Senate Bill 2190

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    Florida Senate - 1999                                  SB 2190

    By Senator Forman





    32-1257-99

  1                      A bill to be entitled

  2         An act relating to developmental disabilities;

  3         amending s. 393.063, F.S.; providing an

  4         exclusion from the definition of the term

  5         "direct service provider"; amending s.

  6         393.0655, F.S.; clarifying screening

  7         requirements for certain providers; amending s.

  8         393.0678, F.S.; providing that the Department

  9         of Children and Family Services and the Agency

10         for Health Care Administration share the

11         responsibility for receivership proceedings for

12         intermediate care facilities for the

13         developmentally disabled; amending s. 393.502,

14         F.S.; amending the membership of the family

15         care councils; amending terms of office;

16         providing an effective date.

17

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

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20         Section 1.  Paragraph (f) is added to subsection (15)

21  of section 393.063, Florida Statutes, 1998 Supplement, to

22  read:

23         393.063  Definitions.--For the purposes of this

24  chapter:

25         (15)  "Direct service provider," also known as

26  "caregiver" in chapters 39 and 415 or "caretaker" in

27  provisions relating to employment security checks, means a

28  person 18 years of age or older who has direct contact with

29  individuals with developmental disabilities and is unrelated

30  to the individuals with developmental disabilities.

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  1         (f)  Employees of entities licensed under chapter 400

  2  who have undergone background screening under the applicable

  3  screening provisions of that chapter are direct service

  4  providers for purposes of background screening as provided in

  5  s. 393.0655 and need not be rescreened under that section as

  6  long as they provide only those services that are authorized

  7  under the applicable provisions of chapter 400 and the license

  8  held by the employer.

  9         Section 2.  Subsection (1) of section 393.0655, Florida

10  Statutes, is amended to read:

11         393.0655  Screening of direct service providers.--

12         (1)  MINIMUM STANDARDS.--The department shall require

13  employment screening pursuant to chapter 435, using the level

14  2 standards for screening set forth in that chapter, for

15  direct service providers who are unrelated to their clients.

16  Companions and homemakers who are also seeking to provide

17  these services under the developmental services home and

18  community-based services waiver are exempt from the

19  registration requirements of s. 400.509.

20         Section 3.  Subsections (1), (2), and (3) of section

21  393.0678, Florida Statutes, are amended to read:

22         393.0678  Receivership proceedings.--

23         (1)  The department, in conjunction with the Agency for

24  Health Care Administration, may petition a court of competent

25  jurisdiction for the appointment of a receiver for an

26  intermediate care facility for the developmentally disabled.,

27  The department may also petition the court for the appointment

28  of a receiver for a residential habilitation center, or a

29  group home facility owned and operated by a corporation or

30  partnership when any of the following conditions exist:

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    Florida Senate - 1999                                  SB 2190
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  1         (a)  Any person is operating a facility without a

  2  license and refuses to make application for a license as

  3  required by s. 393.067 or, in the case of an intermediate care

  4  facility for the developmentally disabled, as required by ss.

  5  393.067 and 400.062.

  6         (b)  The licensee is closing the facility or has

  7  informed the department or the Agency for Health Care

  8  Administration that it intends to close the facility; and

  9  adequate arrangements have not been made for relocation of the

10  residents within 7 days, exclusive of weekends and holidays,

11  of the closing of the facility.

12         (c)  The department or the Agency for Health Care

13  Administration determines that conditions exist in the

14  facility which present an imminent danger to the health,

15  safety, or welfare of the residents of the facility or which

16  present a substantial probability that death or serious

17  physical harm would result therefrom.  Whenever possible, the

18  department, in conjunction with the Agency for Health Care

19  Administration, shall facilitate the continued operation of

20  the program.

21         (d)  The licensee cannot meet its financial obligations

22  to provide food, shelter, care, and utilities. Evidence such

23  as the issuance of bad checks or the accumulation of

24  delinquent bills for such items as personnel salaries, food,

25  drugs, or utilities constitutes prima facie evidence that the

26  ownership of the facility lacks the financial ability to

27  operate the home in accordance with the requirements of this

28  chapter and all rules promulgated thereunder.

