Senate Bill 1612

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



    Florida Senate - 1999                                  SB 1612

    By Senator Meek





    36-933A-99

  1                      A bill to be entitled

  2         An act relating to health care; amending s.

  3         400.063, F.S.; providing for use of moneys in

  4         the Resident Protection Trust Fund to operate a

  5         facility under receivership; amending s.

  6         400.126, F.S.; requiring the Agency for Health

  7         Care Administration to petition a court to

  8         appoint a receiver for a nursing home facility

  9         prior to delicensure or decertification;

10         providing conditions under which the

11         receivership may be terminated; providing for

12         use of funds in the Resident Protection Trust

13         Fund; amending s. 400.23, F.S.; requiring the

14         Agency for Health Care Administration to adopt

15         rules providing minimum staffing requirements

16         for certified nursing assistants in nursing

17         home facilities; prohibiting health care

18         entities from taking retaliatory action against

19         any person who discloses unlawful acts of the

20         entity or its employees; providing definitions;

21         providing a cause of action for aggrieved

22         persons; authorizing specified court actions;

23         requiring health care entities to provide

24         notice on their premises that such retaliatory

25         action is not permitted; providing an effective

26         date.

27

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

29

30         Section 1.  Subsection (1) of section 400.063, Florida

31  Statutes, is amended to read:

                                  1

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






    Florida Senate - 1999                                  SB 1612
    36-933A-99




  1         400.063  Resident Protection Trust Fund.--

  2         (1)  A Resident Protection Trust Fund shall be

  3  established for the purpose of collecting and disbursing funds

  4  generated from the license fees and administrative fines as

  5  provided for in ss. 393.0673(2), 400.062(3)(b), 400.111(1),

  6  400.121(2), and 400.23(9).  Such funds shall be solely for the

  7  sole purpose of paying for the appropriate alternate

  8  placement, care, and treatment of residents who are removed

  9  from a facility licensed under this part or a facility

10  specified in s. 393.0678(1) in which the agency determines

11  that existing conditions or practices constitute an immediate

12  danger to the health, safety, or security of the residents or

13  for the operation of a facility under receivership as provided

14  in s. 400.126.  If the agency determines that it is in the

15  best interest of the health, safety, or security of the

16  residents to provide for an orderly removal of the residents

17  from the facility, the agency may utilize such funds to

18  maintain and care for the residents in the facility pending

19  removal and alternative placement.  The maintenance and care

20  of the residents shall be under the direction and control of a

21  receiver appointed pursuant to s. 393.0678(1) or s.

22  400.126(1).  However, funds may be expended in an emergency

23  upon a filing of a petition for a receiver, upon the

24  declaration of a state of local emergency pursuant to s.

25  252.38(3)(a)5., or upon a duly authorized local order of

26  evacuation of a facility by emergency personnel to protect the

27  health and safety of the residents.

28         Section 2.  Present subsections (2) through (11) of

29  section 400.126, Florida Statutes, are redesignated as

30  subsections (3) through (12), respectively, and a new

31  subsection (2) is added to that section to read:

                                  2

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






    Florida Senate - 1999                                  SB 1612
    36-933A-99




  1         400.126  Receivership proceedings.--

  2         (2)(a)  Prior to initiating the delicensure or

  3  decertification of a nursing home facility, the agency shall

  4  petition a court of competent jurisdiction for the appointment

  5  of a receiver, who shall operate the facility in accordance

  6  with this section until:

  7         1.  The facility has been sold to new ownership; or

  8         2.  The facility has been brought into compliance with

  9  all applicable care standards and the owner or operator has

10  satisfied the agency that it has the means and intent to

11  operate the facility in full compliance with all state and

12  federal standards.

13         (b)  The agency may adopt rules necessary to administer

14  this subsection. Funds necessary for administering this

15  subsection shall be provided from the Resident Protection

16  Trust Fund, in accordance with s. 400.063.

17         Section 3.  Present subsections (3) through (13) of

18  section 400.23, Florida Statutes, 1998 Supplement, are

19  redesignated as subsections (4) through (14), respectively,

20  and a new subsection (3) is added to that section to read:

21         400.23  Rules; criteria; Nursing Home Advisory

22  Committee; evaluation and rating system; fee for review of

23  plans.--

24         (3)  The agency shall adopt rules prescribing the

25  minimum staffing requirements for certified nursing assistants

26  in nursing home facilities. These rules must:

27         (a)  Require that each nursing home facility:

28         1.  Maintains a minimum ratio of certified nursing

29  assistants to residents of not less than:

30         a.  Day shift:  1 certified nursing assistant for every

31  8 residents.

