House Bill 2031
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Florida House of Representatives - 1999 HB 2031
By Representative Sobel
1 A bill to be entitled
2 An act relating to health care; creating part
3 XV of chapter 468, F.S.; providing definitions;
4 requiring the Department of Health to maintain,
5 or contract with or approve another entity to
6 maintain, a state registry of certified nursing
7 assistants; authorizing the department to
8 contract with or approve another entity to
9 provide examination services for certification
10 of nursing assistants; providing requirements
11 for obtaining certification as a certified
12 nursing assistant; providing for initial
13 certification; requiring maintenance of current
14 address with the department; specifying grounds
15 for disciplinary action; providing penalties;
16 authorizing the department to exempt an
17 applicant or certificateholder from
18 disqualification from certification or
19 employment; providing for access to records and
20 meetings held for disciplinary actions;
21 exempting an employer from liability for
22 terminating a certified nursing assistant under
23 certain circumstances; providing penalties for
24 failure to disclose a material fact under
25 certain circumstances; providing for access to
26 background screening information; preserving
27 confidentiality; providing rulemaking
28 authority; requiring persons who employ
29 certified nursing assistants to report certain
30 information to the department; requiring the
31 department to update the certified nursing
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1 assistant registry; providing for assignment to
2 inactive certification under certain
3 circumstances; providing for future repeal of
4 such reporting, updating, and assignment
5 provisions; amending ss. 20.43, 400.211,
6 400.4255, 400.462, 400.506, and 455.667, F.S.,
7 relating to the department, persons employed as
8 nursing assistants, the use of licensed
9 personnel in assisted living facilities, the
10 regulation of home health agencies, nurse
11 registries, and the ownership and control of
12 patient records; deleting existing provisions
13 relating to certification of nursing assistants
14 and revising cross references, to conform to
15 changes made by the act; providing for
16 immunization of patients and employees of
17 nursing homes against influenza and pneumonia;
18 requiring informed written consent; providing
19 exemptions; providing for reimbursement for the
20 cost of such immunizations; authorizing
21 additional positions for the department;
22 providing an effective date.
23
24 Be It Enacted by the Legislature of the State of Florida:
25
26 Section 1. Part XV of chapter 468, Florida Statutes,
27 consisting of sections 468.821, 468.822, 468.823, 468.824,
28 468.825, 468.826, 468.827, 468.828, and 468.829, Florida
29 Statutes, is created to read:
30 468.821 Definitions.--As used in this part, the term:
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1 (1) "Approved training program" means a course of
2 training conducted by a public sector or private sector
3 educational center licensed by the Department of Education to
4 implement the basic curriculum for nursing assistants which is
5 approved by the Department of Education.
6 (2) "Certified nursing assistant" means a person who
7 meets the qualifications specified in this part and who is
8 certified by the department as a certified nursing assistant.
9 (3) "Department" means the Department of Health.
10 (4) "Registry" means the listing of certified nursing
11 assistants maintained by the department.
12 468.822 Duties and powers of the department.--
13 (1) The department shall maintain, or contract with or
14 approve another entity to maintain, a state registry of
15 certified nursing assistants. The registry shall consist of
16 the name of each certified nursing assistant in this state,
17 other identifying information defined by department rule,
18 certification status, the effective date of certification,
19 other information required by state or federal law,
20 information regarding any crime or any abuse, neglect, or
21 exploitation as provided under chapter 435, and any
22 disciplinary action taken against the certified nursing
23 assistant. The registry shall be accessible to the public, the
24 certificateholder, employers, and other state agencies.
25 (2) The department shall adopt by rule testing
26 procedures for use in certifying nursing assistants and shall
27 adopt rules regulating the practice of certified nursing
28 assistants to enforce this part. The department may contract
29 with or approve another entity or organization to provide the
30 examination services, including the development and
31 administration of examinations.
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1 (3) A provider shall pay all reasonable costs and
2 expenses incurred by the department in evaluating the
3 provider's application and performance during the delivery of
4 services, including examination services and procedures for
5 maintaining the certified nursing assistant registry, as
6 applicable.
7 468.823 Certified nursing assistants; certification
8 requirement.--
9 (1) The department shall issue a certificate to
10 practice as a certified nursing assistant to any person who
11 demonstrates a minimum competency to read and write and meets
12 one of the following requirements:
13 (a) Has successfully completed an approved training
14 program and achieved a minimum score, established by rule of
15 the department, on the nursing assistant competency
16 examination, which consists of a written portion and
17 skills-demonstration portion, approved by the department and
18 administered at a site and by personnel approved by the
19 department.
