House Bill 4517

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    Florida House of Representatives - 1998                HB 4517

        By the Committee on Elder Affairs & Long Term Care and
    Representative Brooks





  1                      A bill to be entitled

  2         An act relating to the care of elderly persons

  3         (RAB); amending s. 400.404, F.S., relating to

  4         facilities to be licensed; providing an

  5         exemption; amending s. 400.424, F.S.; providing

  6         requirements for the contract executed between

  7         the licensee and the resident of an assisted

  8         living facility; authorizing the department to

  9         adopt rules; amending s. 400.427, F.S.;

10         revising requirements for facilities with

11         respect to obtaining surety bonds; authorizing

12         the department to adopt rules; creating s.

13         400.4275, F.S.; providing requirements relating

14         to business practices and records; authorizing

15         the department to adopt rules; amending s.

16         400.441, F.S.; revising provisions relating to

17         minimum standards established by department

18         rules; authorizing rules relating to waivers;

19         amending s. 400.442, F.S.; authorizing certain

20         rules relating to pharmacy and dietary

21         services; amending s. 400.444, F.S.;

22         authorizing certain rules relating to

23         construction requirements; amending s. 400.619,

24         F.S.; revising requirements for licensure to

25         operate an adult family-care home; amending s.

26         400.6196, F.S.; providing violations and

27         penalties; authorizing the department to adopt

28         rules; amending s. 400.621, F.S.; providing

29         additional authority and requirements for rules

30         for adult family-care homes; amending s.

31         400.6211, F.S., relating to training and

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  1         educational programs; authorizing the

  2         department to adopt rules; amending s. 409.212,

  3         F.S.; requiring facilities with residents

  4         receiving optional supplementation to comply

  5         with certain federal requirements; providing an

  6         effective date.

  7

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

  9

10         Section 1.  Subsection (2) of section 400.404, Florida

11  Statutes, is amended to read:

12         400.404  Facilities to be licensed; exemptions.--

13         (2)  The following are exempt from this part:

14         (a)  Any facility, institution, or other place operated

15  by the Federal Government or any agency of the Federal

16  Government.

17         (b)  Any facility or part of a facility licensed under

18  chapter 393 or chapter 394.

19         (c)  Any home or facility approved by the United States

20  Department of Veterans Affairs as a residential care home

21  wherein care is provided exclusively to three or fewer

22  veterans.

23         (d)  Any facility that has been incorporated in this

24  state for 50 years or more on or before July 1, 1983, and the

25  board of directors of which is nominated or elected by the

26  residents, until the facility is sold or its ownership is

27  transferred; or any facility, with improvements or additions

28  thereto, which has existed and operated continuously in this

29  state for 60 years or more on or before July 1, 1989, is

30  directly or indirectly owned and operated by a nationally

31  recognized fraternal organization, is not open to the public,

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  1  and accepts only its own members and their spouses as

  2  residents.

  3         (e)  Any facility certified under chapter 651, or a

  4  retirement community, may provide services authorized under

  5  this part or part IV of this chapter to its residents who live

  6  in single-family homes, duplexes, quadruplexes, or apartments

  7  located on the campus without obtaining a license to operate

  8  an assisted living facility if residential units within such

  9  buildings are used by residents who do not require staff

10  supervision for that portion of the day when personal services

11  are not being delivered and the owner obtains a home health

12  license to provide such services.  However, any building or

13  distinct part of a building on the campus that is designated

14  for persons who receive personal services and require

15  supervision beyond that which is available while such services

16  are being rendered must be licensed in accordance with this

17  part. If a facility provides personal services to residents

18  who do not otherwise require supervision and the owner is not

19  licensed as a home health agency, the buildings or distinct

20  parts of buildings where such services are rendered must be

21  licensed under this part. A resident of a facility that

22  obtains a home health license may contract with a home health

23  agency of his or her choice, provided that the home health

24  agency provides liability insurance and workers' compensation

25  coverage for its employees. Facilities covered by this

26  exemption may establish policies that give residents the

27  option of contracting for services and care beyond that which

28  is provided by the facility to enable them to age in place.

29  For purposes of this section, a retirement community consists

30  of a facility licensed under this part or under part II, and

31

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  1  apartments designed for independent living located on the same

  2  campus.

  3         (f)  Any residential unit for independent living which

  4  is located within a facility certified under chapter 651 or

  5  which is colocated with a nursing home licensed under part II

  6  or a facility licensed under this part in which services are

  7  provided through an outpatient clinic or the nursing home on

  8  an outpatient basis.

  9         Section 2.  Subsections (1), (2), (3), and (5) of

10  section 400.424, Florida Statutes, are amended, and subsection

11  (8) is added to said section, to read:

12         400.424  Contracts.--

13         (1)  The presence of each resident in a facility shall

14  be covered by a contract, executed at the time of admission or

15  prior thereto, between the licensee and the resident or his or

16  her designee or legal representative. Each party to the

17  contract shall be provided with a duplicate original thereof,

18  and the licensee shall keep on file in the facility all such

19  contracts.  The licensee may shall not destroy or otherwise

20  dispose of any such contract until 5 years after its

21  expiration or such longer period as may be provided in the

22  rules of the department.

