CODING: Words stricken are deletions; words underlined are additions.House Bill 0759
Florida House of Representatives - 1997 HB 759
By Representative Geller
1 A bill to be entitled
2 An act relating to home medical equipment
3 suppliers; creating part IX of chapter 400,
4 F.S.; providing for regulation of home medical
5 equipment suppliers by the Agency for Health
6 Care Administration; providing legislative
7 intent; providing definitions; providing for
8 licensure and exemptions; providing unlawful
9 acts; providing penalties; providing for
10 license applications; providing for a fee;
11 providing for provisional licenses and
12 temporary permits; providing for administrative
13 penalties; providing for injunctions, emergency
14 orders, and moratoriums; providing for
15 licensure inspections; providing minimum
16 standards; providing for agency rules;
17 providing for clinical records; providing for
18 notice of toll-free telephone number for the
19 central abuse registry; providing for
20 background screening of home medical equipment
21 supplier personnel; providing screening
22 procedures; providing for agency injunctions;
23 prohibiting referrals to home medical equipment
24 suppliers; prohibiting rebates; providing
25 penalties; providing an effective date.
26
27 Be It Enacted by the Legislature of the State of Florida:
28
29 Section 1. Part IX of chapter 400, Florida Statutes,
30 consisting of sections 400.81, 400.815, 400.82, 400.821,
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1 400.822, 400.823, 400.824, 400.825, 400.83, 400.84, 400.843,
2 400.845, 400.85, 400.86, and 400.865, is created to read:
3 400.81 Legislative intent.--It is the intent of the
4 Legislature to provide for the licensure of every home medical
5 equipment supplier and to provide for the development,
6 establishment, and enforcement of basic standards that will
7 ensure quality services to persons receiving home medical
8 equipment.
9 400.815 Definitions.--As used in this chapter, the
10 term:
11 (1) "Accrediting organizations" means the Joint
12 Commission on Accreditation of Healthcare Organizations or
13 other national accreditation agencies whose standards are
14 comparable to those required by this licensure.
15 (2) "Affiliated person" means any person who directly
16 or indirectly manages, controls, or oversees the operation of
17 a corporation or other business entity that is a licensee,
18 regardless of whether such person is a partner, shareholder,
19 owner, officer, director, agent, or employee of the entity.
20 (3) "Agency" means the Agency for Health Care
21 Administration.
22 (4) "Applicant" means an individual applicant, or any
23 officer, director, agent, managing employee, general manager
24 or affiliated person, or any partner or shareholder having an
25 ownership interest equal to 5 percent or greater in the
26 corporation, partnership, or other business entity.
27 (5) "Consumer or patient" means any person who uses
28 home medical equipment in his or her home or place of
29 residence.
30 (6) "Department" means the Department of Children and
31 Family Services.
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1 (7) "General manager" means the individual who has the
2 general administrative charge of a licensed home medical
3 equipment supplier premises.
4 (8) "Home medical equipment" includes any product as
5 defined by the Federal Drug Administration's Drugs, Devices
6 and Cosmetics Act, any product reimbursed under the Medicare
7 Durable Medical Equipment benefits, or any product reimbursed
8 under the Florida Medicaid Durable Medical Equipment program.
9 Home medical equipment includes, but is not limited to, oxygen
10 products and equipment. Home medical equipment does not
11 include prosthetics or customized orthotics.
12 (9) "Home medical equipment services" means equipment
13 management and consumer instruction, including selection,
14 delivery, set-up, and maintenance of equipment, and other
15 related services for use of home medical equipment in the
16 consumer's regular or temporary place of residence.
17 (10) "Home medical equipment supplier" means any
18 person or entity that sells or rents or offers to sell or rent
19 to or for a consumer:
20 (a) Any home medical equipment and services; or
21 (b) Home medical equipment that requires any home
22 medical equipment services.
23 (11) "Home medical equipment supplier personnel" means
24 persons who are employed by or under contract with a home
25 medical equipment supplier.
