deprives an individual

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

18  convenience and not required for the treatment of medical

19  symptoms.

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

21  Affairs.

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

23  59 years of age, inclusive, who is a resident of the state and

24  who has one or more permanent physical or mental limitations

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

26  activities of daily living.

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

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

29  physical or mental limitations that restrict the person's

30  ability to perform the normal activities of daily living and

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


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                                       CS/HB 4035, First Engrossed



  1         (10)(9)  "Personal care" includes services" include,

  2  but are not limited to, individual assistance with or

  3  supervision of the activities of daily living and the

  4  self-administration of medication,; supervision of

  5  self-administered medication; and other similar services that

  6  the department defines by rule.

  7         (11)(10)  "Provider" means a person who is licensed to

  8  operate an adult family-care home.

  9         (12)(11)  "Relative" means an individual who is the

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

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

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

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

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

15  provider.

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

17  provider to supervise the residents during the provider's

18  absence.

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

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

21         Section 4.  Section 400.619, Florida Statutes, is

22  amended to read:

23         400.619  Licensure application and renewal

24  requirements.--

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

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

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

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

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

30  intends to operate the adult family-care home.

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                                       CS/HB 4035, First Engrossed



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

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

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

  4         (3)  Application for a license or annual license

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

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

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

  8  cost of training and education programs by the Department of

  9  Elderly Affairs for providers.

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

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

12  background screening as provided under chapter 435 on must

13  check with the abuse registry and the Department of Law

14  Enforcement concerning the adult family-care home provider

15  applicant, the designated relief person, all adult household

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

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

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

19  be provided at reasonable times for the appropriate officials

20  of the department, the Department of Health, the Department of

21  Children and Family and Rehabilitative Services, the agency,

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

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

24  safety standards, to inspect the facility to assure compliance

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

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

27  district long-term care ombudsman council.

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

29  of issuance unless revoked sooner.  Each license must state

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

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


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                                       CS/HB 4035, First Engrossed



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

  2  governing the residents or care offered in the adult

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

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

  5  the license fee.

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

  7  location or person other than the location and or person

  8  indicated on the license application for licensure.

  9         (8)  The licensed maximum capacity of each adult

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

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

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

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

14  or frail elder must be included in that limitation.

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

16  least one licensed space for a resident receiving optional

17  state supplementation as defined in s. 409.212.  The

18  department of Health and Rehabilitative Services shall specify

19  by rule the procedures to be followed for referring residents

20  who receive optional state supplementation to adult

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

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

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

24  requirement of designating one space for a resident receiving

25  optional state supplementation.

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

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

28  home into compliance with licensure requirements.  A

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

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

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                                       CS/HB 4035, First Engrossed



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

  2  establish criteria for issuing conditional licenses.

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

  4  for any of the following reasons:

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

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

  7  related to abuse, neglect, or exploitation.

  8         (b)  A proposed confirmed report that remains unserved

  9  and is maintained in the central abuse registry and tracking

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

11         (c)  An intentional or negligent act materially

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

13  family-care home residents.

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

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

16  comply with any restrictions specified in the license.

17         (e)  Submission of fraudulent or inaccurate information

18  to the agency.

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

20  person.

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

22  part.

23         (11)(12)  All moneys collected under this section must

24  be deposited into the Department of Elderly Affairs

25  Administrative Trust Fund and must be used to offset the

26  expenses of departmental training and education for adult

27  family-care home providers.

28         (12)(13)  The department shall adopt rules to implement

29  this section.

30         Section 5.  Section 400.6194, Florida Statutes, is

31  created to read:


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                                       CS/HB 4035, First Engrossed



  1         400.6194  Denial or revocation of a license.--The

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

  3  reasons:

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

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

  6  screening standards of s. 435.03.

  7         (2)  An intentional or negligent act materially

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

  9  family-care home residents.

10         (3)  Failure to comply with any restrictions specified

11  in the license.

12         (4)  Submission of fraudulent information or omission

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

14  document required by the agency.