23         (2)  Each contract must shall contain express

24  provisions specifically setting forth the services and

25  accommodations to be provided by the facility; the rates or

26  charges; provision for at least 30 days' written notice of a

27  rate increase; the rights, duties, and obligations of the

28  residents, other than those specified in s. 400.428; and other

29  matters that which the parties deem appropriate. Whenever

30  money is deposited or advanced by a resident in a contract as

31

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  1  security for performance of the contract agreement or as

  2  advance rent for other than the next immediate rental period:

  3         (a)  Such funds shall be deposited held in a banking

  4  institution in this state that is. Funds held shall be kept

  5  separate from the funds and property of the facility; shall be

  6  deposited in a bank savings association, trust company, or

  7  credit union located in this state and, if possible, located,

  8  if possible, in the same community district in which the

  9  facility is located; shall be kept separate from the funds and

10  property of the facility; may not be represented as part of

11  the assets of the facility on financial statements; and shall

12  be used, or otherwise expended, only for the account of the

13  resident.

14         (b)  The licensee shall, within 30 days of receipt of

15  advance rent or a security deposit, notify the resident or

16  residents in writing of the manner in which the licensee is

17  holding the advance rent or security deposit and state the

18  name and address of the depository where the moneys are being

19  held. The licensee shall notify residents of the facility's

20  policy on advance deposits.

21         (3)(a)  The contract shall include a refund policy to

22  be implemented at the time of a resident's transfer,

23  discharge, or death.  The refund policy shall provide that the

24  resident or responsible party is entitled to a prorated refund

25  based on the daily rate for any unused portion of payment

26  beyond the termination date after all charges, including the

27  cost of damages to the residential unit resulting from

28  circumstances other than normal use, have been paid to the

29  licensee.  For the purpose of this paragraph, the termination

30  date shall be the date the unit is vacated by the resident and

31  cleared of all personal belongings.  If the amount of

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  1  belongings does not preclude renting the unit, the facility

  2  may clear the unit and charge the resident or his or her

  3  estate for moving and storing the items at a rate equal to the

  4  actual cost to the facility, not to exceed 20 percent of the

  5  regular rate for the unit, provided that 14 days' advance

  6  written notification is given.  If the resident's possessions

  7  are not claimed within 45 days after notification, the

  8  facility may dispose of them.  The contract shall also specify

  9  any other conditions under which claims will be made against

10  the refund due the resident.  Except in the case of death or a

11  discharge due to medical reasons, the refunds shall be

12  computed in accordance with the notice of relocation

13  requirements specified in the contract.  However, a resident

14  may not be required to provide the licensee with more than 30

15  days' notice of termination.  If after a contract is

16  terminated, the facility intends to make a claim against a

17  refund due the resident, the facility shall notify the

18  resident or responsible party in writing of the claim and

19  shall provide said party with a reasonable time period of no

20  less than 14 calendar days to respond.  The facility shall

21  provide a refund to the resident or responsible party within

22  45 days after the transfer, discharge, or death of the

23  resident. The agency shall impose a fine upon a facility that

24  fails to comply with the refund provisions of the paragraph,

25  which fine shall be equal to three times the amount due to the

26  resident. One-half of the fine shall be remitted to the

27  resident or his or her estate, and the other half to the

28  Health Care Trust Fund to be used for the purpose specified in

29  s. 400.418.

30         (b)  If a licensee agrees to reserve a bed for a

31  resident who is admitted to a medical facility, including, but

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  1  not limited to, a nursing home, health care facility, or

  2  psychiatric facility, the resident or his or her responsible

  3  party shall notify the licensee of any change in status that

  4  would prevent the resident from returning to the facility.

  5  Until such notice is received, the agreed upon daily rate may

  6  be charged by the licensee.

  7         (c)  The purpose of any advance payment and a refund

  8  policy for such payment, including any advance payment for

  9  housing, meals, lodging, or personal services, shall be

10  covered in the contract.

11         (5)  Neither the No contract nor, or any provision

12  thereof relieves, shall be construed to relieve any licensee

13  of any requirement or obligation imposed upon it by this part

14  or rules adopted under this part act or by standards or rules

15  in force pursuant thereto.

16         (8)  The department may by rule clarify terms,

17  establish procedures, clarify refund policies and contract

18  provisions, and specify documentation as necessary to

19  administer this section.

20         Section 3.  Subsections (2), (3), and (7) of section

21  400.427, Florida Statutes, are amended, and subsection (8) is

22  added to said section, to read:

23         400.427  Property and personal affairs of residents.--

24         (2)  A facility, or an owner, administrator, employee,

25  or representative thereof, may not act as the guardian,

26  trustee, or conservator for any resident of the assisted

27  living facility or any of such resident's property.  An owner,

28  administrator, or staff member, or representative thereof, may

29  not act as a competent resident's payee for social security,

30  veteran's, or railroad benefits without the consent of the

31  resident.  Any facility whose owner, administrator, or staff,

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  1  or representative thereof, serves as representative payee for

  2  any resident of the facility shall file a surety bond with the

  3  agency in an amount equal to twice the average monthly

  4  aggregate income or personal funds due to residents, or

  5  expendable for their account, which are received by a

  6  facility.  Any facility whose owner, administrator, or staff,

  7  or a representative thereof, is granted power of attorney for

  8  any resident of the facility shall file a surety bond with the

  9  agency for each resident for whom such power of attorney is

10  granted.  The surety bond shall be in an amount equal to twice

11  the average monthly income of the resident, plus the value of

12  any resident's other property of the resident, which income

13  and property are under the control of the attorney in fact.