20 (b) Has achieved a minimum score, established by rule
21 of the department, on the nursing assistant competency
22 examination, which consists of a written portion and
23 skills-demonstration portion, approved by the department and
24 administered at a site and by personnel approved by the
25 department and:
26 1. Has a high school diploma, or its equivalent; or
27 2. Is at least 18 years of age.
28 (c) Is currently certified in another state, is listed
29 on that state's certified nursing assistant registry, has not
30 been found to have committed abuse, neglect, or exploitation
31 in that state, and has successfully completed a national
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1 nursing assistant evaluation in order to receive certification
2 in that state.
3 (2) If an applicant fails to pass the nursing
4 assistant competency examination in three attempts, the
5 applicant is not eligible for reexamination unless the
6 applicant completes an approved training program.
7 (3) An oral examination shall be administered as a
8 substitute for the written portion of the examination upon
9 request. The oral examination shall be administered at a site
10 and by personnel approved by the department.
11 (4) The department shall adopt rules to provide for
12 the initial certification of certified nursing assistants.
13 (5) A certified nursing assistant shall maintain a
14 current address with the department in accordance with s.
15 455.717.
16 468.824 Denial, suspension, or revocation of
17 certification; disciplinary actions; letter of exemption.--
18 (1) The following acts constitute grounds for which
19 the department may impose disciplinary sanctions as specified
20 in subsection (2):
21 (a) Obtaining or attempting to obtain an exemption
22 from disqualification from certification or employment, or
23 possessing or attempting to possess a letter of exemption from
24 disqualification from certification or employment, by bribery,
25 misrepresentation, deceit, or through an error of the
26 department.
27 (b) Intentionally violating any provision of this
28 part, chapter 455, or the rules adopted by the department.
29 (2) When the department finds any person guilty of any
30 of the grounds set forth in subsection (1), it may enter an
31 order imposing one or more of the following penalties:
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1 (a) Denial, suspension, or revocation of
2 certification.
3 (b) Imposition of an administrative fine not to exceed
4 $150 for each count or separate offense.
5 (c) Imposition of probation or restriction of
6 certification, including conditions such as retraining,
7 compliance with an approved treatment program for impaired
8 practitioners, or other corrective action.
9 (3) The department may, upon the request of a
10 certificateholder, exempt the certificateholder from
11 disqualification of certification or disqualification of
12 employment in accordance with chapter 435 and issue a letter
13 of exemption. After January 1, 2000, the department must
14 notify an applicant seeking an exemption from disqualification
15 from certification or employment of its decision to approve or
16 deny the request within 30 days after the date the department
17 receives all required documentation.
18 468.825 Availability of disciplinary records and
19 proceedings.--Pursuant to s. 455.621, any complaint or record
20 maintained by the department pursuant to the discipline of a
21 certified nursing assistant and any proceeding held by the
22 department to discipline a certified nursing assistant shall
23 remain open and available to the public.
24 468.826 Exemption from liability.--If an employer
25 terminates or denies employment to a certified nursing
26 assistant whose certification is inactive as shown on the
27 certified nursing assistant registry or whose name appears on
28 the central abuse registry and tracking system of the
29 Department of Children and Family Services or on a criminal
30 screening report of the Department of Law Enforcement, the
31 employer is not civilly liable for such termination and a
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1 cause of action may not be brought against the employer for
2 damages, regardless of whether the employee has filed for an
3 exemption from the department under s. 468.824(3). There may
4 not be any monetary liability on the part of, and a cause of
5 action for damages may not arise against, any licensed
6 facility, its governing board or members thereof, medical
7 staff, disciplinary board, agents, investigators, witnesses,
8 employees, or any other person for any action taken in good
9 faith without intentional fraud in carrying out this section.
10 468.827 Failure to disclose a material fact;
11 penalties.--It is a misdemeanor of the first degree,
12 punishable as provided in s. 775.082 or s. 775.083, for any
13 person knowingly or intentionally to fail to disclose, by
14 false statement, misrepresentation, impersonation, or other
15 fraudulent means, in any application for voluntary or paid
16 employment or certification regulated under this part, a
17 material fact used in making a determination as to such
18 person's qualifications to be an employee or
19 certificateholder.