26 (12) "Moratorium" means a mandated temporary cessation
27 or suspension of the sale, rental, or offering of equipment
28 after the imposition of the moratorium. Services related to
29 equipment sold prior to the moratorium must be continued
30 without interruption, unless deemed otherwise by the agency.
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1 (13) "Premises" means those buildings and equipment
2 that are located at the address of the licensed home medical
3 equipment supplier for the provision of home medical equipment
4 services and are in such reasonable proximity as to appear to
5 the public to be a single supplier location.
6 (14) "Residence" means the consumer's home or place of
7 residence and includes nursing homes, assisted living
8 facilities, transitional living facilities, adult family-care
9 homes, or other congregate residential facilities.
10 400.82 Home medical equipment suppliers to be
11 licensed; expiration of license; exemptions; unlawful acts;
12 penalties.--
13 (1) Any person or entity that holds itself out to the
14 public as providing home medical equipment and services or
15 accepts physician orders for home medical equipment and
16 services is subject to licensure under this part.
17 (2) Any person or entity that holds itself out to the
18 public as providing home medical equipment that typically
19 requires home medical equipment services is subject to
20 licensure under this part.
21 (3) Any home medical equipment supplier must be
22 licensed by the agency to operate in this state. A standard
23 license issued to a home medical equipment supplier, unless
24 sooner suspended or revoked, expires 2 years after its
25 effective date.
26 (4) A separate license is required of all home medical
27 equipment suppliers operating on separate premises, even if
28 the suppliers are operated under the same management.
29 (5) No more than one licensed home medical equipment
30 supplier may operate from the same premises.
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1 (6) The following are exempt from home medical
2 equipment supplier licensure, unless they have a separate
3 company, corporation, division, or other business entity that
4 is in the business of providing home medical equipment and
5 services for sale or rent to consumers at their residences
6 pursuant to the provisions of this part:
7 (a) Suppliers operated by the Federal Government.
8 (b) Nursing homes licensed under part II.
9 (c) Home health agencies licensed under part IV.
10 (d) Hospices licensed under part VI.
11 (e) Intermediate care facilities, homes for special
12 services, and transitional living facilities licensed under
13 part VIII.
14 (f) Hospitals and ambulatory surgical centers licensed
15 under chapter 395.
16 (g) Manufacturers and wholesale distributors when not
17 selling directly to consumers.
18 (h) Licensed health care practitioners who utilize
19 home medical equipment in the course of their practice, but do
20 not sell home medical equipment to their patients.
21 (i) Pharmacies licensed under chapter 465.
22 (7)(a) It is unlawful for any person to offer or
23 advertise home medical equipment and services to the public
24 unless he or she has a valid license under this part. It is
25 unlawful for any holder of a license issued under this part to
26 advertise or indicate to the public that it holds a home
27 medical equipment supplier license other than the one it has
28 been issued.
29 (b) A person who violates paragraph (a) is subject to
30 an injunctive proceeding under s. 400.85. A violation of
31 paragraph (a) is a deceptive and unfair trade practice and
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1 constitutes a violation of the Florida Deceptive and Unfair
2 Trade Practices Act.
3 (c) A person who violates paragraph (a) commits a
4 misdemeanor of the second degree, punishable as provided in s.
5 775.082 or s. 775.083. Any person who commits a second or
6 subsequent violation commits a misdemeanor of the first
7 degree, punishable as provided in s. 775.082 or s. 775.083.
8 Each day of continuing violation constitutes a separate
9 offense.
10 (d) A fine may be imposed against a licensee found to
11 be concurrently operating licensed and unlicensed supplier
12 premises. Any person who violates this section who previously
13 operated a licensed supplier premises or concurrently operates
14 a licensed supplier premises and an unlicensed supplier
15 premises, commits a felony of the third degree. When a
16 licensee has an interest in more than one supplier location
17 and fails to license any one of these locations, the agency
18 may revoke the license or impose a moratorium on any or all of
19 the licensed supplier locations until such time as the
20 delinquent supplier premises is licensed. If the supplier has
21 received government reimbursement for services provided by an
22 unlicensed supplier premises, the agency shall make a fraud
23 referral to the appropriate government reimbursement program.