14  The bond shall be executed by the facility as principal and a

15  licensed surety company authorized and licensed to do business

16  in the state as surety.  The bond shall be conditioned upon

17  the faithful compliance of the facility with this section and

18  shall run to the agency for the benefit of any resident who

19  suffers a financial loss as a result of the misuse or

20  misappropriation by a facility of funds held pursuant to this

21  subsection.  Any surety company that which cancels or does not

22  renew the bond of any licensee shall notify the agency in

23  writing not less than 30 days in advance of such action,

24  giving the reason for the cancellation or nonrenewal. The

25  agency, in cooperation with insurance companies, associations,

26  and organizations representing facilities licensed under this

27  part, and the Department of Insurance shall develop procedures

28  to implement the bonding requirements of this subsection.  Any

29  facility owner, administrator, or staff, or representative

30  thereof, who is granted power of attorney for any resident of

31  the facility shall, on a monthly basis, be required to provide

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  1  the resident a written statement of any transaction made on

  2  behalf of the resident pursuant to this subsection, and a copy

  3  of such statement given to the resident shall be retained in

  4  the facility in each resident's file and available for agency

  5  inspection.

  6         (3)  A facility, upon mutual consent with the resident,

  7  shall provide for the safekeeping in the facility of personal

  8  effects not in excess of $500 and funds of the resident not in

  9  excess of $200 cash, and.  A facility shall keep complete and

10  accurate records of all such funds and personal effects

11  received for safekeeping.  If When a resident is absent from a

12  facility for 24 hours or more, the facility may provide for

13  the safekeeping of the resident's personal effects in excess

14  of $500.

15         (7)  In the event of the death of a resident, a

16  licensee shall return all refunds, funds, and property held in

17  trust to the resident's personal representative, if one has

18  been appointed at the time the facility disburses such funds,

19  and, if not, to the resident's spouse or adult next of kin

20  named in a beneficiary designation form provided by the

21  facility to the resident. If In the event the resident has no

22  spouse or adult next of kin or such person cannot be located,

23  funds due the resident shall be placed in an interest-bearing

24  account, and all property held in trust by the facility shall

25  be safeguarded until such time as the funds and property are

26  disbursed pursuant to the Florida Probate Code.  Such funds

27  shall be kept separate from the funds and property of the

28  facility and other residents of the facility. If In the event

29  the funds of the deceased resident are not disbursed pursuant

30  to the provisions of the Florida Probate Code within 2 years

31  after of the resident's death, the funds shall be deposited in

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  1  the Health Care Trust Fund administered by the agency as

  2  provided in s. 400.418.

  3         (8)  The department may by rule clarify terms and

  4  specify procedures and documentation necessary to administer

  5  the provisions of this section relating to the proper

  6  management of residents' funds and personal property and the

  7  execution of surety bonds.

  8         Section 4.  Section 400.4275, Florida Statutes, is

  9  created to read:

10         400.4275  Business practice; personnel records;

11  liability insurance.--The assisted living facility shall be

12  administered on a sound financial basis that is consistent

13  with good business practices.

14         (1)  The administrator or owner of a facility shall

15  maintain accurate business records that identify, summarize,

16  and classify funds received and expenses disbursed and shall

17  use written accounting procedures and a recognized accounting

18  system.

19         (2)  Evidence of filed bankruptcy of any owner;

20  issuance of checks returned for insufficient funds; delinquent

21  accounts; nonpayment of local, state, or federal taxes or

22  fees; unpaid utility expenses; tax or judgment liens against a

23  facility or the property of an owner of a facility; failure to

24  meet employee payroll; confirmed complaints to the agency or

25  ombudsman council regarding withholding of refunds or funds

26  due residents; failure to maintain liability insurance due to

27  nonpayment of premiums; nonpayment of rent or a mortgage;

28  nonpayment for essential services; or an adverse court action

29  that concerns the financial viability of the facility or any

30  other facility that is licensed under part II or under this

31  part, constitutes prima facie evidence that the owner lacks

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  1  satisfactory proof of financial ability to operate the

  2  facility in accordance with the requirements of this part.

  3         (3)  The administrator or owner of a facility shall

  4  maintain personnel records for each staff member which

  5  contain, at a minimum, documentation of background screening,

  6  if applicable, documentation of compliance with all training

  7  requirements of this part or applicable rule, and a copy of

  8  all licenses or certification held by each staff who performs

  9  services for which licensure or certification is required

10  under this part or rule.

11         (4)  The administrator or owner of a facility shall

12  maintain liability insurance coverage that is in force at all

13  times.

14         (5)  The department may by rule clarify terms,

15  establish requirements for financial records, accounting

16  procedures, personnel procedures, insurance coverage, and

17  reporting procedures, and specify documentation as necessary

18  to implement the requirements of this section.

19         Section 5.  Subsections (1) and (3) of section 400.441,

20  Florida Statutes, are amended to read:

21         400.441  Rules establishing standards.--

22         (1)  It is the intent of the Legislature that rules

23  published and enforced pursuant to this section shall include

24  criteria by which a reasonable and consistent quality of

25  resident care and quality of life may be ensured and the

26  results of such resident care may be demonstrated.  Such rules

27  shall also ensure a safe and sanitary environment that is

28  residential and noninstitutional in design or nature.  It is

29  further intended that reasonable efforts be made to

30  accommodate the needs and preferences of residents to enhance

31  the quality of life in a facility. In order to provide safe

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  1  and sanitary facilities and the highest quality of resident

  2  care accommodating the needs and preferences of residents, the

  3  department, in consultation with the agency, the Department of

  4  Children and Family Services, and the Department of Health and

  5  Rehabilitative Services, shall adopt rules, policies, and

  6  procedures to administer this part, which must include

  7  reasonable and fair minimum standards in relation to:

  8         (a)  The requirements for and maintenance of

  9  facilities, not in conflict with the provisions of chapter

10  553, relating to plumbing, heating, lighting, ventilation,

11  living space, and other housing conditions, which will ensure

12  the health, safety, and comfort of residents and protection

13  from fire hazard, including adequate provisions for fire alarm

14  and other fire protection suitable to the size of the

15  structure. Uniform firesafety standards shall be established

16  and enforced by the State Fire Marshal in cooperation with the

17  agency, the department, and the Department of Health and

18  Rehabilitative Services.

19         1.  Evacuation capability determination.--

20         a.  The provisions of the National Fire Protection

21  Association, NFPA 101A, Chapter 5, 1995 edition, shall be used

22  for determining the ability of the residents, with or without

23  staff assistance, to relocate from or within a licensed

24  facility to a point of safety as provided in the fire codes

25  adopted herein.  An evacuation capability evaluation for

26  initial licensure shall be conducted within 6 months after the

27  date of licensure.  For existing licensed facilities that are

28  not equipped with an automatic fire sprinkler system, the

29  administrator shall evaluate the evacuation capability of

30  residents at least annually. The evacuation capability

31  evaluation for each facility not equipped with an automatic

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  1  fire sprinkler system shall be validated, without liability,

  2  by the State Fire Marshal, by the local fire marshal, or by

  3  the local authority having jurisdiction over firesafety,

  4  before the license renewal date.  If the State Fire Marshal,

  5  local fire marshal, or local authority having jurisdiction

  6  over firesafety has reason to believe that the evacuation

  7  capability of a facility as reported by the administrator may

  8  have changed, it may, with assistance from the facility

  9  administrator, reevaluate the evacuation capability through

10  timed exiting drills. Translation of timed fire exiting drills

11  to evacuation capability may be determined:

12         (I)  Three minutes or less: prompt.

13         (II)  More than 3 minutes, but not more than 13

14  minutes: slow.

15         (III)  More than 13 minutes: impractical.

16         b.  The Office of the State Fire Marshal shall provide

17  or cause the provision of training and education on the proper

18  application of Chapter 5, NFPA 101A, 1995 edition, to its

19  employees, to staff of the Agency for Health Care

20  Administration who are responsible for regulating facilities

21  under this part, and to local governmental inspectors. The

22  Office of the State Fire Marshal shall provide or cause the

23  provision of this training within its existing budget, but may

24  charge a fee for this training to offset its costs. The

25  initial training must be delivered within 6 months after July

26  1, 1995, and as needed thereafter.

27         c.  The Office of the State Fire Marshal, in

28  cooperation with provider associations, shall provide or cause

29  the provision of a training program designed to inform

30  facility operators on how to properly review bid documents

31  relating to the installation of automatic fire sprinklers.

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  1  The Office of the State Fire Marshal shall provide or cause

  2  the provision of this training within its existing budget, but

  3  may charge a fee for this training to offset its costs.  The

  4  initial training must be delivered within 6 months after July

  5  1, 1995, and as needed thereafter.

  6         d.  The administrator of a licensed facility shall sign

  7  an affidavit verifying the number of residents occupying the

  8  facility at the time of the evacuation capability evaluation.

  9         2.  Firesafety requirements.--

10         a.  Except for the special applications provided

11  herein, effective January 1, 1996, the provisions of the

12  National Fire Protection Association, Life Safety Code, NFPA

13  101, 1994 edition, Chapter 22 for new facilities and Chapter

14  23 for existing facilities shall be the uniform fire code

15  applied by the State Fire Marshal for assisted living

16  facilities, pursuant to s. 633.022.

17         b.  Any new facility, regardless of size, that applies

18  for a license on or after January 1, 1996, must be equipped

19  with an automatic fire sprinkler system.  The exceptions as

20  provided in section 22-2.3.5.1, NFPA 101, 1994 edition, as

21  adopted herein, apply to any new facility housing eight or

22  fewer residents.  On July 1, 1995, local governmental entities

23  responsible for the issuance of permits for construction shall

24  inform, without liability, any facility whose permit for

25  construction is obtained prior to January 1, 1996, of this

26  automatic fire sprinkler requirement.  As used in this part,

27  the term "a new facility" does not mean an existing facility

28  that has undergone change of ownership.

29         c.  Notwithstanding any provision of s. 633.022 or of

30  the National Fire Protection Association, NFPA 101A, Chapter

31  5, 1995 edition, to the contrary, any existing facility

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  1  housing eight or fewer residents is not required to install an

  2  automatic fire sprinkler system, nor to comply with any other

  3  requirement in Chapter 23 of NFPA 101, 1994 edition, that

  4  exceeds the firesafety requirements of NFPA 101, 1988 edition,

  5  that applies to this size facility, unless the facility has

  6  been classified as impractical to evacuate. Any existing

  7  facility housing eight or fewer residents that is classified

  8  as impractical to evacuate must install an automatic fire

  9  sprinkler system within the timeframes granted in this

10  section.

11         d.  Any existing facility that is required to install

12  an automatic fire sprinkler system under this paragraph need

13  not meet other firesafety requirements of Chapter 23, NFPA

14  101, 1994 edition, which exceed the provisions of NFPA 101,

15  1988 edition.  The mandate contained in this paragraph which

16  requires certain facilities to install an automatic fire

17  sprinkler system supersedes any other requirement.

18         e.  This paragraph does not supersede the exceptions

19  granted in NFPA 101, 1988 edition or 1994 edition.

20         f.  This paragraph does not exempt facilities from

21  other firesafety provisions adopted under s. 633.022 and local

22  building code requirements in effect before July 1, 1995.

23         g.  A local government may charge fees only in an

24  amount not to exceed the actual expenses incurred by local

25  government relating to the installation and maintenance of an

26  automatic fire sprinkler system in an existing and properly

27  licensed assisted living facility structure as of January 1,

28  1996.

