House Bill 1983

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    Florida House of Representatives - 1999                HB 1983

        By the Committee on Health Care Licensing & Regulation and
    Representatives Fasano, Ogles, Heyman, Ritter, Morroni and
    Kelly




  1                      A bill to be entitled

  2         An act relating to home health agencies;

  3         amending s. 400.462, F.S.; providing

  4         definitions; amending s. 400.464, F.S.;

  5         revising requirements for licensure and

  6         exemptions from licensure; amending s. 400.471,

  7         F.S.; revising requirements for insurance

  8         coverage and license renewal; specifying

  9         additional circumstances in which a license may

10         not be issued; amending s. 400.474, F.S.;

11         revising grounds for disciplinary action;

12         providing penalties for operating without a

13         license; providing grounds for denial,

14         suspension, or revocation of a license or

15         imposition of an administrative fine; amending

16         s. 400.484, F.S.; establishing administrative

17         fines for various classes of deficiencies in

18         the operation of a home health agency; amending

19         s. 400.487, F.S.; revising provisions relating

20         to patient assessment, plan of care, and

21         provision of services; creating s. 400.488,

22         F.S.; providing for assistance with

23         self-administration of medication; authorizing

24         rules of the Agency for Health Care

25         Administration; amending s. 400.491, F.S.;

26         providing for maintenance of service provision

27         plans; amending s. 400.497, F.S.; revising

28         authority to adopt rules relating to minimum

29         standards; amending s. 400.506, F.S.; revising

30         requirements for licensure of nurse registries;

31         providing for referral of home health aides by

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  1         nurse registries; amending s. 400.509, F.S.;

  2         revising registration requirements for

  3         particular service providers exempt from

  4         licensure; providing background screening

  5         requirements; amending s. 400.512, F.S.;

  6         revising background screening requirements for

  7         home health agency personnel; amending s.

  8         408.032, F.S.; correcting a cross reference;

  9         establishing a Task Force on Home Health

10         Services Licensure; providing duties; requiring

11         a report; providing an effective date.

12

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

14

15         Section 1.  Section 400.462, Florida Statutes, is

16  amended to read:

17         400.462  Definitions.--As used in this part, the term:

18         (1)  "Administrator" means a direct employee of the

19  home health agency, or of a related organization, or of a

20  management company that has a contract to manage the home

21  health agency, to whom the governing body has delegated the

22  responsibility for day-to-day administration of the home

23  health agency. The administrator must be a licensed physician,

24  a physician assistant or registered nurse licensed to practice

25  in this state, or an individual with at least 1 year of

26  supervisory or administrative experience in home health care

27  or in a facility licensed under chapter 395 or under part II

28  or part III of this chapter. An administrator may manage a

29  maximum of five licensed home health agencies located within

30  one agency service district or within an immediately

31  contiguous county. If the home health agency is licensed under

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  1  this chapter and is part of a retirement community that

  2  provides multiple levels of care, an employee of the

  3  retirement community may administer the home health agency and

  4  up to a maximum of four entities licensed under this chapter

  5  that are owned, operated, or managed by the same corporate

  6  entity. An administrator shall designate, in writing, for each

  7  licensed entity, a qualified alternate administrator to serve

  8  during the absence of the administrator.

  9         (2)  "Agency" means the Agency for Health Care

10  Administration.

11         (3)(1)  "Certified nursing assistant" means any person

12  who has been issued a certificate under after fulfilling the

13  requirements of s. 400.211. The licensed home health agency or

14  licensed nurse registry shall ensure that the certified

15  nursing assistant employed by or under contract with the home

16  health agency or licensed nurse registry is adequately trained

17  to perform the tasks of a home health aide in the home

18  setting.

19         (4)  "Client" means an elderly, handicapped, or

20  convalescent individual who receives personal care services,

21  companion services, or homemaker services in the individual's

22  home or place of residence.

23         (5)(2)  "Companion" or "sitter" means a person who

24  cares for an elderly, handicapped, or convalescent individual

25  and accompanies such individual on trips and outings and may

26  prepare and serve meals to such individual. A companion may

27  not provide hands-on personal care to a client.

28         (6)(3)  "Department" means the Department of Children

29  and Family Health and Rehabilitative Services.

30         (7)  "Director of nursing" means a registered nurse,

31  and direct employee of the agency or related business entity,

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  1  who is a graduate of an approved school of nursing and is

  2  licensed in this state; who has at least 1 year of supervisory

  3  experience as a registered nurse in a licensed home health

  4  agency, a facility licensed under chapter 395, or a facility

  5  licensed under part II or part III of this chapter; and who is

  6  responsible for overseeing the professional nursing and home

  7  health aid delivery of services of the agency. An employee may

  8  be the director of nursing of a maximum of five licensed home

  9  health agencies operated by a related business entity and

10  located within one agency service district or within an

11  immediately contiguous county. If the home health agency is

12  licensed under this chapter and is part of a retirement

13  community that provides multiple levels of care, an employee

14  of the retirement community may serve as the director of

15  nursing of the home health agency and up to four entities

16  licensed under this chapter that are located on the same

17  campus and owned, operated, or managed by the same corporate

18  entity. A director of nursing shall designate, in writing, for

19  each licensed entity, a qualified alternate registered nurse

20  to serve during the absence of the director of nursing.

21         (8)(4)  "Home health agency" means an organization that

22  provides home health services and staffing services for health

23  care facilities.

24         (9)(5)  "Home health agency personnel" means persons

25  who are employed by or under contract with a home health

26  agency and enter the home or place of residence of patients at

27  any time in the course of their employment or contract.

28         (10)(6)  "Home health services" means health and

29  medical services and medical supplies furnished by an

30  organization to an individual by home health agency personnel

31  or by others under arrangements with the agency, on a visiting

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  1  basis, in the individual's home or place of residence.  The

  2  term includes organizations that provide one or more of, but

  3  is not limited to, the following:

  4         (a)  Nursing care.

  5         (b)  Physical, occupational, respiratory, or speech

  6  therapy.

  7         (c)  Home health aide services.

  8         (d)  Dietetics and nutrition practice and nutrition

  9  counseling Nutritional guidance.

10         (e)  Medical supplies, restricted to drugs and

11  biologicals prescribed by a physician.

12         (11)  "Home health aide" means a person who provides

13  hands-on personal care, performs simple procedures as an

14  extension of therapy or nursing services, assists in

15  ambulation or exercises, or assists in administering

16  medications as permitted in rule, and for which the person has

17  received training established by the agency pursuant to s.

18  400.497(1).

19         (12)  "Home infusion therapy" means the administration

20  of intravenous pharmacological or nutritional products to a

21  patient in the patient's home.

22         (13)  "Home infusion therapy provider" means an

23  organization that employs, contracts with, or refers to a

24  licensed professional who has received advanced training and

25  experience in intravenous infusion therapy and who administers

26  infusion therapy to a patient in the patient's home or place

27  of residence.

28         (14)(7)  "Homemaker" means a person who performs

29  household chores that include housekeeping, meal planning and

30  preparation, shopping assistance, and routine household

31  activities for an elderly, handicapped, or convalescent

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  1  individual. A homemaker may not provide hands-on personal care

  2  to a client.

  3         (15)(8)  "Nurse registry" means any person that

  4  procures, offers, promises, or attempts to secure

  5  health-care-related contracts for registered nurses, licensed

  6  practical nurses, certified nursing assistants, home health

  7  aides sitters, companions, or homemakers, who are compensated

  8  by fees as independent contractors, including, but not limited

  9  to, contracts for the provision of services to patients and

10  contracts to provide private duty or staffing services to

11  health care facilities licensed under chapter 395 or this

12  chapter or to other business entities.