24 (e) A supplier found to be operating without a license
25 may apply for licensure, and must cease operations until a
26 license is awarded by the agency.
27 400.821 Application for license; fee; provisional
28 license; temporary permit.--
29 (1) Application for an initial license or for renewal
30 of an existing license must be made under oath to the agency
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1 on forms furnished by it and must be accompanied by the
2 appropriate license fee as provided in subsection (10).
3 (2) The applicant must file with the application
4 satisfactory proof that the home medical equipment supplier is
5 in compliance with this part and applicable rules, including:
6 (a) A listing of equipment and services to be
7 provided, by category, indicating those offered either
8 directly by the applicant or through contractual arrangements
9 with existing suppliers. Categories include oxygen and
10 oxygen-related equipment, respiratory equipment,
11 rehabilitation environmental control equipment, diagnostic
12 equipment, rehabilitation seating, ambulation assistance
13 equipment, mobility equipment, beds and related products, and
14 orthotics.
15 (b) A listing of those with whom the applicant
16 contracts, both suppliers the applicant uses to provide
17 equipment or services to its consumers and suppliers for whom
18 the applicant provides services or equipment.
19 (c) The number and discipline of professional staff to
20 be employed, including full-time, part-time, or contract
21 status.
22 (3) An applicant for initial licensure, including
23 change of ownership, must demonstrate financial ability to
24 operate by submitting projected financial statements for the
25 first 2 years of operation. These statements shall include a
26 balance sheet and income and expense statement which provide
27 evidence of having sufficient assets, credit, and projected
28 revenues to cover liabilities and expenses. The applicant
29 shall have demonstrated financial ability to operate if the
30 assets, credit, and projected revenues meet or exceed
31 projected liabilities and expenses. All documents required
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1 under this subsection must be prepared in accordance with
2 generally accepted accounting principles and signed by a
3 certified public accountant.
4 (4) An applicant for renewal who has demonstrated
5 financial inability to operate must demonstrate financial
6 ability to operate by submitting audited financial statements
7 for the most recent 2 years of operation which provide
8 evidence of having sufficient assets, credit, and revenues to
9 cover liabilities and expenses. The applicant shall have
10 demonstrated financial ability to operate if the assets,
11 credit, and projected revenues meet or exceed liabilities and
12 expenses. All documents required under this subsection must be
13 prepared in accordance with generally accepted accounting
14 principles and signed by a certified public accountant.
15 (5) The applicant must file with the application
16 satisfactory proof of compliance with background screening
17 requirements, as follows:
18 (a) Upon receipt of a completed, signed, and dated
19 application, the agency shall require background screening
20 using the level 2 standards for screening set forth in chapter
21 435 for the applicant.
22 (b) Such background screening shall require each
23 applicant to submit to the Department of Law Enforcement the
24 information necessary, including a full set of fingerprints,
25 to enable a criminal background investigation to be conducted
26 for a state criminal and juvenile history records check. The
27 Department of Law Enforcement shall forward the fingerprints
28 to the Federal Bureau of Investigation for a national criminal
29 history records check. Upon completion of the state and
30 national criminal history records checks, the Department of
31 Law Enforcement shall report the findings to the agency. The
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1 actual cost of such state and national criminal history
2 records checks shall be borne by the applicant.
3 (c) Such background screening shall also require each
4 applicant to submit to the Department of Children and Family
5 Services a complete set of information necessary to conduct a
6 records check through the central abuse registry. The actual
7 costs of searching the department's central abuse registry
8 shall be borne by the applicant.
9 (d) A license shall not be granted to any applicant
10 who has been found guilty of, regardless of adjudication, or
11 who has entered a plea of nolo contendere or guilty to, any
12 offense prohibited under the level 2 standards of chapter 435.
13 A license shall not be granted to any applicant having a
14 confirmed report of abuse, neglect, or exploitation as defined
15 in s. 415.102 which has been uncontested or upheld under
16 chapter 415, or having a proposed confirmed report that
17 remains unserved and is maintained in the central abuse
18 registry and tracking system pursuant to s. 415.1065(2)(c).