29         h.  If a licensed facility undergoes major

30  reconstruction or addition to an existing building on or after

31  January 1, 1996, the entire building must be equipped with an

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  1  automatic fire sprinkler system.  Major reconstruction of a

  2  building means repair or restoration that costs in excess of

  3  50 percent of the value of the building as reported on the tax

  4  rolls, excluding land, before reconstruction.  Multiple

  5  reconstruction projects within a 5-year period the total costs

  6  of which exceed 50 percent of the initial value of the

  7  building at the time the first reconstruction project was

  8  permitted are to be considered as major reconstruction.

  9  Application for a permit for an automatic fire sprinkler

10  system is required upon application for a permit for a

11  reconstruction project that creates costs that go over the

12  50-percent threshold.

13         i.  Any facility licensed before January 1, 1996, that

14  is required to install an automatic fire sprinkler system

15  shall ensure that the installation is completed within the

16  following timeframes based upon evacuation capability of the

17  facility as determined under subparagraph 1.:

18         (I)  Impractical evacuation capability, 24 months.

19         (II)  Slow evacuation capability, 48 months.

20         (III)  Prompt evacuation capability, 60 months.

21

22  The beginning date from which the deadline for the automatic

23  fire sprinkler installation requirement must be calculated is

24  upon receipt of written notice from the local fire official

25  that an automatic fire sprinkler system must be installed. The

26  local fire official shall send a copy of the document

27  indicating the requirement of a fire sprinkler system to the

28  Agency for Health Care Administration.

29         j.  It is recognized that the installation of an

30  automatic fire sprinkler system may create financial hardship

31  for some facilities.  The appropriate local fire official

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  1  shall, without liability, grant two 1-year extensions to the

  2  timeframes for installation established herein, if an

  3  automatic fire sprinkler installation cost estimate and proof

  4  of denial from two financial institutions for a construction

  5  loan to install the automatic fire sprinkler system are

  6  submitted.  However, for any facility with a class I or class

  7  II, or a history of uncorrected class III, firesafety

  8  deficiencies, an extension must not be granted.  The local

  9  fire official shall send a copy of the document granting the

10  time extension to the Agency for Health Care Administration.

11         k.  A facility owner whose facility is required to be

12  equipped with an automatic fire sprinkler system under Chapter

13  23, NFPA 101, 1994 edition, as adopted herein, must disclose

14  to any potential buyer of the facility that an installation of

15  an automatic fire sprinkler requirement exists.  The sale of

16  the facility does not alter the timeframe for the installation

17  of the automatic fire sprinkler system.

18         l.  Existing facilities required to install an

19  automatic fire sprinkler system as a result of

20  construction-type restrictions in Chapter 23, NFPA 101, 1994

21  edition, as adopted herein, or evacuation capability

22  requirements shall be notified by the local fire official in

23  writing of the automatic fire sprinkler requirement, as well

24  as the appropriate date for final compliance as provided in

25  this subparagraph.  The local fire official shall send a copy

26  of the document to the Agency for Health Care Administration.

27         m.  Except in cases of life-threatening fire hazards,

28  if an existing facility experiences a change in the evacuation

29  capability, or if the local authority having jurisdiction

30  identifies a construction-type restriction, such that an

31  automatic fire sprinkler system is required, it shall be

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  1  afforded time for installation as provided in this

  2  subparagraph.

  3         n.  There is created a study-work group consisting of

  4  representatives of the Office of the State Fire Marshal,

  5  Florida Fire Chiefs' Association, Florida Fire Marshals'

  6  Association, Florida Assisted Living Association, Florida

  7  Association of Homes for the Aging, Florida Health Care

  8  Association, Florida League of Cities, Florida Association of

  9  Counties, Florida State Firemen's Association, Building

10  Officials' Association of Florida, the Aging and Adult

11  Services Program Office of the Department of Health and

12  Rehabilitative Services, and the Agency for Health Care

13  Administration.  Each entity involved shall select its

14  representative to the study-work group.  The Florida Fire

15  Chiefs' Association shall coordinate study-work group

16  activities. The study-work group shall examine the National

17  Fire Protection Association, NFPA 101, Chapter 23, 1994

18  edition, and shall report to the Legislature by December 31,

19  1995, its recommendations for firesafety standards that will

20  provide a reasonable level of firesafety for the protection of

21  assisted living facility residents without imposing

22  unnecessary economic impact on facilities regulated under this

23  part. Expenses incurred while participating in this study-work

24  group activity shall be borne by the participants.

25

26  Facilities that are fully sprinkled and in compliance with

27  other firesafety standards are not required to conduct more

28  than one of the required fire drills between the hours of 11

29  p.m. and 7 a.m., per year.  In lieu of the remaining drills,

30  staff responsible for residents during such hours may be

31  required to participate in a mock drill that includes a review

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  1  of evacuation procedures. Such standards must be included or

  2  referenced in the rules adopted by the department after

  3  consultation with the State Fire Marshal. Pursuant to s.

  4  633.022(1)(b), the State Fire Marshal is the final

  5  administrative authority for firesafety standards established

  6  and enforced pursuant to this section. All licensed facilities

  7  must have an annual fire inspection conducted by the local

  8  fire marshal or authority having jurisdiction.