13         (16)  "Organization" means a corporation, government or

14  governmental subdivision or agency, partnership, or

15  association, two or more persons having a joint or common

16  interest, or any other legal or commercial entity.  The term

17  does not include an entity that provides services using only

18  volunteers or only individuals related by blood or marriage to

19  the patient or client.

20         (17)(9)  "Patient" means any person who receives home

21  health services in his or her home or place of residence.

22         (18)  "Personal care" means assisting a patient in the

23  activities of daily living, such as dressing, bathing, eating,

24  or personal hygiene, assisting in physical transfer and

25  ambulation, and assisting in administering medications as

26  permitted in rule.

27         (19)  "Physician" means a person licensed under chapter

28  458, chapter 459, chapter 460, or chapter 461.

29         (20)(10)  "Screening" means the assessment of the

30  background of home health agency personnel, nurse registry

31  personnel, and persons registered under s. 400.509 and

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  1  includes employment or contractual history checks, records

  2  checks of the department's central abuse hotline under chapter

  3  415 relating to vulnerable adults, and statewide criminal

  4  records correspondence checks through the Department of Law

  5  Enforcement.

  6         (21)  "Skilled care" means nursing services or

  7  therapeutic services delivered by a health care professional

  8  who is licensed under chapter 464; part I, part III, or part V

  9  of chapter 468; or chapter 486, and who is employed by or

10  under contract with a licensed home health agency or is

11  referred by a licensed nurse registry.

12         (22)(11)  "Staffing services" means services provided

13  to a health care facility, or other business entity, on a

14  temporary basis by licensed health care personnel, including

15  certified nursing assistants and home health aides who are

16  employed by, or work under, the auspices of a licensed home

17  health agency or who are registered with a licensed nurse

18  registry.

19         Section 2.  Section 400.464, Florida Statutes, is

20  amended to read:

21         400.464  Home health agencies to be licensed;

22  expiration of license; exemptions; unlawful acts; penalties.--

23         (1)  Any home health agency must be licensed by the

24  agency for Health Care Administration to operate in this

25  state.  A license issued to a home health agency, unless

26  sooner suspended or revoked, expires 1 year after its date of

27  issuance.  However, any home health agency that is operated by

28  the Federal Government is exempt from this part.

29         (2)  If the licensed home health agency operates

30  related offices, each related office outside the county where

31  the main office is located must be separately licensed.  The

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  1  counties where the related offices are operating must be

  2  specified on the license in the main office.

  3         (3)  An entity receiving a certificate-of-need

  4  exemption under s. 408.036 may request one home health agency

  5  license to provide Medicare and non-Medicare home health

  6  services to residents of the facility and non-Medicare home

  7  health services to persons in one or more counties within the

  8  agency service district where the main office of the home

  9  health agency is located.

10         (3)  The furnishing of only home dialysis services,

11  supplies, or equipment, or personal care services as provided

12  by a community-care-for-the-elderly lead agency under s.

13  430.205, or personal care services provided through a

14  community-care-for-disabled-adults program under s. 410.604,

15  is exempt from this part.  The personal care services

16  exemptions apply only to community-care-for-the-elderly lead

17  agencies and community-care-for-disabled-adults programs that

18  directly provide only personal care services to their clients

19  and do not provide other home health services.

20         (4)  Any program offered through a county health

21  department that makes home visits for the purpose of providing

22  only environmental assessments, case management, health

23  education, or personal care services is exempt from this part.

24         (5)(a)  It is unlawful for any person to offer or

25  advertise home health services to the public unless he or she

26  has a valid license under this part. It is unlawful for any

27  holder of a license issued under this part to advertise or

28  indicate to the public that it holds a home health agency

29  license other than the one it has been issued.

30         (b)  A person who violates paragraph (a) is subject to

31  an injunctive proceeding under s. 400.515.  A violation of

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  1  paragraph (a) is a deceptive and unfair trade practice and

  2  constitutes a violation of the Florida Deceptive and Unfair

  3  Trade Practices Act.

  4         (c)  A person who violates paragraph (a) commits a

  5  misdemeanor of the second degree, punishable as provided in s.

  6  775.082 or s. 775.083.  Any person who commits a second or

  7  subsequent violation commits a misdemeanor of the first

  8  degree, punishable as provided in s. 775.082 or s. 775.083.

  9

10  Each day of continuing violation constitutes a separate

11  offense.

12         (4)(6)  Any home infusion therapy provider shall be

13  licensed as a home health agency or nurse registry.  Any home

14  infusion therapy provider currently authorized to receive

15  Medicare reimbursement under a DME - Part B Provider number

16  for the provision of infusion therapy shall be licensed as a

17  noncertified home health agency. Such a provider shall

18  continue to receive that specified Medicare reimbursement

19  without being certified so long as the reimbursement is

20  limited to those items authorized pursuant to the DME - Part B

21  Provider Agreement and the agency is licensed in compliance

22  with the other provisions of this part.

23         (5)(a)  An organization may not provide, offer, or

24  advertise home health services to the public unless the

25  organization has a valid license or is specifically exempted

26  from licensure under this part. An organization that offers or

27  advertises to the public any service for which licensure or

28  registration is required under this part must include in the

29  advertisement the license or registration number issued to the

30  organization by the agency. The agency shall assess a fine of

31  not less than $100 to any licensee or registrant who fails to

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  1  include the license or registration number when submitting the

  2  advertisement for publication, broadcast, or printing. The

  3  holder of a license issued under this part may not advertise

  4  or indicate to the public that it holds a home health agency

  5  or nurse registry license other than the one it has been

  6  issued.

  7         (b)  A person who violates paragraph (a) is subject to

  8  an injunctive proceeding under s. 400.515. A violation of

  9  paragraph (a) is a deceptive and unfair trade practice and

10  constitutes a violation of the Florida Deceptive and Unfair

11  Trade Practices Act.

12         (c)  A person who violates paragraph (a) commits a

13  misdemeanor of the second degree, punishable as provided in s.

14  775.082 or s. 775.083. A person who commits a second or

15  subsequent violation commits a misdemeanor of the first

16  degree, punishable as provided in s.775.082 or s. 775.083.

17  Each day of continuing violation constitutes a separate

18  offense.

19         (6)  The following shall be exempt from the licensure

20  requirements of this part:

21         (a)  A home health agency operated by the Federal

22  Government.

23         (b)  Home health services provided by a state agency,

24  either directly or through a contractor with:

25         1.  The Department of Elderly Affairs.

26         2.  The Department of Health, a community health

27  center, or a rural health network which furnishes home visits

28  for the purpose of providing environmental assessments, case

29  management, health education, personal care services, family

30  planning, or followup treatment, or for the purpose of

31  monitoring and tracking disease.

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  1         3.  Persons who have a developmental disability, as

  2  defined in s. 393.063.

  3         (c)  A health care professional, whether or not

  4  incorporated, who is licensed under chapter 458, chapter 459,

  5  chapter 464, part I, part III, part V, or part X of chapter

  6  468, chapter 480, chapter 486, chapter 490, or chapter 491,

  7  and who is acting alone within the scope of his or her

  8  professional license to provide care to patients in their

  9  homes.

10         (d)  A home health aide or certified nursing assistant

11  who is acting in his or her individual capacity, within the

12  definitions and standards of such individual's respective

13  occupation, and who provides hands-on care to patients in

14  their homes.