19 (e) The agency shall also require every applicant, as
20 a condition of license application, to submit information
21 concerning any prior violation, fine, suspension, termination,
22 or other administrative action taken under the laws, rules, or
23 regulations of any regulatory body of this state or of any
24 other state or the Federal Government; and any prior violation
25 of the laws, rules, or regulations relating to the Medicaid or
26 Medicare programs.
27 (f) Upon licensure renewal, each applicant must submit
28 to the agency, under penalty of perjury, an affidavit of
29 compliance with the background screening provisions of this
30 section.
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1 (g) Proof of compliance with the level 2 background
2 screening requirements of chapter 435 submitted within the
3 previous 5 years for any other Florida health care licensure
4 requirements shall be accepted to fulfill the Department of
5 Law Enforcement and Department of Children and Family Services
6 background check, provided that such proof of compliance is
7 accompanied, under penalty of perjury, by an affidavit of
8 compliance with these background screening provisions.
9 (6) The home medical equipment supplier must also
10 obtain and maintain professional and commercial liability
11 insurance. Proof of liability insurance, as defined in s.
12 624.605, must be submitted with the application. The agency
13 shall set the required amounts of liability insurance by rule,
14 but the required amount must not be less than $250,000 per
15 claim. In the case of contracted services, it is required that
16 the contractor have liability insurance of not less than
17 $250,000 per claim.
18 (7) A provisional license shall be issued to an
19 approved applicant for initial licensure for a period of 45
20 days, during which time a survey must be conducted
21 demonstrating substantial compliance with this section. If
22 substantial compliance is demonstrated, a standard license
23 shall be issued to expire 2 years after the effective date of
24 the provisional license.
25 (8) Ninety days before the expiration date, an
26 application for renewal must be submitted to the agency under
27 oath on forms furnished by the agency, and a license shall be
28 renewed if the applicant has met the requirements established
29 under this part and applicable rules. The home medical
30 equipment supplier must file with the application satisfactory
31 proof that it is in compliance with this part and applicable
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1 rules. The home medical equipment supplier must submit
2 satisfactory proof of its financial ability to comply with the
3 requirements of this part.
4 (9) When a change of ownership of a home medical
5 equipment supplier occurs, the prospective owner must submit
6 an initial application for a license at least 60 days before
7 the effective date of the change of ownership. An application
8 for change of ownership of a license is required when
9 ownership, a majority of the ownership, or controlling
10 interest of a licensed home medical equipment supplier is
11 transferred or assigned and when a licensee agrees to
12 undertake or provide services to the extent that legal
13 liability for operation of the home medical equipment supplier
14 rests with the licensee. A provisional license shall be issued
15 to the new owner for a period of 45 days, during which time a
16 survey must be conducted demonstrating substantial compliance
17 with this section. If substantial compliance is demonstrated,
18 a standard license shall be issued to expire 2 years after the
19 issuance of the provisional license.
20 (10) The license fee, annual renewal fee, and change
21 of ownership fee required of a home medical equipment supplier
22 is nonrefundable. The agency shall set the fees in an amount
23 that is sufficient to cover its costs in carrying out its
24 responsibilities under this part. However, state, county, or
25 municipal governments applying for licenses under this part
26 are exempt from the payment of license fees. All fees
27 collected under this part must be deposited in the Health Care
28 Trust Fund for the administration of this part.
29 (11) When a duplicate license must be issued, a fee
30 shall be assessed, not to exceed the actual cost of
31 duplicating and mailing.
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1 (12) When applications are mailed out upon request, a
2 fee shall be assessed, not to exceed the cost of the printing,
3 preparation, and mailing.
4 (13) The license must be displayed in a conspicuous
5 place in the administrative office of the home medical
6 equipment supplier and is valid only while in the possession
7 of the person or entity to which it is issued. The license may
8 not be sold, assigned, or otherwise transferred, voluntarily
9 or involuntarily, and is valid only for the home medical
10 equipment supplier and location for which originally issued.
11 (14) A home medical equipment supplier that offers or
12 advertises to the public that it provides any service for
13 which licensure is required under this section must include in
14 such advertisement the license number issued to it by the
15 agency.