  9         (b)  The preparation and annual update of a

10  comprehensive emergency management plan.  Such standards must

11  be included in the rules adopted by the department after

12  consultation with the Department of Community Affairs.  At a

13  minimum, the rules must provide for plan components that

14  address emergency evacuation transportation; adequate

15  sheltering arrangements; postdisaster activities, including

16  provision of emergency power, food, and water; postdisaster

17  transportation; supplies; staffing; emergency equipment;

18  individual identification of residents and transfer of

19  records; communication with families; and responses to family

20  inquiries.  The comprehensive emergency management plan is

21  subject to review and approval by the local emergency

22  management agency. During its review, the local emergency

23  management agency shall ensure that the following agencies, at

24  a minimum, are given the opportunity to review the plan:  the

25  Department of Elderly Affairs, the Department of Health and

26  Rehabilitative Services, the Agency for Health Care

27  Administration, and the Department of Community Affairs.

28  Also, appropriate volunteer organizations must be given the

29  opportunity to review the plan.  The local emergency

30  management agency shall complete its review within 60 days and

31

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  1  either approve the plan or advise the facility of necessary

  2  revisions.

  3         (c)  The number, training, and qualifications of all

  4  personnel having responsibility for the care of residents.

  5  The rules must require adequate staff to provide for the

  6  safety of all residents.  Facilities licensed for 17 or more

  7  residents are required to maintain an alert staff for 24 hours

  8  per day.

  9         (d)  All sanitary conditions within the facility and

10  its surroundings, including water supply, sewage disposal,

11  food handling, and general hygiene, and maintenance thereof,

12  which will ensure the health and comfort of residents.  The

13  rules must clearly delineate the responsibilities of the

14  agency's licensure and survey staff, and the responsibilities

15  of the county health departments and the local authority

16  having jurisdiction over fire safety and ensure that

17  inspections are not duplicative.  The agency may collect fees

18  for food service inspections conducted by the county health

19  departments and transfer such fees to the Department of Health

20  and Rehabilitative Services.

21         (e)  License application and license renewal, transfer

22  of ownership, proper management of resident funds and personal

23  property, surety bonds, resident contracts, refund policies,

24  financial ability to operate, and facility and staff records.

25         (f)(e)  Inspections, complaint investigations,

26  moratoriums, the classification of deficiencies, and The

27  levying and enforcement of penalties and use of income from

28  fees and fines.

29         (g)(f)  The enforcement of the resident bill of rights

30  specified in s. 400.428.

31

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  1         (h)(g)  The care and maintenance of residents, which

  2  must include, but is not limited to:

  3         1.  The supervision of residents;

  4         2.1.  The provision of personal services;

  5         3.2.  The provision of, or arrangement for, social and

  6  leisure activities;

  7         4.3.  The arrangement for appointments and

  8  transportation to appropriate medical, dental, nursing, or

  9  mental health services, as needed by residents;

10         4.  The provision of limited nursing services;

11         5.  The management of medication; The provision of

12  extended congregate care services; and

13         6.  The nutritional needs of residents; and The

14  provision of limited mental health services.

15         7.  Resident records.

16         (i)  Facilities holding a limited nursing, extended

17  congregate care, or limited mental health license.

18         (j)(h)  The establishment of specific criteria to

19  define appropriateness of resident admission and continued

20  residency in a facility holding a standard, limited nursing,

21  extended congregate care, and limited mental health license.

22         (k)(i)  The definition and use of physical or chemical

23  restraints.  The use of physical restraints is limited to

24  half-bed rails as prescribed and documented by the resident's

25  physician with the consent of the resident or, if applicable,

26  the resident's representative or designee or the resident's

27  surrogate, guardian, or attorney in fact.  The use of chemical

28  restraints is limited to prescribed dosages of medications

29  authorized by the resident's physician and must be consistent

30  with the resident's diagnosis. Residents who are receiving

31

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  1  medications that can serve as chemical restraints must be

  2  evaluated by their physician at least annually to assess:

  3         1.  The continued need for the medication.

  4         2.  The level of the medication in the resident's

  5  blood.

  6         3.  The need for adjustments in the prescription.

  7         (3)  The department shall submit a copy of proposed

  8  rules to the Speaker of the House of Representatives, the

  9  President of the Senate, and appropriate committees of

10  substance for review and comment prior to the promulgation

11  thereof.

12         (a)  Rules promulgated by the department shall

13  encourage the development of homelike facilities which promote

14  the dignity, individuality, personal strengths, and

15  decisionmaking ability of residents.

16         (b)  The agency, in consultation with the department,

17  may waive rules promulgated pursuant to this part in order to

18  demonstrate and evaluate innovative or cost-effective

19  congregate care alternatives which enable individuals to age

20  in place.  Such waivers may be granted only in instances where

21  there is reasonable assurance that the health, safety, or

22  welfare of residents will not be endangered.  To apply for a

23  waiver, the licensee shall submit to the agency a written

24  description of the concept to be demonstrated, including

25  goals, objectives, and anticipated benefits; the number and

26  types of residents who will be affected, if applicable; a

27  brief description of how the demonstration will be evaluated;

28  and any other information deemed appropriate by the agency.

29  Any facility granted a waiver shall submit a report of

30  findings to the agency and the department within 12 months.

31  At such time, the agency may renew or revoke the waiver or

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  1  pursue any regulatory or statutory changes necessary to allow

  2  other facilities to adopt the same practices. The department

  3  may by rule clarify terms and establish waiver application

  4  procedures, criteria for reviewing waiver proposals, and

  5  procedures for reporting findings, as necessary to implement

  6  this subsection.

  7         Section 6.  Subsection (3) is added to section 400.442,

  8  Florida Statutes, to read:

  9         400.442  Pharmacy and dietary services.--

10         (3)  The department may by rule establish procedures

11  and specify documentation as necessary to implement this

12  section.

13         Section 7.  Subsection (3) is added to section 400.444,

14  Florida Statutes, to read:

15         400.444  Construction and renovation; requirements.--

16         (3)  The department may adopt rules to establish

17  procedures and specify the documentation necessary to

18  implement this section.