15         (e)  An individual who acts alone, in his or her

16  individual capacity, and who is not employed by or affiliated

17  with a licensed home health agency or registered with a

18  licensed nurse registry. This exemption does not entitle an

19  individual to perform home health services without the

20  required professional license.

21         (f)  The delivery of instructional services in home

22  dialysis and home dialysis supplies and equipment.

23         (g)  The delivery of nursing home services, for which

24  the nursing home is licensed under part II of this chapter, to

25  serve the residents in its facility.

26         (h)  The delivery of assisted living facility services,

27  for which the assisted living facility is licensed under part

28  III of this chapter, to serve the residents in its facility.

29         (i)  The delivery of hospice services, for which the

30  hospice is licensed under part VI of this chapter, to serve

31  hospice patients admitted to its service.

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  1         (j)  A hospital that provides services for which it is

  2  licensed under chapter 395.

  3         (k)  The delivery of community residential services,

  4  for which the community residential home is licensed under

  5  chapter 419, to serve the residents in its facility.

  6         (l)  A not-for-profit, community-based agency that

  7  provides early intervention services to infants and toddlers.

  8         (m)  Certified rehabilitation agencies and

  9  comprehensive outpatient rehabilitation facilities that are

10  certified under Title XVIII of the Social Security Act.

11         (n)  The delivery of adult family-care home services,

12  for which the adult family-care home is licensed under part

13  VII of this chapter, to serve the residents in its facility.

14         Section 3.  Section 400.471, Florida Statutes, 1998

15  Supplement, is amended to read:

16         400.471  Application for license; fee; provisional

17  license; temporary permit.--

18         (1)  Application for an initial license or for renewal

19  of an existing license must be made under oath to the agency

20  for Health Care Administration on forms furnished by it and

21  must be accompanied by the appropriate license fee as provided

22  in subsection (8).  The agency must take final action on an

23  initial licensure application within 60 days after receipt of

24  all required documentation.

25         (2)  The applicant must file with the application

26  satisfactory proof that the home health agency is in

27  compliance with this part and applicable rules, including:

28         (a)  A listing of services to be provided, either

29  directly by the applicant or through contractual arrangements

30  with existing providers;

31

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  1         (b)  The number and discipline of professional staff to

  2  be employed; and

  3         (c)  Proof of financial ability to operate.

  4

  5  If the applicant has applied for a certificate of need under

  6  ss. 408.031-408.045 within the preceding 12 months, the

  7  applicant may submit the proof required during the

  8  certificate-of-need process along with an attestation that

  9  there has been no substantial change in the facts and

10  circumstances underlying the original submission.

11         (3)  An applicant for initial licensure must

12  demonstrate financial ability to operate by submitting a

13  balance sheet and income and expense statement for the first 2

14  years of operation which provide evidence of having sufficient

15  assets, credit, and projected revenues to cover liabilities

16  and expenses. The applicant shall have demonstrated financial

17  ability to operate if the applicant's assets, credit, and

18  projected revenues meet or exceed projected liabilities and

19  expenses.  All documents required under this subsection must

20  be prepared in accordance with generally accepted accounting

21  principles and the financial statement must be signed by a

22  certified public accountant.

23         (4)  Each applicant for licensure must comply with the

24  following requirements:

25         (a)  Upon receipt of a completed, signed, and dated

26  application, the agency shall require background screening of

27  the applicant, in accordance with the level 2 standards for

28  screening set forth in chapter 435. As used in this

29  subsection, the term "applicant" means the administrator, or a

30  similarly titled person who is responsible for the day-to-day

31  operation of the licensed home health agency, and the

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  1  financial officer, or similarly titled individual who is

  2  responsible for the financial operation of the licensed home

  3  health agency.

  4         (b)  The agency may require background screening for a

  5  member of the board of directors of the licensee or an officer

  6  or an individual owning 5 percent or more of the licensee if

  7  the agency reasonably suspects that such individual has been

  8  convicted of an offense prohibited under the level 2 standards

  9  for screening set forth in chapter 435.

10         (c)  Proof of compliance with the level 2 background

11  screening requirements of chapter 435 which has been submitted

12  within the previous 5 years in compliance with any other

13  health care or assisted living licensure requirements of this

14  state is acceptable in fulfillment of paragraph (a). Proof of

15  compliance with background screening which has been submitted

16  within the previous 5 years to fulfill the requirements of the

17  Department of Insurance pursuant to chapter 651 as part of an

18  application for a certificate of authority to operate a

19  continuing care retirement community is acceptable in

20  fulfillment of the Department of Law Enforcement and Federal

21  Bureau of Investigation background check.

22         (d)  A provisional license may be granted to an

23  applicant when each individual required by this section to

24  undergo background screening has met the standards for the

25  abuse registry background check and the Department of Law

26  Enforcement background check, but the agency has not yet

27  received background screening results from the Federal Bureau

28  of Investigation. A standard license may be granted to the

29  licensee upon the agency's receipt of a report of the results

30  of the Federal Bureau of Investigation background screening

31  for each individual required by this section to undergo

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  1  background screening which confirms that all standards have

  2  been met, or upon the granting of a disqualification exemption

  3  by the agency as set forth in chapter 435. Any other person

  4  who is required to undergo level 2 background screening may

  5  serve in his or her capacity pending the agency's receipt of

  6  the report from the Federal Bureau of Investigation. However,

  7  the person may not continue to serve if the report indicates

  8  any violation of background screening standards and a

  9  disqualification exemption has not been requested of and

10  granted by the agency as set forth in chapter 435.

11         (e)  Each applicant must submit to the agency, with its

12  application, a description and explanation of any exclusions,

13  permanent suspensions, or terminations of the licensee or

14  potential licensee from the Medicare or Medicaid programs.

15  Proof of compliance with the requirements for disclosure of

16  ownership and control interest under the Medicaid or Medicare

17  programs may be accepted in lieu of this submission.

18         (f)  Each applicant must submit to the agency a

19  description and explanation of any conviction of an offense

20  prohibited under the level 2 standards of chapter 435 by a

21  member of the board of directors of the applicant, its

22  officers, or any individual owning 5 percent or more of the

23  applicant. This requirement does not apply to a director of a

24  not-for-profit corporation or organization if the director

25  serves solely in a voluntary capacity for the corporation or

26  organization, does not regularly take part in the day-to-day

27  operational decisions of the corporation or organization,

28  receives no remuneration for his or her services on the

29  corporation or organization's board of directors, and has no

30  financial interest and has no family members with a financial

31  interest in the corporation or organization, provided that the

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  1  director and the not-for-profit corporation or organization

  2  include in the application a statement affirming that the

  3  director's relationship to the corporation satisfies the

  4  requirements of this paragraph.

  5         (g)  A license may not be granted to an applicant if

  6  the applicant, administrator, or financial officer has been

  7  found guilty of, regardless of adjudication, or has entered a

  8  plea of nolo contendere or guilty to, any offense prohibited

  9  under the level 2 standards for screening set forth in chapter

10  435, unless an exemption from disqualification has been

11  granted by the agency as set forth in chapter 435.

12         (h)  The agency may deny or revoke licensure if the

13  applicant:

14         1.  Has falsely represented a material fact in the

15  application required by paragraph (e) or paragraph (f), or has

16  omitted any material fact from the application required by

17  paragraph (e) or paragraph (f); or

18         2.  Has been or is currently excluded, suspended,

19  terminated from, or has involuntarily withdrawn from

20  participation in this state's Medicaid program, or the

21  Medicaid program of any other state, or from participation in

22  the Medicare program or any other governmental or private

23  health care or health insurance program.