16 (15) A home medical equipment supplier against whom a
17 proceeding for revocation or suspension, or for denial of a
18 renewal application, is pending at the time of license renewal
19 may be issued a provisional license effective until final
20 disposition by the agency of such proceedings. If judicial
21 relief is sought from the final disposition, the court that
22 has jurisdiction may issue a temporary permit for the duration
23 of the judicial proceeding.
24 400.822 Administrative penalties; injunctions;
25 emergency orders; moratoriums.--
26 (1) The agency may deny, revoke, or suspend a license,
27 or impose an administrative fine not to exceed $10,000 per
28 violation, per day, or initiate injunctive proceedings under
29 s. 400.85.
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1 (2) Any of the following actions by a home medical
2 equipment supplier or any of its employees is grounds for
3 administrative action or penalties by the agency:
4 (a) Violation of this part or of applicable rules.
5 (b) An intentional, reckless, or negligent act that
6 materially affects the health or safety of a patient.
7 (3) The agency may deny or revoke the license of any
8 applicant that:
9 (a) Made a false representation or omission of any
10 material fact in making the application, including the
11 submission of an application that conceals the controlling or
12 ownership interest of any officer, director, agent, manager,
13 employee, affiliated person, partner, or shareholder who may
14 not be eligible to participate;
15 (b) Has been previously found by any licensing,
16 certifying, or professional standards board or agency to have
17 violated the standards or conditions relating to licensure or
18 certification or the quality of services provided; or
19 (c) Has been or is currently excluded, suspended, or
20 terminated from, or has involuntarily withdrawn from
21 participation in, Florida's Medicaid program or any other
22 state's Medicaid program, or from participation in the
23 Medicare program or any other governmental or private health
24 care or health insurance program.
25 (4) The agency may issue an emergency order
26 immediately suspending or revoking a license when it
27 determines that any condition in the licensed supplier
28 presents a clear and present danger to public health and
29 safety.
30 (5) The agency may impose an immediate moratorium on
31 any licensed home medical equipment supplier when the agency
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1 determines that any condition in the home medical equipment
2 supplier presents a threat to public health or safety.
3 400.823 Licensure inspection.--
4 (1) The agency shall make or cause to be made such
5 inspections and investigations as it deems necessary,
6 including:
7 (a) Licensure inspections.
8 (b) Inspections directed by the federal Health Care
9 Financing Administration.
10 (c) Licensure complaint investigations, including full
11 licensure investigations with a review of all licensure
12 standards as outlined in administrative rules. Complaints
13 received by the agency from individuals, organizations, or
14 other sources are subject to review and investigation by the
15 agency.
16 (2) The agency shall accept, in lieu of its own
17 periodic inspections for licensure, the survey or inspection
18 of an accrediting organization, provided the accreditation of
19 the licensed home medical equipment supplier is not
20 provisional and provided the licensed home medical equipment
21 supplier authorizes release of, and the agency receives the
22 report of, the accrediting organization. The agency shall
23 develop, and adopt by rule, criteria for accepting survey
24 reports of accrediting organizations in lieu of conducting a
25 state licensure inspection.
26 400.824 Minimum standards.--As a requirement of
27 licensure, home medical equipment suppliers shall:
28 (1) Offer and provide home medical equipment, and
29 services as necessary, to consumers who purchase or rent
30 equipment that requires such services.
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1 (2) Provide at least one category of equipment
2 directly, filling orders from its own inventory.
3 (3) Respond to orders received for other equipment by
4 filling those orders from its own inventory or inventory from
5 other companies with which it has contracted to fill such
6 orders, or by fabricating or fitting items for sale from
7 supplies purchased under contract.
8 (4) Maintain trained personnel to coordinate order
9 fulfillment and schedule timely equipment and service
10 delivery.
11 (5) As necessary in relation to the sophistication of
12 the equipment and services being provided, ensure that
13 delivery personnel are appropriately trained to conduct an
14 environment and equipment compatibility assessment;
15 appropriately and safely set up the equipment; instruct
16 patients and caregivers in the safe operation and client
17 maintenance of the equipment; and recognize when additional
18 education or followup patient compliance monitoring is
19 appropriate.