19         Section 8.  Subsections (3), (4), and (13) of section

20  400.619, Florida Statutes, are amended to read:

21         400.619  Licensure requirements.--

22         (3)  Application for a license or annual license

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

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

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

26  cost of training and education programs by the Department of

27  Elderly Affairs for providers.

28         (4)  Upon receipt of a completed license application or

29  license renewal, and the fee, the agency shall conduct a level

30  1 background screening as provided under chapter 435 on must

31  check with the abuse registry and the Department of Law

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  1  Enforcement concerning the adult family-care home provider

  2  applicant, the designated relief person, all adult household

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

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

  5         (13)  The department may shall adopt rules to establish

  6  procedures, identify forms, specify documentation, and clarify

  7  terms, as necessary, to administer implement this section.

  8         Section 9.  Section 400.6196, Florida Statutes, is

  9  amended to read:

10         400.6196  Violations; penalties.--

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

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

13  provider according to the following classification person for:

14         (a)  Class I violations are those conditions or

15  practices related to the operation and maintenance of an adult

16  family-care home or to the 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 that constitutes a class I violation

21  must 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 deficiency is subject to an

24  administrative fine in an amount not less that $500 and not

25  exceeding $1,000 for each violation. A fine may be levied

26  notwithstanding the correction of the deficiency.

27         (b)  Class II violations are those conditions or

28  practices related to the operation and maintenance of an adult

29  family-care home or to the care of residents which the agency

30  determines directly threaten the physical or emotional health,

31  safety, or security of the residents, other than class I

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  1  violations. A class II violation is subject to an

  2  administrative fine in an amount not less that $250 and not

  3  exceeding $500 for each violation. A citation for a class II

  4  violation must specify the time within which the violation is

  5  required to be corrected. If a class II violation is corrected

  6  within the time specified, no civil penalty shall be imposed,

  7  unless it is a repeated offence.

  8         (c)  Class III violations are those conditions or

  9  practices related to the operation and maintenance of an adult

10  family-care home or to the care of residents which the agency

11  determines indirectly or potentially threaten the physical or

12  emotional health, safety, or security of residents, other than

13  class I or class II violations. A class III violation is

14  subject to an administrative fine in an amount not less than

15  $100 and not exceeding $250 for each violation. A citation for

16  a class III violation shall specify the time within which the

17  violation is required to be corrected. If a class III

18  violation is corrected within the time specified, no civil

19  penalty shall be imposed, unless it is a repeated offense.

20         (d)  Class IV violations are those conditions or

21  occurrences related to the operation and maintenance of an

22  adult family-care home, or related to the required reports,

23  forms or documents which do not have the potential of

24  negatively affecting the residents. A provider that does not

25  correct a class IV violation within the time limit specified

26  by the agency is subject to an administrative fine in an

27  amount not less that $50 and not exceeding $100 for each

28  violation. Any class IV violation that is corrected during the

29  time the agency survey is conducted will be identified as an

30  agency finding and not as a violation.

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  1         (2)  The agency may impose an administrative fine for

  2  violations which do not qualify as class I, class II, class

  3  III, or class IV violations. The amount of the fine shall not

  4  exceed $250 for each violation or $2,000 in the aggregate.

  5  Unclassified violations include:

  6         (a)  Violating any term or condition of a license.; or

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

  8  400.616-400.629.

  9         (c)  Failure to follow the criteria and procedures

10  provided under part I of chapter 394 relating to the

11  transportation, voluntary admission, and involuntary

12  examination of adult family-care home residents.

13         (d)  Exceeding licensed capacity.

14         (e)  Providing services beyond the scope of the

15  license.

16         (f)  Violating a moratorium.

17         (3)(2)  Each day during which a violation occurs

18  constitutes a separate offense violation.

19         (4)(3)  In determining whether a penalty is to be

20  imposed, and in fixing the amount of any penalty to be

21  imposed, the agency must consider:

22         (a)  The gravity of the violation.

23         (b)  Actions taken by the provider to correct a

24  violation.

25         (c)  Any previous violation by the provider.

26         (d)  The financial benefit to the provider of

27  committing or continuing the violation.

28         (5)(4)  As an alternative to or in conjunction with an

29  administrative action against a provider, the agency may

30  request a plan of corrective action that demonstrates a good

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  1  faith effort to remedy each violation by a specific date,

  2  subject to the approval of the agency department.

  3         (6)(5)  The department shall set forth, by rule, notice

  4  requirements and procedures for correction of deficiencies

  5  classifications of violations and civil penalties to be

  6  levied.

  7         (7)(6)  Civil penalties paid by a provider must be

  8  deposited into the Department of Elderly Affairs

  9  Administrative Trust Fund and used to offset the expenses of

10  departmental training and education for adult family-care home

11  providers.

12         (8)(7)  The agency may impose an immediate moratorium

13  on admissions to any adult family-care home if the agency

14  finds that a condition in the home presents a threat to the

15  health, safety, or welfare of its residents. The department

16  may by rule establish facility conditions that constitute

17  grounds for imposing a moratorium and establish procedures for

18  imposing and lifting a moratorium.

19         Section 10.  Section 400.621, Florida Statutes, is

20  amended to read:

21         400.621  Rules and standards relating to adult

22  family-care homes.--

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

24  Department of Health, the Department of Children and Family

25  Services, and Rehabilitative Services and the agency shall, by

26  rule, establish minimum standards to ensure and licensure

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

28  minimum:

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

30  each resident in the adult family-care home. The rules must

31  address:

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  1         (a)  Requirements for the physical site of the facility

  2  and facility maintenance.