24         (i)  An application for license renewal must contain

25  the information required under paragraphs (e) and (f).

26         (5)  The home health agency must also obtain and

27  maintain the following insurance coverages, in an liability

28  insurance.  Proof of liability insurance, as defined in s.

29  624.605, must be submitted with the application.  The Agency

30  for Health Care Administration shall set the required amounts

31  of liability insurance by rule, but the required amount must

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  1  not be less than $250,000 per claim, and the home health

  2  agency must submit proof of such coverage with an initial

  3  application for licensure and with each annual application for

  4  license renewal:

  5         (a)  Malpractice insurance, as defined in s.

  6  624.605(1)(k); and

  7         (b)  Liability insurance, as defined in s.

  8  624.605(1)(b).

  9         (6)  Ninety Sixty days before the expiration date, an

10  application for renewal must be submitted to the agency for

11  Health Care Administration under oath on forms furnished by

12  it, and a license must be renewed if the applicant has met the

13  requirements established under this part and applicable rules.

14  The home health agency must file with the application

15  satisfactory proof that it is in compliance with this part and

16  applicable rules.  If there is evidence of financial

17  instability, the home health agency must submit satisfactory

18  proof of its financial ability to comply with the requirements

19  of this part.

20         (7)  When transferring the ownership of a home health

21  agency, the transferee must submit an application for a

22  license at least 60 days before the effective date of the

23  transfer.  If the home health agency is being leased, a copy

24  of the lease agreement must be filed with the application.

25         (8)  The license fee and annual renewal fee required of

26  a home health agency are is nonrefundable.  The agency for

27  Health Care Administration shall set the fees in an amount

28  that is sufficient to cover its costs in carrying out its

29  responsibilities under this part, but not to exceed $1,000.

30  However, state, county, or municipal governments applying for

31  licenses under this part are exempt from the payment of

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  1  license fees.  All fees collected under this part must be

  2  deposited in the Health Care Trust Fund for the administration

  3  of this part.

  4         (9)  The license must be displayed in a conspicuous

  5  place in the administrative office of the home health agency

  6  and is valid only while in the possession of the person to

  7  which it is issued.  The license may not be sold, assigned, or

  8  otherwise transferred, voluntarily or involuntarily, and is

  9  valid only for the home health agency and location for which

10  originally issued.

11         (10)  A home health agency against whom a revocation or

12  suspension proceeding is pending at the time of license

13  renewal may be issued a provisional license effective until

14  final disposition by the agency for Health Care Administration

15  of such proceedings. If judicial relief is sought from the

16  final disposition, the court that has jurisdiction may issue a

17  temporary permit for the duration of the judicial proceeding.

18         (11)  The agency may department shall not issue a

19  license designated as certified to a home health agency that

20  which fails to receive a certificate of need under the

21  provisions of ss. 408.031-408.045 or that fails to satisfy the

22  requirements of a Medicare certification survey from the

23  agency.

24         (12)  The agency may not issue a license to a home

25  health agency that has any unpaid fines assessed under this

26  part.

27         Section 4.  Section 400.474, Florida Statutes, 1998

28  Supplement, is amended to read:

29         400.474  Denial, suspension, revocation of license;

30  injunction; grounds.--

31

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  1         (1)  The agency for Health Care Administration may

  2  deny, revoke, or suspend a license, or impose an

  3  administrative fine in the manner provided in chapter 120, or

  4  initiate injunctive proceedings under s. 400.515.

  5         (2)  Any of the following actions by a home health

  6  agency or its employee is grounds for disciplinary action by

  7  the agency for Health Care Administration:

  8         (a)  Violation of this part or of applicable rules.

  9         (b)  An intentional, reckless, or negligent act that

10  materially affects the health or safety of a patient.

11         (c)  Knowingly providing home health services in an

12  unlicensed assisted living facility or unlicensed adult

13  family-care home, unless the home health agency or employee

14  reports the unlicensed facility or home to the agency within

15  72 hours after providing the services.

16         (d)  Failure to provide at least one of the services

17  listed in s. 400.462(10) directly to patients for a period of

18  6 consecutive months.

19         (3)  The agency may impose the following penalties for

20  operating without a license upon an applicant or owner who has

21  in the past operated, or who currently operates, a licensed

22  home health agency:

23         (a)  If a home health agency that is found to be

24  operating without a license wishes to apply for a license, the

25  home health agency may submit an application only after the

26  agency has verified that the home health agency no longer

27  operates an unlicensed home health agency.

28         (b)  Any person, partnership, or corporation that

29  violates paragraph (a) and that previously operated a licensed

30  home health agency or concurrently operates both a licensed

31  home health agency and an unlicensed home health agency

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  1  commits a felony of the third degree, punishable as provided

  2  in s. 775.082, s. 775.083, or s. 775.084. If an owner has an

  3  interest in more than one home health agency and fails to

  4  license any one of those home health agencies, the agency must

  5  issue a cease and desist order for the activities of the

  6  unlicensed home health agency and impose a moratorium on any

  7  or all of the related licensed home health agencies until the

  8  unlicensed home health agency is licensed.

  9         (c)  If any home health agency meets the criteria in

10  paragraph (a) or paragraph (b) and that home health agency has

11  received any government reimbursement for services provided by

12  an unlicensed home health agency, the agency shall make a

13  fraud referral to the appropriate government reimbursement

14  program.

15         (4)  The agency may deny, revoke, or suspend the

16  license of a home health agency, or may impose on a home

17  health agency administrative fines not to exceed the aggregate

18  sum of $5,000, if:

19         (a)  The agency is unable to obtain entry to the home

20  health agency to conduct a licensure survey, complaint

21  investigation, surveillance visit, or monitoring visit.

22         (b)  An applicant or a licensed home health agency has

23  falsely represented a material fact in its application, or has

24  omitted from the application any material fact, including, but

25  not limited to, the fact that the controlling or ownership

26  interest is held by any officer, director, agent, manager,

27  employee, affiliated person, partner, or shareholder who may

28  not be eligible to participate.

29         (c)  An applicant, owner, or person who has a 5 percent

30  or greater interest in a licensed entity:

31

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  1         1.  Has been previously found by any licensing,

  2  certifying, or professional standards board or agency to have

  3  violated standards or conditions that relate to home

  4  health-related licensure or certification, or to the quality

  5  of home health-related services provided.

  6         2.  Has been or is currently excluded, suspended, or

  7  terminated from, or has involuntarily withdrawn from,

  8  participation in the Medicaid program of this state or any

  9  other state, the Medicare program, or any other governmental

10  health care or health insurance program.

11         Section 5.  Section 400.484, Florida Statutes, is

12  amended to read:

13         400.484  Right of inspection.--

14         (1)  Any duly authorized officer or employee of the

15  agency for Health Care Administration may make such

16  inspections and investigations as are necessary in order to

17  determine the state of compliance with this part and with

18  applicable rules.  The right of inspection extends to any

19  business that the agency for Health Care Administration has

20  reason to believe is being operated as a home health agency

21  without a license, but such inspection of any such business

22  may not be made without the permission of the owner or person

23  in charge unless a warrant is first obtained from a circuit

24  court. Any application for a license issued under this part or

25  for license renewal constitutes permission for an appropriate

26  inspection to verify the information submitted on or in

27  connection with the application.