                                  3

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






    Florida Senate - 1999                                  SB 1612
    36-933A-99




  1         b.  Afternoon shift:  1 certified nursing assistant for

  2  every 10 residents.

  3         c.  Night shift:  1 certified nursing assistant for

  4  every 15 residents.

  5         2.  Maintains a minimum ratio of registered nurses or

  6  licensed practical nurses to residents of not less than:

  7         a.  Day shift:  1 nurse for every 15 residents.

  8         b.  Afternoon shift:  1 nurse for every 25 residents.

  9         c.  Night shift:  1 nurse for every 35 residents.

10         (b)  Prohibit any employee who is designated as a

11  member of the nursing staff from providing services such as

12  food preparation, housekeeping, laundry, or maintenance

13  services, and prohibit any person who is employed to provide

14  such services from providing nursing care to residents or

15  being counted in determining the ratios.

16         (c)  Provide that these requirements apply to all

17  nursing home facility residents, including respite care

18  residents, and adjust the requirements upward to meet any

19  special care needs of residents; require that staffing

20  assignments be based on accurate acuity levels and the

21  intensity and time needed to provide safe, preventive, and

22  restorative care; and ensure that the requirements are

23  enforced for all residents, regardless of payment source,

24  without any waivers.

25         (d)  Require each nursing home facility to post the

26  current ratios of residents to staff for each wing or floor of

27  the facility and for each shift. The posted ratios must show

28  separately the number of residents to licensed nursing staff

29  and the number of residents to unlicensed nursing staff

30  directly responsible for resident care. In addition, such

31  information must be posted for the most recently concluded

                                  4

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






    Florida Senate - 1999                                  SB 1612
    36-933A-99




  1  cost-reporting period in the form of average daily staffing

  2  ratios for that period. This information must be posted in a

  3  manner that is visible and accessible to all residents, their

  4  families, caregivers, and potential consumers in each

  5  facility.

  6         Section 4.  (1)  A health care entity must not take any

  7  retaliatory action against any person because the person:

  8         (a)  Discloses or threatens to disclose an activity,

  9  policy, procedure, action, or failure to act on the part of

10  the employer or another employer with whom there is a business

11  relationship which the employee reasonably believes is in

12  violation of a federal, state, or local law, rule, ordinance,

13  declaratory ruling, standard, professional or ethical code,

14  contract provision, or subscriber or membership agreement, or

15  is incompatible with a clear mandate of public policy.

16         (b)  Provides information to or testifies before any

17  public body conducting an investigation, hearing, or inquiry

18  into any alleged violation of a federal, state, or local law,

19  rule, regulation, ordinance, declaratory ruling, standard,

20  professional or ethical code, contract provision, or

21  subscriber or membership agreement, or into any alleged

22  incompatibility with a clear mandate of public policy.

23         (c)  Objects to or refuses to participate in any

24  activity, policy, or practice that the employee reasonably

25  believes:

26         1.  Is in violation of a federal, state, or local law,

27  rule, regulation, ordinance, declaratory ruling, standard,

28  professional or ethical code, contract provision, or

29  subscriber or membership agreement, or is incompatible with a

30  clear mandate of public policy; or

31         2.  Is fraudulent or criminal.

                                  5

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






    Florida Senate - 1999                                  SB 1612
    36-933A-99




  1         (2)  Upon a violation of any of the provisions of this

  2  section, an aggrieved person may, within 3 years, institute a

  3  civil action in a court of competent jurisdiction. Upon the

  4  application of any party, a jury trial shall be directed to

  5  try the validity of any claim under this section as specified

  6  in the suit. All remedies available in common law tort actions

  7  are available to prevailing plaintiffs. These remedies are in

  8  addition to any legal or equitable relief provided by law.