15         (5)  Failure to pay an administrative fine assessed

16  under this part.

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

18  results in conditions or practices that directly threaten the

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

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

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

22         (8)  Failure to submit a completed initial license

23  application, or to complete a license renewal application

24  within the specified timeframe.

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

26  400.6196, Florida Statutes, is amended to read:

27         400.6196  Violations; penalties.--

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

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

30  person for:

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                                       CS/HB 4035, First Engrossed



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

  2  400.616-400.629.

  3         Section 7.  Paragraph (f) of subsection (1) of section

  4  400.621, Florida Statutes, is amended to read:

  5         400.621  Rules and standards relating to adult

  6  family-care homes.--

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

  8  appropriate living arrangement for each resident.  A resident

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

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

11  enrolled hospice patient and the resident's continued

12  residency is mutually agreeable to the resident and the

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

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

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

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

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

18  are amended to read:

19         400.6211  Training and education programs.--

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

21  are not limited to, information relating to:

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

23  persons and disabled adults and frail elders.

24         (3)  Providers must complete the training and education

25  program within a reasonable time determined by the department.

26  Failure to complete the training and education program within

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

28  400.616-400.629 and subjects the provider to revocation of the

29  license.

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

31  and Rehabilitative Services, the agency, or the department


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                                       CS/HB 4035, First Engrossed



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

  2  home which could be reduced through specific training or

  3  education beyond that required under this section, the agency

  4  department may require the provider or staff to complete such

  5  training or education.

  6         Section 9.  Section 400.622, Florida Statutes, is

  7  amended to read:

  8         400.622  Injunctive proceedings.--

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

10  Family Health and Rehabilitative Services, or the agency may

11  institute injunctive proceedings in a court of competent

12  jurisdiction to:

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

14  400.616-400.629 or any license requirement, minimum standard,

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

16  400.616-400.629; or

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

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

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

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

21         (2)  Such injunctive relief may be temporary or

22  permanent.

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

24  Statutes, is amended to read:

25         400.625  Residency agreements.--

26         (2)  Each residency agreement must specify the personal

27  care services and accommodations to be provided by the adult

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

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

30  provisions required by rule of the department.

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                                       CS/HB 4035, First Engrossed



  1         Section 11.  Section 400.6255, Florida Statutes, is

  2  amended to read:

  3         400.6255  Residents Patients with Alzheimer's disease

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

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

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

  7  or other related disorders must disclose in its advertisements

  8  or in a separate document those services that distinguish the

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

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

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

12  information about programs and services for persons with

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

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

15  documents in its records.  The agency department shall examine

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

17  part of the license renewal procedure.

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

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

20  amended to read:

21         400.628  Residents' bill of rights.--

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

23  legal representatives are made aware of the rights,

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

25  400.616-400.629. Residents must also be given the names,

26  addresses, and telephone numbers of the district ombudsman

27  council and the adult abuse registry where they may lodge

28  complaints.

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

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

31  take any other retaliatory action against any person who:


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

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

  3  Attorney General of a possible violation of this part these

  4  sections.

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

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

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

  8  testifies in any administrative or judicial proceeding arising

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

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

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

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

13  raised by the losing party.

14         Section 13.  Section 400.629, Florida Statutes, is

15  amended to read:

16         400.629  Civil actions to enforce rights.--Any person

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

18  400.616-400.629 are violated has a cause of action against any

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

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

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

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

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

24  brought in any court of competent jurisdiction to enforce such

25  rights and to recover actual damages, and punitive damages

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

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

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

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

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

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


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                                       CS/HB 4035, First Engrossed



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

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

  3  remedies provided in this section are in addition to other

  4  legal and administrative remedies available to a resident or

  5  to the agency department.

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

  7  419.001, Florida Statutes, is amended to read:

  8         419.001  Site selection of community residential

  9  homes.--

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

11  definitions shall apply:

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

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

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

15  a developmentally disabled person as defined in s.

16  393.063(11); a nondangerous mentally ill person as defined in

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

18  (14).

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

20  the year in which enacted.

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