28         (2)  The agency shall impose fines for various classes

29  of deficiencies in accordance with the following schedule:

30         (a)  A class I deficiency is any act, omission, or

31  practice that results in a patient's death, disablement, or

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  1  permanent injury, or places a patient at imminent risk of

  2  death, disablement, or permanent injury. Upon finding a class

  3  I deficiency, the agency may impose an administrative fine in

  4  the amount of $5,000 for each occurrence and each day that the

  5  deficiency exists. In addition, the agency may immediately

  6  revoke the license, or impose a moratorium on the admission of

  7  new patients, until the factors causing the deficiency have

  8  been corrected.

  9         (b)  A class II deficiency is any act, omission, or

10  practice that has a direct adverse effect on the health,

11  safety, or security of a patient. Upon finding a class II

12  deficiency, the agency may impose an administrative fine in

13  the amount of $1,000 for each occurrence and each day that the

14  deficiency exists. In addition, the agency may suspend the

15  license, or impose a moratorium on the admission of new

16  patients, until the factors causing the deficiency have been

17  corrected.

18         (c)  A class III deficiency is any act, omission, or

19  practice that has an indirect, adverse effect on the health,

20  safety, or security of a patient. Upon finding an uncorrected

21  or repeated class III deficiency, the agency may impose an

22  administrative fine not to exceed $500 for each occurrence and

23  each day that the uncorrected or repeated deficiency exists.

24         (d)  A class IV deficiency is any act, omission, or

25  practice related to required reports, forms, or documents that

26  do not have the potential of negatively affecting patients.

27  These violations are of a type that the agency determines do

28  not threaten the health, safety, or security of patients. Upon

29  finding an uncorrected or repeated class IV deficiency, the

30  agency may impose an administrative fine not to exceed $200

31

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  1  for each occurrence and each day that the uncorrected or

  2  repeated deficiency exists.

  3         Section 6.  Section 400.487, Florida Statutes, is

  4  amended to read:

  5         400.487  Patient assessment; establishment and review

  6  of plan of care; provision of services.--

  7         (1)  The home health agency providing skilled care and

  8  treatment must make an assessment of the patient's needs

  9  within 48 hours after the start of services.

10         (2)  The attending physician for a patient who is to

11  receive skilled receiving care or treatment provided by a

12  licensed nurse or by a physical, occupational, or speech

13  therapist must establish treatment orders a plan of care for

14  the patient on behalf of the home health agency that provides

15  services to the patient.  The original plan of treatment

16  orders must be signed by the physician within 24 days after

17  the start of care and reviewed, at least every 62 days or more

18  frequently if the patient's illness requires, by the physician

19  in consultation with home health agency personnel that provide

20  services to the patient.

21         (3)  If a client is accepted for home health aide

22  services or homemaker or companion services and such services

23  do not require a physician's order, the home health agency

24  shall establish a service provision plan and maintain a record

25  of the services provided.

26         (4)(3)  Each patient or client has the right to be

27  informed of and to participate in the planning of his or her

28  care.  Each patient or client must be provided, upon request,

29  a copy of the plan of care or service provision plan

30  established and maintained for that patient or client by the

31  home health agency.

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  1         (4)  Home health services that are provided to a

  2  patient must be evaluated in the patient's home by a physician

  3  licensed under chapter 458, chapter 459, chapter 460, or

  4  chapter 461 or by a registered nurse licensed under chapter

  5  464 as frequently as necessary to assure safe and adequate

  6  care, but not less frequently than once every 62 days.

  7         (5)  When nursing services are ordered, the home health

  8  agency to which a patient has been admitted for care must

  9  provide the initial admission visit, all service evaluation

10  visits, and the discharge visit by qualified personnel who are

11  on the payroll of, and to whom an Internal Revenue Service

12  payroll form W-2 will be issued by, the home health agency. A

13  home health agency must provide at least one home health

14  service to patients for whom it has agreed to provide care.

15  Services provided by others under contractual arrangements to

16  a home health agency agency's patients must be monitored and

17  managed controlled by the admitting home health agency. The

18  admitting home health agency is fully responsible for ensuring

19  that all care provided through its employees or contract staff

20  is delivered in accordance with this part and applicable

21  rules.

22         (6)  The skilled care services provided by a home

23  health agency, directly or under contract, must be supervised

24  and coordinated in accordance with the plan of care.

25         Section 7.  Section 400.488, Florida Statutes, is

26  created to read:

27         400.488  Assistance with self-administration of

28  medication.--

29         (1)  For purposes of of this section, the term:

30         (a)  "Informed consent" means advising the patient, or

31  the patient's surrogate, guardian, or attorney in fact, that

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  1  the patient may be receiving assistance with

  2  self-administration of medication from an unlicensed person.

  3         (b)  "Unlicensed person" means an individual not

  4  currently licensed to practice nursing or medicine who is

  5  employed by or under contract to a home health agency and who

  6  has received training with respect to assisting with the

  7  self-administration of medication as provided by agency rule.

  8         (2)  Patients who are capable of self-administering

  9  their own medications without assistance shall be encouraged

10  and allowed to do so. However, an unlicensed person may,

11  consistent with a dispensed prescription's label or the

12  package directions of an over-the-counter medication, assist a

13  patient whose condition is medically stable with the

14  self-administration of routine, regularly scheduled

15  medications that are intended to be self-administered.

16  Assistance with self-medication by an unlicensed person may

17  occur only upon a documented request by, and the written

18  informed consent of, a patient or the patient's surrogate,

19  guardian, or attorney in fact. For purposes of this section,

20  self-administered medications include both legend and

21  over-the-counter oral dosage forms, topical dosage forms, and

22  topical opthalmic, otic, and nasal dosage forms, including

23  solutions, suspensions, sprays, and inhalers.

24         (3)  Assistance with self-administration of medication

25  includes:

26         (a)  Taking the medication, in its previously

27  dispensed, properly labeled container, from where it is stored

28  and bringing it to the patient.

29         (b)  In the presence of the patient, reading the label,

30  opening the container, removing a prescribed amount of

31  medication from the container, and closing the container.

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  1         (c)  Placing an oral dosage in the patient's hand or

  2  placing the dosage in another container and helping the

  3  patient by lifting the container to his or her mouth.

  4         (d)  Applying topical medications.

  5         (e)  Returning the medication container to proper

  6  storage.

  7         (f)  Keeping a record of when a patient receives

  8  assistance with self-administration under this section.

  9         (4)  Assistance with self-administration does not

10  include:

11         (a)  Mixing, compounding, converting, or calculating

12  medication doses, except for measuring a prescribed amount of

13  liquid medication or breaking a scored tablet or crushing a

14  tablet as prescribed.

15         (b)  The preparation of syringes for injection or the

16  administration of medications by any injectable route.

17         (c)  Administration of medications through intermittent

18  positive pressure breathing machines or a nebulizer.

19         (d)  Administration of medications by way of a tube

20  inserted in a cavity of the body.

21         (e)  Administration of parenteral preparations.

22         (f)  Irrigations or debriding agents used in the

23  treatment of a skin condition.

24         (g)  Rectal, urethral, or vaginal preparations.

25         (h)  Medications ordered by the physician or health

26  care professional with prescriptive authority to be given "as

27  needed," unless the order is written with specific parameters

28  that preclude independent judgment on the part of the

29  unlicensed person, and at the request of a competent patient.

30         (i)  Medications for which the time of administration,

31  the amount, the strength of dosage, the method of

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  1  administration, or the reason for administration requires

  2  judgment or discretion on the part of the unlicensed person.

  3         (5)  Assistance with the self-administration of

  4  medication by an unlicensed person as described in this

  5  section shall not be considered administration as defined in

  6  s. 465.003.