20 468.828 Background screening information; rulemaking
21 authority.--
22 (1) The Agency for Health Care Administration shall
23 allow the department to electronically access its background
24 screening database and records, and the Department of Children
25 and Family Services shall allow the department to
26 electronically access its central abuse registry and tracking
27 system under chapter 415.
28 (2) An employer, or an agent thereof, may not use
29 criminal records, juvenile records, or information obtained
30 from the central abuse hotline under chapter 415 for any
31 purpose other than determining if the person meets the
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1 requirements of this part. Such records and information
2 obtained by the department shall remain confidential and
3 exempt from s. 119.07(1) as provided in s. 435.09.
4 (3) If the requirements of the Omnibus Budget
5 Reconciliation Act of 1987, as amended, for the certification
6 of nursing assistants are in conflict with this part, the
7 federal requirements shall prevail for those facilities
8 certified to provide care under Title XVIII (Medicare) or
9 Title XIX (Medicaid) of the Social Security Act.
10 (4) The department has authority to adopt rules
11 pursuant to ss. 120.536(1) and 120.54 to implement the
12 provisions of this part.
13 468.829 Employer reports; update of registry;
14 assignment to inactive certification.--
15 (1) By October 1, 1999, and by October 1 of every year
16 thereafter, each employer of certified nursing assistants
17 shall submit to the department a list of the names and social
18 security numbers of each person employed by the employer as a
19 certified nursing assistant in a nursing-related occupation
20 for a minimum of 8 hours for monetary compensation during the
21 preceding 24 months. Employers may submit such information
22 electronically through the department's Internet site.
23 (2) The department shall update the certified nursing
24 assistant registry upon receipt of the lists of certified
25 nursing assistants and shall complete the first of such
26 updates by December 31, 1999.
27 (3) Each certified nursing assistant whose name is not
28 reported to the department under subsection (1) on October 1,
29 1999, shall be assigned an inactive certification on January
30 1, 2000. A certified nursing assistant may reactivate an
31 inactive certification by submitting documentation to the
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1 department that he or she was employed for a minimum of 8
2 hours for monetary compensation as a certified nursing
3 assistant in a nursing-related occupation during the preceding
4 24 months.
5 (4) This section is repealed October 2, 2001.
6 Section 2. Paragraph (g) of subsection (3) of section
7 20.43, Florida Statutes, 1998 Supplement, is amended to read:
8 20.43 Department of Health.--There is created a
9 Department of Health.
10 (3) The following divisions of the Department of
11 Health are established:
12 (g) Division of Medical Quality Assurance, which is
13 responsible for the following boards and professions
14 established within the division:
15 1. Nursing assistants, as provided under part XV of
16 chapter 468 s. 400.211.
17 2. Health care services pools, as provided under s.
18 402.48.
19 3. The Board of Acupuncture, created under chapter
20 457.
21 4. The Board of Medicine, created under chapter 458.
22 5. The Board of Osteopathic Medicine, created under
23 chapter 459.
24 6. The Board of Chiropractic Medicine, created under
25 chapter 460.
26 7. The Board of Podiatric Medicine, created under
27 chapter 461.
28 8. Naturopathy, as provided under chapter 462.
29 9. The Board of Optometry, created under chapter 463.
30 10. The Board of Nursing, created under chapter 464.
31 11. The Board of Pharmacy, created under chapter 465.
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1 12. The Board of Dentistry, created under chapter 466.
2 13. Midwifery, as provided under chapter 467.
3 14. The Board of Speech-Language Pathology and
4 Audiology, created under part I of chapter 468.
5 15. The Board of Nursing Home Administrators, created
6 under part II of chapter 468.
7 16. The Board of Occupational Therapy, created under
8 part III of chapter 468.
9 17. Respiratory therapy, as provided under part V of
10 chapter 468.
11 18. Dietetics and nutrition practice, as provided
12 under part X of chapter 468.
13 19. Athletic trainers, as provided under part XIII of
14 chapter 468.
15 20. The Board of Orthotists and Prosthetists, created
16 under part XIV of chapter 468.
17 21. Electrolysis, as provided under chapter 478.
18 22. The Board of Massage Therapy, created under
19 chapter 480.
20 23. The Board of Clinical Laboratory Personnel,
21 created under part III of chapter 483.
22 24. Medical physicists, as provided under part IV of
23 chapter 483.
24 25. The Board of Opticianry, created under part I of
25 chapter 484.
26 26. The Board of Hearing Aid Specialists, created
27 under part II of chapter 484.
28 27. The Board of Physical Therapy Practice, created
29 under chapter 486.