  9  Interest on any damages awarded must be awarded at the

10  prevailing rate. The court may also order:

11         (a)  A temporary, preliminary, or permanent injunction

12  to restrain continued violation of this section;

13         (b)  The reinstatement of the employee to the same

14  position held before the retaliatory action or to an

15  equivalent position;

16         (c)  The reinstatement of full fringe benefits and

17  seniority rights;

18         (d)  Compensatory damages, including compensation for

19  lost wages, benefits, and other remuneration;

20         (e)  The payment by the employer of reasonable costs,

21  including expert witness fees and attorney's fees;

22         (f)  Punitive damages; or

23         (g)  An assessment of a civil fine of not more than

24  $1,000 for the first violation of this section and not more

25  than $5,000 for each subsequent violation, which must be paid

26  to the State Treasurer for deposit into the General Revenue

27  Fund.

28         (3)  Health care entities shall post and keep posted,

29  in conspicuous places on their premises where notices to

30  employees and applicants for employment are customarily

31  posted, a notice to be prepared or approved by the Secretary

                                  6

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






    Florida Senate - 1999                                  SB 1612
    36-933A-99




  1  of the Department of Labor and Employment Security, setting

  2  forth excerpts from or summaries of the pertinent provisions

  3  of this section and information pertaining to the filing of a

  4  charge under this section.

  5         (4)  As used in this section, the term:

  6         (a)  "Health care entity" means any governmental,

  7  nonprofit, or for-profit employer in the health care industry,

  8  including health care facilities, carriers, and any other

  9  public or private entity whose main source of revenue is

10  derived from the provision of health care supplies or services

11  to patients, health care facilities, or health care carriers.

12  The term also includes those federal, state, or local agencies

13  whose responsibilities include oversight of health care or

14  health care entities. This term includes any individual,

15  partnership, association, corporation, or any person or group

16  of persons, all branches of federal or state government,

17  counties and municipalities, or any other political

18  subdivision of the state, or any authority, commission, or

19  board, or any other agency or instrumentality thereof.

20         (b)  "Person" includes any employee, former employee,

21  consumer, provider, independent contractor, job applicant or

22  bidder, individual, partnership, association, corporation,

23  public body, or group of persons.

24         (c)  "Public body" means:

25         1.  The United States Congress, the State Legislature,

26  or any elected local governmental body, or any member or

27  employee thereof;

28         2.  Any federal, state, or local judiciary, or any

29  member or employee thereof, or any grand or petit jury;

30

31

                                  7

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






    Florida Senate - 1999                                  SB 1612
    36-933A-99




  1         3.  Any federal, state, or local regulatory,

  2  administrative, or public agency or authority, or

  3  instrumentality thereof;

  4         4.  Any federal, state, or local law enforcement

  5  agency, prosecutorial office, or police or peace officer;

  6         5.  Any federal, state, or local department of an

  7  executive branch of government; or

  8         6.  Any division, board, bureau, office, committee, or

  9  commission of any of the public bodies described in this

10  paragraph.

11         (d)  "Retaliatory action" means the discharge,

12  suspension, or demotion or other adverse change in the

13  person's wages, benefits, or terms or conditions of

14  employment. The term includes actions, failures to act,

15  threats, intimidations, and the cancellation of or refusal to

16  renew a contract.

17         Section 5.  This act shall take effect July 1, 1999.

18

19            *****************************************

20                          SENATE SUMMARY

21    Requires the Agency for Health Care Administration to
      petition a court to appoint a receiver for a nursing home
22    facility prior to delicensure or decertification of the
      facility. Provides conditions under which the
23    receivership may be terminated. Provides that moneys in
      the Resident Protection Trust Fund be used by the
24    receiver. Requires the Agency for Health Care
      Administration to adopt rules providing minimum staffing
25    requirements for certified nursing assistants in nursing
      home facilities. Prohibits health care entities from
26    taking retaliatory action against any person who
      discloses unlawful acts of the entity or its employees.
27    Provides definitions. Provides a cause of action for
      aggrieved persons, and authorizes specified court
28    actions. Requires health care entities to provide notice
      on their premises that such retaliatory action is not
29    permitted.

30

31

                                  8