  7         (6)  The agency may by rule establish procedures and

  8  interpret terms as necessary to implement this section.

  9         Section 8.  Section 400.491, Florida Statutes, 1998

10  Supplement, is amended to read:

11         400.491  Clinical records.--

12         (1)  The home health agency must maintain for each

13  patient who receives skilled care a clinical record that

14  includes the services the home health agency provides directly

15  and those provided through arrangement with another health

16  care provider, except for those services provided by persons

17  referred under s. 400.509.  Such records must contain

18  pertinent past and current medical, nursing, social and other

19  therapeutic information, the plan of treatment orders, and

20  other such information as is necessary for the safe and

21  adequate care of the patient.  When home health services are

22  terminated, the record must show the date and reason for

23  termination.  Such records are considered patient records

24  under s. 455.667, and must be maintained by the home health

25  agency for 5 years following termination of services.  If a

26  patient transfers to another home health agency, a copy of his

27  or her record must be provided to the other home health agency

28  upon request.

29         (2)  The home health agency must maintain for each

30  client who receives nonskilled care a service provision plan.

31

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  1  Such records must be maintained by the home health agency for

  2  1 year following termination of services.

  3         Section 9.  Section 400.497, Florida Statutes, is

  4  amended to read:

  5         400.497  Rules establishing minimum standards.--The

  6  agency for Health Care Administration shall adopt, publish,

  7  and enforce rules to implement this part, including, as

  8  applicable, ss. 400.506 and 400.509, which must provide

  9  reasonable and fair minimum standards relating to:

10         (1)  Scope of home health services to be provided.

11         (1)(2)  The qualifications, and minimum training

12  requirements, and supervision requirements of all home health

13  agency personnel. The agency shall establish the curriculum

14  and instructor qualifications for home health aide training.

15  Licensed home health agencies may provide this training and

16  shall furnish documentation of such training to other licensed

17  home health agencies upon request. The agency shall allow

18  shared staffing if the home health agency is part of a

19  retirement community that provides multiple levels of care, is

20  located on one campus, is licensed under this chapter, and

21  otherwise meets the requirements of law and rule.

22         (2)(3)  Requirements for prospective employees.

23  Procedures for maintaining a record of the employment history

24  of all home health agency personnel.  A home health agency

25  must require prospective employees and contractors its

26  personnel to submit an employment or contractual history to

27  the home health agency, and it must verify the employment or

28  contractual history unless through diligent efforts such

29  verification is not possible.  The agency for Health Care

30  Administration shall prescribe by rule the minimum

31  requirements for establishing that diligent efforts have been

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  1  made.  The administrator of a home health agency must review

  2  the employment history and references of home health agency

  3  personnel and applicants for employment.  The Agency for

  4  Health Care Administration must review the employment history

  5  and references of each administrator of a home health agency.

  6  There is no monetary liability on the part of, and no cause of

  7  action for damages arising arises against, a former employer

  8  of a prospective employee of or prospective independent

  9  contractor with a licensed home health agency who reasonably

10  and in good faith communicates his or her honest opinions

11  about the former employee's job performance. This subsection

12  does not affect the official immunity of an officer or

13  employee of a public corporation.

14         (3)(4)  Licensure application and renewal.

15         (4)(5)  The administration of the home health agency,

16  including a requirement for onsite and electronic

17  accessibility of supervisory personnel.

18         (5)(6)  Procedures for administering drugs and

19  biologicals.

20         (6)(7)  Procedures for maintaining patients' patient

21  records.

22         (7)(8)  Ensuring that the home health services provided

23  by a home health agency are provided in accordance with the

24  plan of treatment orders established for each patient for whom

25  physician orders are required.

26         (8)(9)  Geographic service areas.

27         (9)(10)  Standards for contractual arrangements for the

28  provision of home health services by providers not employed by

29  the home health agency, to which the patient has been admitted

30  providing for the patient's care and treatment.

31

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  1         Section 10.  Subsections (1), (10), and (13) of section

  2  400.506, Florida Statutes, 1998 Supplement, are amended to

  3  read:

  4         400.506  Licensure of nurse registries; requirements;

  5  penalties.--

  6         (1)  A nurse registry is exempt from the licensing

  7  requirements of a home health agency, but must be licensed as

  8  a nurse registry. Each operational site of the nurse registry

  9  must be licensed, unless there is more than one site within a

10  county. If there is more than one site within a county, only

11  one license per county shall be required. Each operational

12  site shall be listed on the license.

13         (10)(a)  A nurse registry may refer for contract in

14  private residences registered nurses and licensed practical

15  nurses registered and licensed under chapter 464, certified

16  nursing assistants certified under s. 400.211, home health

17  aides who present documented proof of successful completion of

18  the training required by rule of the agency, and sitters,

19  companions, or homemakers for the purposes of providing those

20  services authorized under s. 400.509(1). Each person referred

21  by a nurse registry must provide current documentation that he

22  or she is free from communicable diseases.

23         (b)  A certified nursing assistant or home health aide

24  may be referred for a contract to provide care to a patient in

25  his or her home only if that patient is under a physician's

26  care.  A certified nursing assistant or home health aide

27  referred for contract in a private residence shall be limited

28  to assisting a patient with bathing, dressing, toileting,

29  grooming, eating, physical transfer, and those normal daily

30  routines the patient could perform for himself or herself were

31  he or she physically capable.  A certified nursing assistant

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  1  or home health aide may not provide medical or other health

  2  care services that require specialized training and that may

  3  be performed only by licensed health care professionals.  The

  4  nurse registry shall obtain the name and address of the

  5  attending physician and send written notification to the

  6  physician within 48 hours after a contract is concluded that a

  7  certified nursing assistant or home health aide will be

  8  providing care for that patient.

  9         (c)  A registered nurse shall make monthly visits to

10  the patient's home to assess the patient's condition and the

11  quality of care being provided by the certified nursing

12  assistant or home health aide.  Any condition which in the

13  professional judgment of the nurse requires further medical

14  attention shall be reported to the attending physician and the

15  nurse registry.  The assessment shall become a part of the

16  patient's file with the nurse registry and may be reviewed by

17  the agency for Health Care Administration during its their

18  survey procedure.

19         (d)  In order to refer for contract in private

20  residences a certified nursing assistant or any person

21  specified in s. 400.509(1), the nurse registry and such person

22  registered with the nurse registry must also be registered

23  under s. 400.509.  Any person registered as an independent

24  contractor with a nurse registry for the purpose of providing

25  services authorized under s. 400.509(1) on or before October

26  1, 1990, is exempt from registration under s. 400.509 so long

27  as such person remains continuously registered with that nurse

28  registry.

29         (13)  Each nurse registry must comply with the

30  procedures set forth in s. 400.497(2) regarding (3) for

31  maintaining records of the employment or contractual history

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  1  of all persons referred for contract and is subject to the

  2  standards and conditions set forth in s. 400.512. However, an

  3  initial screening may not be required for persons who have

  4  been continuously registered with the nurse registry since

  5  September 30, 1990.

  6         Section 11.  Present subsections (1) through (6) of

  7  section 400.509, Florida Statutes, are amended, present

  8  subsections (4) through (13) are renumbered as subsections (5)

  9  through (14), respectively, and a new subsection (4) is added

10  to said section, to read:

11         400.509  Registration of particular service providers

12  exempt from licensure; certificate of registration; regulation

13  of registrants.--

14         (1)  Any organization person that provides domestic

15  maid services, sitter services, companion services, or

16  homemaker services and does not provide a home health services

17  service to a person is exempt from licensure under this part.