20 (6) Ensure that patients are made aware of service
21 hours and emergency service procedures.
22 (7) At the time of the initial delivery, set up an
23 appropriate followup home medical equipment service schedule
24 as needed for such times as, but not limited to, periodic
25 maintenance, supply delivery, and other related activities.
26 (8) Arrange for emergency service after normal
27 business hours; provide refresher and review training for
28 appropriate personnel; establish a system for resolution of
29 complaints and service problems; and provide for timely
30 replacement or delivery of disposable or consumable equipment
31 supplies.
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1 (9) Honor all warranties express and implied under
2 applicable state law.
3 (10) Answer any questions or complaints a consumer has
4 about an item or use of an item that the consumer purchases or
5 rents.
6 (11) Maintain and repair directly, or through a
7 service contract with another company, items rented to
8 consumers.
9 (12) Accept returns of substandard or unsuitable items
10 from consumers. For purposes of this subsection,
11 "substandard" means less than full quality for the particular
12 item and "unsuitable" means inappropriate for the consumer at
13 the time it was fitted or sold.
14 (13) Disclose consumer information to each consumer
15 who rents or purchases items, including all applicable
16 warranty information. This information consists of the
17 supplier standards to which it must conform.
18 (14) Maintain patient payment and service records in
19 accordance with the requirements of this part.
20 (15)(a) Designate appropriate staff as intake
21 coordinators, and ensure that order intake personnel are
22 appropriately trained in the types of equipment and products,
23 commonly occurring medical conditions, service procedures,
24 third-party billing, and insurance requirements and coverage.
25 (b) Train intake coordinators in a basic understanding
26 of the following areas: dealing with patient and caregiver
27 needs; and other, nonhome medical equipment provider services
28 as they relate to home medical equipment services and home
29 care patient crisis management.
30 (16) Establish procedures for maintaining a record of
31 the employment history, including background screening as
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1 required by s. 400.843, of all home medical equipment supplier
2 personnel. A home medical equipment supplier must require its
3 personnel to submit an employment history to the home medical
4 equipment supplier and must verify the employment history,
5 unless through diligent efforts such verification is not
6 possible. There is no monetary liability on the part of, and
7 no cause of action for damages arising against a former
8 employer, a prospective employee, or a prospective independent
9 contractor with a licensed home medical equipment supplier who
10 reasonably and in good faith communicates his or her honest
11 opinions about the former employee's job performance. This
12 subsection does not affect the official immunity of an officer
13 or employee of a public corporation.
14 (17) Upon request by the consumer or as otherwise
15 required by state or federal laws, rules, and regulations,
16 assist consumers with meeting the necessary filing
17 requirements to obtain third-party payment to which a consumer
18 may be entitled.
19 (18) Maintain safe premises.
20 (19) Comply with all other state and federal laws.
21 400.825 Rules establishing minimum standards.--The
22 agency shall adopt, publish, and enforce rules to implement
23 this part, which must provide reasonable and fair minimum
24 standards relating to:
25 (1) The qualifications and minimum training
26 requirements of all home medical equipment supplier personnel.
27 (2) License application and renewal.
28 (3) License and inspection fees.
29 (4) Financial ability to operate.
30 (5) The administration of the home medical equipment
31 supplier.
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1 (6) Procedures for maintaining patient records.
2 (7) Ensuring that the home medical equipment and
3 services provided by a home medical equipment supplier are in
4 accordance with the plan of treatment established for each
5 patient, when provided as a part of a plan of treatment.
6 (8) Standards for contractual arrangements for the
7 provision of home medical equipment and services by providers
8 not employed by the home medical equipment supplier providing
9 for the consumer's needs.
10 (9) Physical location and zoning requirements.
11 (10) Customized orthotics.
12 (11) Home medical equipment requiring home medical
13 equipment services.