30 28. The Board of Psychology, created under chapter
31 490.
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1 29. School psychologists, as provided under chapter
2 490.
3 30. The Board of Clinical Social Work, Marriage and
4 Family Therapy, and Mental Health Counseling, created under
5 chapter 491.
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7 The department may contract with the Agency for Health Care
8 Administration who shall provide consumer complaint,
9 investigative, and prosecutorial services required by the
10 Division of Medical Quality Assurance, councils, or boards, as
11 appropriate.
12 Section 3. Section 400.211, Florida Statutes, 1998
13 Supplement, is amended to read:
14 400.211 Persons employed as nursing assistants;
15 certification requirement.--
16 (1) A person must be certified under part XV of
17 chapter 468 pursuant to this section, except a registered
18 nurse or practical nurse licensed in accordance with the
19 provisions of chapter 464 or an applicant for such licensure
20 who is permitted to practice nursing in accordance with rules
21 adopted promulgated by the Board of Nursing pursuant to
22 chapter 464, to serve as a nursing assistant in any nursing
23 home. The Department of Health shall issue a certificate to
24 any person who:
25 (a) Has successfully completed a nursing assistant
26 program in a state-approved school and has achieved a minimum
27 score of 75 percent on the written portion of the Florida
28 Nursing Assistant Certification Test approved by the
29 Department of Health and administered by state-approved test
30 site personnel;
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1 (b) Has achieved a minimum score of 75 percent on the
2 written and performance portions of the Florida Nursing
3 Assistant Certification Test approved by the Department of
4 Health and administered by state-approved test site personnel;
5 or
6 (c) Is currently certified in another state, is on
7 that state's registry, has no findings of abuse, and has
8 achieved a minimum score of 75 percent on the written portion
9 of the Florida Nursing Assistant Certification Test approved
10 by the Department of Health and administered by state-approved
11 test site personnel.
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13 An oral examination shall be administered upon request.
14 (2) The agency may deny, suspend, or revoke the
15 certification of any person to serve as a nursing assistant,
16 based upon written notification from a court of competent
17 jurisdiction, law enforcement agency, or administrative agency
18 of any finding of guilt of, regardless of adjudication, or a
19 plea of nolo contendere or guilty to, any offense set forth in
20 the level 1 screening standards of chapter 435 or any
21 confirmed report of abuse of a vulnerable adult.
22 (2)(3) The following categories of persons who are not
23 certified as nursing assistants under part XV of chapter 468
24 this part may be employed by a nursing facility for a period
25 of 4 months:
26 (a) Persons who are enrolled in a state-approved
27 nursing assistant program; or
28 (b) Persons who have been positively verified by the
29 department a state-approved test site as certified and on the
30 registry in another state with no findings of abuse, but who
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1 have not completed the written examination required under s.
2 468.823 this section.
3
4 The certification requirement must be met within 4 months
5 after of initial employment as a nursing assistant in a
6 licensed nursing facility.
7 (4) A person certified under this section on or after
8 September 30, 1990, who has not worked for pay as a nursing
9 assistant in a nursing-related occupation for a period of time
10 during a consecutive 24-month period must be recertified under
11 this section to be eligible to work in a nursing facility.
12 (3)(5) Nursing homes shall require persons seeking
13 employment as a certified nursing assistant to submit an
14 employment history to the facility. The facility shall verify
15 the employment history unless, through diligent efforts, such
16 verification is not possible. There shall be no monetary
17 liability on the part of, and no cause of action for damages
18 shall arise against, a former employer who reasonably and in
19 good faith communicates his or her honest opinion about a
20 former employee's job performance.
21 (6) If the requirements pursuant to the Omnibus Budget
22 Reconciliation Act of 1987, as amended, for the certification
23 of nursing assistants are in conflict with this section, the
24 federal requirements shall prevail for those facilities
25 certified to provide care under Title XVIII (Medicare) or
26 Title XIX (Medicaid) of the Social Security Act.
27 (7) The Department of Health may adopt such rules as
28 are necessary to carry out this section.
29 Section 4. Paragraph (a) of subsection (1) and
30 subsection (2) of section 400.4255, Florida Statutes, are
31 amended to read:
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1 400.4255 Use of licensed personnel.--
2 (1)(a) Persons under contract to the facility,
3 facility staff, or volunteers, who are licensed according to
4 chapter 464, or those persons exempt under s. 464.022(1), and
5 others as defined by rule, may administer medications to
6 residents, take residents' vital signs, manage individual
7 weekly pill organizers for residents who self-administer
8 medication, give prepackaged enemas ordered by a physician,
9 observe residents, document observations on the appropriate
10 resident's record, report observations to the resident's
11 physician, and contract or allow residents or a resident's
12 representative, designee, surrogate, guardian, or attorney in
13 fact to contract with a third party, provided residents meet
14 the criteria for appropriate placement as defined in s.