18  However, any organization person that provides sitter services

19  for adults, companion services, or homemaker services must

20  register with the agency for Health Care Administration.

21         (2)  Registration consists of annually filing with the

22  agency for Health Care Administration, under oath, on forms

23  provided by it, the following information:

24         (a)  The name, address, date of birth, and social

25  security number of the individual, or the name and address of

26  the person, providing the service.

27         (a)(b)  If the registrant is a firm or partnership, the

28  name, address, date of birth, and social security number of

29  every member.

30         (b)(c)  If the registrant is a corporation or

31  association, its name and address, the name, address, date of

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  1  birth, and social security number of each of its directors and

  2  officers, and the name and address of each person having at

  3  least a 5-percent 10-percent interest in the corporation or

  4  association.

  5         (c)(d)  The name, address, date of birth, and social

  6  security number of each person employed by, or under contract

  7  with, the organization.

  8         (3)  The agency for Health Care Administration shall

  9  charge a registration fee of $25 to be submitted with the

10  information required under subsection (2).

11         (4)  Each applicant for registration must comply with

12  the following requirements:

13         (a)  Upon receipt of a completed, signed, and dated

14  application, the agency shall require background screening, in

15  accordance with the level 1 standards for screening as set

16  forth in chapter 435, of every individual who will have

17  contact with a client. The agency shall require background

18  screening of the managing employee, or other similarly titled

19  individual who is responsible for the operation of the entity,

20  and of the financial officer, or other similarly titled

21  individual who is responsible for the financial operation of

22  the entity, including billings for client services, in

23  accordance with the level 2 standards for background screening

24  as set forth in chapter 435.

25         (b)  The agency may require background screening of any

26  other individual who is affiliated with the applicant if the

27  agency has a reasonable basis for believing that he or she has

28  been convicted of a crime or has committed any other offense

29  prohibited under the level 2 standards for screening as set

30  forth in chapter 435.

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  1         (c)  Proof of compliance with the level 2 background

  2  screening requirements of chapter 435 which has been submitted

  3  within the previous 5 years in compliance with any other

  4  health care or assisted living licensure requirements of this

  5  state is acceptable in fulfillment of paragraph (a).

  6         (d)  A provisional registration may be granted to an

  7  applicant when each individual required by this section to

  8  undergo background screening has met the standards for the

  9  abuse registry background check and the Department of Law

10  Enforcement background check, but the agency has not yet

11  received background screening results from the Federal Bureau

12  of Investigation. A standard registration may be granted to

13  the applicant upon the agency's receipt of a report of the

14  results of the Florida Bureau of Investigation background

15  screening for each individual required by this section to

16  undergo background screening, which report confirms that all

17  standards have been met, or upon the granting of an exemption

18  from disqualification by the agency as set forth in chapter

19  435. Any other person who is required to undergo level 2

20  background screening may serve in his or her capacity pending

21  the agency's receipt of the report from the Federal Bureau of

22  Investigation.  However, the person may not continue to serve

23  if the report indicates any violation of background screening

24  standards and an exemption from disqualification has not been

25  requested of and granted by the agency as set forth in chapter

26  435.

27         (e)  Each applicant must submit to the agency, with its

28  application, a description and explanation of any exclusions,

29  permanent suspensions, or terminations of the applicant from

30  the Medicare or Medicaid programs.  Proof of compliance with

31  the requirements for disclosure of ownership and controlling

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  1  interests under the Medicaid or Medicare programs may be

  2  accepted in lieu of this submission.

  3         (f)  Each applicant must submit to the agency a

  4  description and explanation of any conviction of an offense

  5  prohibited under the level 2 standards of chapter 435 by a

  6  member of the board of directors of the applicant, its

  7  officers, or any individual owning 5 percent or more of the

  8  applicant. This requirement does not apply to a director of a

  9  not-for-profit corporation or organization if the director

10  serves solely in a voluntary capacity for the corporation or

11  organization, does not regularly take part in the day-to-day

12  operational decisions of the corporation or organization,

13  receives no remuneration for his or her services on the

14  corporation or organization's board of directors, and has no

15  financial interest and has no family members with a financial

16  interest in the corporation or organization, provided that the

17  director and the not-for-profit corporation or organization

18  include in the application a statement affirming that the

19  director's relationship to the corporation satisfies the

20  requirements of this paragraph.

21         (g)  A registration may not be granted to an applicant

22  if the applicant or managing employee has been found guilty

23  of, regardless of adjudication, or has entered a plea of nolo

24  contendere or guilty to, any offense prohibited under the

25  level 2 standards for screening as set forth in chapter 435,

26  unless an exemption from disqualification has been granted by

27  the agency as set forth in chapter 435.

28         (h)  The agency may deny or revoke the registration if

29  any applicant:

30         1.  Has falsely represented a material fact in the

31  application required by paragraph (e) or paragraph (f), or has

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  1  omitted any material fact from the application required by

  2  paragraph (e) or paragraph (f); or

  3         2.  Has had prior action taken against the applicant

  4  under the Medicare or Medicaid programs as set forth in

  5  paragraph (e).

  6         (i)  An application for licensure renewal must contain

  7  the information required under paragraphs (e) and (f).

  8         (5)(4)  Each registrant must obtain establish the

  9  employment or contractual history of persons employed by, or

10  under contract with the organization who will have having

11  contact at any time with clients patients in their homes by:

12         (a)  Requiring such persons employed or under contract

13  to submit an employment or contractual history to the

14  registrant; and

15         (b)  Verifying the employment or contractual history,

16  unless through diligent efforts such verification is not

17  possible.  The agency for Health Care Administration shall

18  prescribe by rule the minimum requirements for establishing

19  that diligent efforts have been made.

20

21  There is no monetary liability on the part of, and no cause of

22  action for damages arises against, a former employer of a

23  prospective employee of or prospective independent contractor

24  with a registrant who reasonably and in good faith

25  communicates his or her honest opinions about the former

26  employee's or contractor's job performance.  This subsection

27  does not affect the official immunity of an officer or

28  employee of a public corporation.

29         (6)(5)  On or before the first day on which services

30  are provided to a client patient, any registrant under this

31  part must inform the client patient and his or her immediate

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  1  family, if appropriate, of the right to report abusive,

  2  neglectful, or exploitative practices.  The statewide

  3  toll-free telephone number for the central abuse registry must

  4  be provided to clients patients in a manner that is clearly

  5  legible and must include the words: "To report abuse, neglect,

  6  or exploitation, please call toll-free ...(phone number)...."

  7  Registrants must establish appropriate policies and procedures

  8  for providing such notice to clients patients.

  9         (7)(6)  The provisions of s. 400.512 regarding

10  screening apply to any person or business entity registered

11  under this section on or after October 1, 1994 1989.

12         Section 12.  Section 400.512, Florida Statutes, is

13  amended to read:

14         400.512  Screening of home health agency personnel;

15  nurse registry personnel; and sitters, companions, and

16  homemakers.--The agency for Health Care Administration shall

17  require employment or contractor screening as provided in

18  chapter 435, using the level 1 standards for screening set

19  forth in that chapter, for home health agency personnel;

20  persons referred for employment by nurse registries; and

21  persons employed by sitter, companion, or homemaker services

22  registered under s. 400.509.

23         (1)  The agency for Health Care Administration may

24  grant exemptions from disqualification from employment or

25  contracting under this section as provided in s. 435.07.