14 400.83 Clinical records.--The home medical equipment
15 supplier must maintain for each patient a clinical record that
16 includes the products the home medical equipment supplier has
17 provided. Such records must contain any physician's orders,
18 pertinent past and current medical, nursing, social, and other
19 therapeutic information, the plan of treatment, and other such
20 information as is necessary for the safe and adequate care of
21 the patient. When home medical equipment supplier services are
22 terminated, the record must show the date and reason for
23 termination. Such records are considered patient records under
24 s. 455.241, and must be maintained by the home medical
25 equipment supplier for 5 years following termination of
26 services. If a patient transfers to another home medical
27 equipment supplier, a copy of his or her record must be
28 provided to the other home medical equipment supplier upon
29 request.
30 400.84 Notice of toll-free telephone number for
31 central abuse registry.--On or before the first day home
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1 medical equipment is delivered to patient's home, any home
2 medical equipment supplier licensed under this part must
3 inform the consumer and his or her immediate family, if
4 appropriate, of the right to report abusive, neglectful, or
5 exploitative practices. The statewide toll-free telephone
6 number for the central abuse registry must be provided to
7 consumers in a manner that is clearly legible and must include
8 the words: "To report abuse, neglect, or exploitation, please
9 call toll-free (phone number)." Home medical equipment
10 suppliers shall establish appropriate policies and procedures
11 for providing such notice to consumers.
12 400.843 Background screening of home medical equipment
13 supplier personnel.--The agency shall require employment
14 screening as provided in chapter 435, using the level 1
15 standards for screening set forth in that chapter, for home
16 medical equipment supplier personnel.
17 (1) The agency may grant exemptions from
18 disqualification from employment under this section as
19 provided in s. 435.07.
20 (2) The general manager of each home medical equipment
21 supplier must sign an affidavit annually, under penalty of
22 perjury, stating that all home medical equipment supplier
23 personnel hired on or after October 1, 1997, who enter the
24 home of a patient in the capacity of their employment have
25 been screened and that its remaining personnel have worked for
26 the home medical equipment supplier continuously since before
27 October 1, 1997.
28 (3) Proof of compliance with the screening
29 requirements of s. 39.076, s. 110.1127, s. 393.0655, s.
30 394.457, s. 397.451, s. 402.305, s. 402.313, s. 409.175, or s.
31 464.008 or this part shall be accepted in lieu of the
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1 requirements of this section if the person has been
2 continuously employed in the same type of occupation for which
3 he or she is seeking employment without a breach in service
4 that exceeds 180 days, the proof of compliance is not more
5 than 2 years old, and the person has been screened through the
6 central abuse registry and tracking system of the department
7 and by the Department of Law Enforcement. An employer or
8 contractor shall directly provide proof of compliance to
9 another employer or contractor, and a potential employer or
10 contractor may not accept any proof of compliance directly
11 from the person requiring screening. Proof of compliance with
12 the screening requirements of this section shall be provided
13 upon request to the person screened by the home medical
14 equipment supplier.
15 (4) There is no monetary liability on the part of, and
16 no cause of action for damages arises against, a licensed home
17 medical equipment supplier, that, upon notice of a confirmed
18 report of adult abuse, neglect, or exploitation under chapter
19 415, terminates the employee against whom the report was
20 issued, whether or not the employee has filed for an exemption
21 with the agency, and whether or not the time for filing has
22 expired.
23 (5) The costs of processing the statewide
24 correspondence criminal records checks and the search of the
25 department's central abuse registry must be borne by the home
26 medical equipment supplier or by the person being screened, at
27 the discretion of the home medical equipment supplier.
28 (6) Neither the agency nor the home medical equipment
29 supplier may use the criminal records, juvenile records, or
30 central abuse registry information of a person for any purpose
31 other than determining whether that person meets minimum
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1 standards of good moral character for home medical equipment
2 supplier personnel.