  3         (b)  Services that must be provided to all residents of

  4  an adult family-care home and standards for such services,

  5  which must include, but need not be limited to:

  6         1.  Room and board.

  7         2.  Assistance necessary to perform the activities of

  8  daily living.

  9         3.  Assistance necessary to administer medication.

10         4.  Supervision of residents.

11         5.  Health monitoring.

12         6.  Social and leisure activities.

13         (c)(b)  Standards and Provide procedures for license

14  application and annual license renewal, advertising prevention

15  of abuse, proper management of each resident's funds and

16  personal property and personal affairs, financial ability to

17  operate, medication management, inspections, complaint

18  investigations, and facility, staff and resident and records

19  and reports.

20         (d)  Qualifications, training, standards, and

21  responsibilities for providers and staff.

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

23  component of a long-term care system.

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

25         (e)  Mandate compliance with chapter 419, relating to

26  community residential homes.

27         (f)  Criteria and procedures for determining the

28  appropriateness of a resident's placement and continued

29  residency in Assure that an adult family-care home is the

30  appropriate living arrangement for each resident.  A resident

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

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  1  in an adult family-care home.  A person who would not be an

  2  appropriate resident in any assisted living facility under s.

  3  400.426 would not be an appropriate resident in an adult

  4  family-care home.

  5         (g)  Procedures for providing notice and assuring

  6  Assure the least possible disruption of residents' lives when

  7  residents are relocated, an adult family-care home is closed,

  8  or the ownership of an adult family-care home is transferred.

  9         (h)  Provide Procedures to protect the residents'

10  rights as provided in s. 400.628.

11         (i)  Procedures to promote the growth of adult

12  family-care homes as a component of a long-term-care system.

13         (j)  Procedures to promote the goal of aging in place

14  for residents of adult family-care homes.

15         (2)  The department shall by rule provide minimum

16  standards and procedures for emergencies. Minimum firesafety

17  standards shall be established and enforced by the State Fire

18  Marshal in cooperation with the department and the agency.

19  Such standards must be included in the rules adopted by the

20  department after consultation with the State Fire Marshal and

21  the agency.

22         (3)  The department shall by rule establish standards

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

24         (3)(4)  The provider of any adult family-care home that

25  is in operation at the time any rules are adopted or amended

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

27  time, not exceeding 6 months, within which to comply with the

28  those new or revised rules and standards.

29         Section 11.  Section 400.6211, Florida Statutes, is

30  amended to read:

31         400.6211  Training and education programs.--

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  1         (1)  The department of Elderly Affairs must provide

  2  training and education programs for all adult family-care home

  3  providers.

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

  5  are not limited to, information relating to:

  6         (a)  State law and rules governing adult family-care

  7  homes, with emphasis on appropriateness of placement of

  8  residents in an adult family-care home.

  9         (b)  Identifying and reporting abuse, neglect, and

10  exploitation.

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

12  persons and disabled adults.

13         (d)  Monitoring the health of residents, including

14  guidelines for prevention and care of pressure ulcers.

15         (3)  Providers must complete the training and education

16  program within a reasonable time determined by the department

17  by rule. Failure to complete the training and education

18  program within the time set by the department is a violation

19  of ss. 400.616-400.629 and subjects the provider to revocation

20  or denial of the license under this part.

21         (4)  If the Department of Children and Family Services

22  Health and Rehabilitative Services, the agency, or the

23  department determines that there are problems in an adult

24  family-care home which could be reduced through specific

25  training or education beyond that required under this section,

26  the department may require the provider or staff to complete

27  such training or education.

28         (5)  The department shall specify by rule training and

29  education programs, training requirements and the assignment

30  of training responsibilities for staff, training procedures,

31  and training fees as necessary to administer this section.

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  1         Section 12.  Present subsections (3) and (4) of section

  2  409.212, Florida Statutes, are redesignated as subsections (4)

  3  and (5), respectively, and amended, and a new subsection (3)

  4  is added to said section, to read:

  5         409.212  Optional supplementation.--

  6         (3)  Assisted living facilities, adult family-care

  7  homes, family placement, or any other specialized living

  8  arrangement accepting residents who receive optional

  9  supplementation payments must comply with the requirements of

10  42 U.S.C. s. 1382e(e).

11         (4)(3)  In addition to the amount of optional

12  supplementation provided by the state, a person may receive

13  additional supplementation from third parties to contribute to

14  his or her cost of care.  Additional supplementation may be

15  provided under the following conditions:

16         (a)  Payments shall be made to the assisted living

17  facility, or to the operator of an adult family-care home,

18  family placement, or other special living arrangement, on

19  behalf of the person and not directly to the optional state

20  supplementation recipient.

21         (b)  Contributions made by third parties shall be

22  entirely voluntary and shall not be a condition of providing

23  proper care to the client.

24         (c)  The additional supplementation shall not exceed

25  two times the provider rate recognized under the optional

26  state supplementation program.

27         (d)  Rent vouchers issued pursuant to a federal, state,

28  or local housing program may be issued directly to a recipient

29  of optional state supplementation.

30         (5)(4)  When contributions are made in accordance with

31  the provisions of subsection (4)(3), the department shall not

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  1  count such supplements as income to the client for purposes of

  2  determining eligibility for, or computing the amount of,

  3  optional state supplementation benefits, nor shall the

  4  department increase an optional state supplementation payment

  5  to offset the reduction in Supplemental Security Income

  6  benefits that will occur because of the third-party

  7  contribution.

  8         Section 13.  This act shall take effect July 1 of the

  9  year in which enacted.

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