26         (2)  The administrator of each home health agency, the

27  managing employee of each nurse registry, and the managing

28  employee of each or sitter, companion, or homemaker service

29  registered under s. 400.509 must sign an affidavit annually,

30  under penalty of perjury, stating that all personnel hired,

31  contracted with, or registered, on or after October 1, 1994

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  1  1989, who enter the home of a patient or client in the

  2  capacity of their service capacity employment have been

  3  screened and that its remaining personnel have worked for the

  4  home health agency or registrant continuously since before

  5  October 1, 1994 1989.

  6         (3)  As a prerequisite to operating as a home health

  7  agency, nurse registry, or sitter, companion, or homemaker

  8  service under s. 400.509, the administrator or managing

  9  employee, respectively, must submit to the agency his or her

10  for Health Care Administration their name and any other

11  information necessary to conduct a complete screening

12  according to this section.  The agency for Health Care

13  Administration shall submit the information to the Department

14  of Law Enforcement and the department's abuse hotline for

15  state processing.  The agency for Health Care Administration

16  shall review the record of the administrator or manager with

17  respect to the offenses specified in this section and shall

18  notify the owner of its findings.  If disposition information

19  is missing on a criminal record, the administrator or manager,

20  upon request of the agency for Health Care Administration,

21  must obtain and supply within 30 days the missing disposition

22  information to the agency for Health Care Administration.

23  Failure to supply missing information within 30 days or to

24  show reasonable efforts to obtain such information will result

25  in automatic disqualification.

26         (4)  Proof of compliance with the screening

27  requirements of chapter 435 shall be accepted in lieu of the

28  requirements of this section if the provided that such person

29  has been continuously employed or registered without a breach

30  in service that exceeds 180 days, the proof of compliance is

31  not more than 2 years old, and the person has been screened

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  1  through the department's central abuse registry and tracking

  2  system and by the Department of Law Enforcement. A home health

  3  agency, nurse registry, or companion or homemaker service

  4  registered under s. 400.509 shall directly provide proof of

  5  compliance to another home health agency, nurse registry, or

  6  companion or homemaker service registered under s. 400.509.

  7  The recipient home health agency, nurse registry, or companion

  8  or homemaker service registered under s. 400.509 may not

  9  accept any proof of compliance directly from the person who

10  requires screening. Proof of compliance with the screening

11  requirements of this section shall be provided upon request to

12  the person screened by the home health agencies,; nurse

13  registries,; or sitter, companion, or homemaker services

14  registered under s. 400.509.

15         (5)  There is no monetary liability on the part of, and

16  no cause of action for damages arising arises against, a

17  licensed home health agency, licensed nurse registry, or

18  sitter, companion, or homemaker service registered under s.

19  400.509, that, upon notice of a confirmed report of adult

20  abuse, neglect, or exploitation under paragraph (2)(b),

21  terminates the employee or contractor against whom the report

22  was issued, whether or not the employee or contractor has

23  filed for an exemption with the agency in accordance with

24  chapter 435 for Health Care Administration under subparagraph

25  (3)(a)5. and whether or not the time for filing has expired.

26         (6)  The costs of processing the statewide

27  correspondence criminal records checks and the search of the

28  department's central abuse hotline must be borne by the home

29  health agency,; the nurse registry,; or sitter, companion, or

30  homemaker service registered under s. 400.509, or by the

31

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  1  person being screened, at the discretion of the home health

  2  agency, nurse registry, or s. 400.509 registrant.

  3         (7)  The Agency for Health Care Administration; the

  4  home health agency; nurse registry; or sitter, companion, or

  5  homemaker service registered under s. 400.509 may not use the

  6  criminal records, juvenile records, or central abuse hotline

  7  information of a person for any purpose other than determining

  8  whether that person meets minimum standards of good moral

  9  character for home health agency personnel.  The criminal

10  records, juvenile records, or central abuse hotline

11  information obtained by the Agency for Health Care

12  Administration; home health agency; nurse registry; or sitter,

13  companion, or homemaker service for determining the moral

14  character of such personnel are confidential and exempt from

15  the provisions of s. 119.07(1) and s. 24(a), Art. I of the

16  State Constitution.

17         (7)(8)(a)  It is a misdemeanor of the first degree,

18  punishable under s. 775.082 or s. 775.083, for any person

19  willfully, knowingly, or intentionally to:

20         1.  Fail, by false statement, misrepresentation,

21  impersonation, or other fraudulent means, to disclose in any

22  application for voluntary or paid employment a material fact

23  used in making a determination as to such person's

24  qualifications to be an employee under this section;

25         2.  Operate or attempt to operate an entity licensed or

26  registered under this part with persons who do not meet the

27  minimum standards for good moral character as contained in

28  this section; or

29         3.  Use information from the criminal records or

30  central abuse hotline obtained under this section for any

31  purpose other than screening that person for employment as

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  1  specified in this section or release such information to any

  2  other person for any purpose other than screening for

  3  employment under this section.

  4         (b)  It is a felony of the third degree, punishable

  5  under s. 775.082, s. 775.083, or s. 775.084, for any person

  6  willfully, knowingly, or intentionally to use information from

  7  the juvenile records of a person obtained under this section

  8  for any purpose other than screening for employment under this

  9  section.

10         Section 13.  Subsection (9) of section 408.032, Florida

11  Statutes, is amended to read:

12         408.032  Definitions.--As used in ss. 408.031-408.045,

13  the term:

14         (9)  "Home health agency" means an organization, as

15  defined in s. 400.462(8)(4), that is certified or seeks

16  certification as a Medicare home health service provider.

17         Section 14.  Task Force on Home Health Services

18  Licensure.--There is hereby created a task force composed of

19  representatives of the Agency for Health Care Administration,

20  the Department of Elderly Affairs, the Department of Health,

21  Private Care Association of Florida, and Associated Home

22  Health Industries to review the provisions of part IV of

23  chapter 400, Florida Statutes, and recommend additional

24  legislative revisions to said part. The review shall

25  encompass, at a minimum, the following issues: whether adult

26  abuse registry screening should continue to be mandated;

27  whether individuals who provide home health services should be

28  exempted from all state regulatory oversight; and whether

29  mandatory registration for organizations that provide

30  companion and homemaker services should continue. The task

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  1  force shall submit a report to the appropriate legislative

  2  committees no later than December 31, 1999.

  3         Section 15.  This act shall take effect October 1,

  4  1999.

  5

  6            *****************************************

  7                          HOUSE SUMMARY

  8
      Revises provisions relating to the regulation of home
  9    health agencies. Revises definitions and requirements for
      licensure, renewal, exemptions from licensure, and
10    insurance coverage. Revises grounds for disciplinary
      action. Provides penalties for operating without a
11    license. Provides grounds for denial, suspension, or
      revocation of a license or imposition of an
12    administrative fine for violations relating to licensure.
      Establishes administrative fines for various classes of
13    deficiencies relating to operation of a home health
      agency. Revises provisions relating to patient
14    assessment, plan of care, and provision of services.
      Provides for treatment orders and service provision
15    plans. Establishes requirements and procedures for
      assistance with self-administration of medication, and
16    authorizes rules of the Agency for Health Care
      Administration therefor. Revises the agency's authority
17    to adopt rules relating to minimum standards. Revises
      requirements for licensure of nurse registries and
18    provides for referral of home health aides by the
      registries. Revises registration requirements for
19    companion and homemaker services, provides for background
      screening of persons providing such services, and removes
20    references to domestic maid and sitter services. Revises
      background screening requirements for home health agency
21    personnel, and includes screening of contractors.
      Establishes a Task Force on Home Health Services
22    Licensure. Requires a report to the Legislature.

23

24

25

26

27

28

29

30

31

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