3 (7)(a) It is a misdemeanor of the first degree,
4 punishable under s. 775.082 or s. 775.083, for any person
5 willfully, knowingly, or intentionally to:
6 1. Fail, by false statement, misrepresentation,
7 impersonation, or other fraudulent means, to disclose in any
8 application for voluntary or paid employment a material fact
9 used in making a determination as to such person's
10 qualifications to be an employee under this section;
11 2. Operate or attempt to operate an entity licensed
12 under this part with persons who do not meet the minimum
13 standards for good moral character as contained in this
14 section; or
15 3. Use information from the criminal records or
16 central abuse registry obtained under this section for any
17 purpose other than screening that person for employment as
18 specified in this section, or release such information to any
19 other person for any purpose other than screening for
20 employment under this section.
21 (b) It is a felony of the third degree, punishable
22 under s. 775.082, s. 775.083, or s. 775.084, for any person
23 willfully, knowingly, or intentionally to use information from
24 the juvenile records of a person obtained under this section
25 for any purpose other than screening for employment under this
26 section.
27 400.845 Procedures for screening of home medical
28 equipment supplier personnel.--A person employed by home
29 medical equipment suppliers shall, within 5 working days after
30 starting to work, submit to the home medical equipment
31 supplier or registrant a complete set of information necessary
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1 to conduct a screening under this section. The person must
2 sign an affidavit stating whether the person meets the minimum
3 standards for good moral character under this section. The
4 home medical equipment supplier shall submit the information
5 to the Department of Law Enforcement and to the department's
6 central abuse registry and tracking system for processing. If
7 disposition information is missing on a criminal record, it is
8 the responsibility of the person being screened to obtain and
9 supply the missing information within 30 days. Failure to
10 supply the missing information or to show reasonable efforts
11 to obtain such information will result in automatic
12 disqualification for employment.
13 (1) Home medical equipment supplier personnel hired on
14 or after October 1, 1997, must be placed on probationary
15 status pending a determination of compliance with minimum
16 standards for good moral character.
17 (2) The home medical equipment supplier must
18 automatically terminate the employment of any of its personnel
19 found to be in noncompliance with the minimum standards for
20 good moral character under this section unless such person has
21 obtained an exemption under s. 400.843(1).
22 (3) The general manager of each home medical equipment
23 supplier must sign an affidavit annually, under penalty of
24 perjury, stating that all personnel hired on or after October
25 1, 1997, have been screened and that its remaining personnel
26 have worked for the home medical equipment supplier
27 continuously since before October 1, 1997.
28 400.85 Injunction proceedings.--The agency may
29 institute injunction proceedings in a court of competent
30 jurisdiction when violation of this part or of applicable
31
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1 rules constitutes an emergency affecting the immediate health
2 and safety of a patient or consumer.
3 400.86 Prohibited referrals to home medical equipment
4 suppliers.--
5 (1) A physician licensed under chapter 458 or chapter
6 459 must comply with s. 455.236.
7 (2) A hospital or an ambulatory surgical center that
8 has a financial interest in a home medical equipment supplier
9 is prohibited from requiring any physician on its staff to
10 refer a patient to the home medical equipment supplier.
11 (3)(a) A violation of this section is punishable by an
12 administrative fine not to exceed $15,000. The proceeds of
13 such fines must be deposited into the Health Care Trust Fund.
14 (b) A physician who violates this section is subject
15 to disciplinary action by the appropriate board under s.
16 458.331(2) or s. 459.015(2). A hospital or ambulatory surgical
17 center that violates this section is subject to the rules
18 adopted by the agency under s. 395.0185(2).
19 400.65 Rebates prohibited; penalties.--
20 (1) It is unlawful for any person to pay or receive
21 any commission, bonus, kickback, or rebate or engage in any
22 split-fee arrangement, in any form whatsoever, with any
23 physician, surgeon, organization, or person, either directly
24 or indirectly, for patients referred to a licensed supplier.
25 (2) The agency shall adopt rules which assess
26 administrative penalties for acts prohibited in subsection
27 (1). In the case of an entity licensed by the agency, such
28 penalties may include any disciplinary action available to the
29 agency under the appropriate licensing laws. In the case of an
30 entity not licensed by the agency, such penalties may include
31 a fine not to exceed $50,000.
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1 Section 2. This act shall take effect October 1, 1997.
2
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4 HOUSE SUMMARY
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6 equipment suppliers by the Agency for Health Care
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