15 400.426. Nursing assistants certified pursuant to part XV of
16 chapter 468 s. 400.211 may take residents' vital signs as
17 directed by a licensed nurse or physician.
18 (2) In facilities licensed to provide extended
19 congregate care, persons under contract to the facility,
20 facility staff, or volunteers, who are licensed according to
21 chapter 464, or those persons exempt under s. 464.022(1), or
22 those persons certified as nursing assistants pursuant to part
23 XV of chapter 468 s. 400.211, may also perform all duties
24 within the scope of their license or certification, as
25 approved by the facility administrator and pursuant to this
26 part.
27 Section 5. Subsection (1) of section 400.462, Florida
28 Statutes, is amended to read:
29 400.462 Definitions.--As used in this part, the term:
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1 (1) "Certified nursing assistant" means any person who
2 has been issued a certificate after fulfilling the
3 requirements of part XV of chapter 468 s. 400.211.
4 Section 6. Paragraph (a) of subsection (10) of section
5 400.506, Florida Statutes, 1998 Supplement, is amended to
6 read:
7 400.506 Licensure of nurse registries; requirements;
8 penalties.--
9 (10)(a) A nurse registry may refer for contract in
10 private residences registered nurses and licensed practical
11 nurses registered and licensed under chapter 464, certified
12 nursing assistants certified under part XV of chapter 468 s.
13 400.211, and sitters, companions, or homemakers for the
14 purposes of providing those services authorized under s.
15 400.509(1).
16 Section 7. Paragraph (a) of subsection (2) of section
17 455.667, Florida Statutes, 1998 Supplement, is amended to
18 read:
19 455.667 Ownership and control of patient records;
20 report or copies of records to be furnished.--
21 (2) As used in this section, the terms "records
22 owner," "health care practitioner," and "health care
23 practitioner's employer" do not include any of the following
24 persons or entities; furthermore, the following persons or
25 entities are not authorized to acquire or own medical records,
26 but are authorized under the confidentiality and disclosure
27 requirements of this section to maintain those documents
28 required by the part or chapter under which they are licensed
29 or regulated:
30 (a) Certified nursing assistants regulated under part
31 XV of chapter 468 s. 400.211.
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1 Section 8. Influenza and pneumonia immunizations shall
2 be provided to each patient and employee of a nursing home
3 licensed under part II of chapter 400, Florida Statutes. The
4 influenza immunization shall be offered annually on or before
5 September 1, or as soon thereafter as possible for patients
6 and employees arriving after that date; and the pneumonia
7 immunization shall be offered at the time of admission or
8 employment, or as soon thereafter as possible, to each patient
9 or employee not already having received such an immunization.
10 An immunization under this section may only be given upon the
11 informed written consent of the patient or employee, and shall
12 not be given or offered to any patient or employee who has
13 stated in writing that such an immunization conflicts with his
14 or her religious beliefs or who provides written certification
15 by a physician licensed under chapter 458 or chapter 459 that
16 such an immunization is unnecessary or hazardous to the
17 person's health. The nursing home shall provide each
18 immunization without charge, but may seek reimbursement from
19 the patient's or employee's health insurance or from Medicaid
20 or Medicare, if applicable, at a cost not to exceed $2.50 for
21 an influenza immunization and $9 for a pneumonia immunization.
22 Section 9. The Department of Health is authorized six
23 additional positions for the purposes of implementing this
24 act.
25 Section 10. This act shall take effect October 1,
26 1999.
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2 HOUSE SUMMARY
3
Creates pt. XV, ch. 468, F.S., to provide for regulation
4 of certified nursing assistants by the Department of
Health. Provides certification and practice requirements.
5 Requires maintenance of a state registry of certified
nursing assistants. Requires employers of certified
6 nursing assistant to provide certain information to the
department on an annual basis, and provides for updating
7 of the registry and assignment to inactive certification
pursuant thereto. Provides for immunization of patients
8 and employees of nursing homes against influenza and
pneumonia. Requires informed written consent. Provides
9 exemptions. Provides for reimbursement for the cost of
such immunizations. See bill for details.
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