29         (2)(a)  The petition for receivership shall take

30  precedence over other court business unless the court

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  1  determines that some other pending proceeding, having similar

  2  statutory precedence, has priority.

  3         (b)  A hearing shall be conducted within 5 days of the

  4  filing of the petition, at which time all interested parties

  5  shall have the opportunity to present evidence pertaining to

  6  the petition.  The department shall notify the owner or

  7  operator of the facility named in the petition of its filing

  8  and the date set for the hearing.

  9         (c)  The court shall grant the petition only upon

10  finding that the health, safety, or welfare of residents of

11  the facility would be threatened if a condition existing at

12  the time the petition was filed is permitted to continue.  A

13  receiver may not be appointed ex parte unless the court

14  determines that one or more of the conditions in subsection

15  (1) exist; that the facility owner or operator cannot be

16  found; that all reasonable means of locating the owner or

17  operator and notifying him or her of the petition and hearing

18  have been exhausted; or that the owner or operator after

19  notification of the hearing chooses not to attend. After such

20  findings, the court may appoint any person qualified by

21  education, training, or experience to carry out the

22  responsibilities of receiver pursuant to this section, except

23  that the court may not appoint any owner or affiliate of the

24  facility which is in receivership.  Before the appointment as

25  receiver of a person who is the operator, manager, or

26  supervisor of another facility, the court shall determine that

27  the person can reasonably operate, manage, or supervise more

28  than one facility.  The receiver may be appointed for up to 90

29  days with the option of petitioning the court for 30-day

30  extensions.  The receiver may be selected from a list of

31  persons qualified to act as receivers developed by the

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  1  department, in conjunction with the Agency for Health Care

  2  Administration when the facility is an intermediate care

  3  facility for the developmentally disabled, and presented to

  4  the court with each petition for receivership. Under no

  5  circumstances may the department, the Agency for Health Care

  6  Administration, or a designated departmental or agency

  7  employee be appointed as a receiver for more than 60 days;

  8  however, the departmental or agency receiver may petition the

  9  court for 30-day extensions.  The court shall grant an

10  extension upon a showing of good cause.  The department, in

11  conjunction with the Agency for Health Care Administration,

12  may petition the court to appoint a substitute receiver.

13         (d)  During the first 60 days of the receivership, the

14  department, in conjunction with the Agency for Health Care

15  Administration when the facility is an intermediate care

16  facility for the developmentally disabled, may not take action

17  to decertify or revoke the license of a facility unless

18  conditions causing imminent danger to the health and welfare

19  of the residents exist and a receiver has been unable to

20  remove those conditions.  After the first 60 days of

21  receivership, and every 60 days thereafter until the

22  receivership is terminated, the department, in conjunction

23  with the Agency for Health Care Administration, shall submit

24  to the court the results of an assessment of the ability of

25  the facility to assure the safety and care of the residents.

26  If the conditions at the facility or the intentions of the

27  owner indicate that the purpose of the receivership is to

28  close the facility rather than to facilitate its continued

29  operation, the department shall place the residents in

30  appropriate alternate residential settings as quickly as

31  possible.  If, in the opinion of the court, the department has

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  1  not been diligent in its efforts to make adequate arrangements

  2  for placement, the court shall find the department to be in

  3  contempt and shall order the department to submit its plans

  4  for moving the residents.

  5         (3)  The receiver shall make provisions for the

  6  continued health, safety, and welfare of all residents of the

  7  facility and:

  8         (a)  Shall exercise those powers and perform those

  9  duties set out by the court.

10         (b)  Shall operate the facility in such a manner as to

11  assure the residents' safety and adequate health care for the

12  residents.

13         (c)  Shall take such action as is reasonably necessary

14  to protect or conserve the assets or property of the facility

15  for which the receiver is appointed, or the proceeds from any

16  transfer thereof, and may use them only in the performance of

17  the powers and duties set forth in this section and by order

18  of the court.

19         (d)  Shall honor all leases, mortgages, and secured

20  transactions governing the building in which the facility is

21  located and all goods and fixtures in the building of which

22  the receiver has taken possession, but only to the extent of

23  payments which, in the case of a rental agreement, are for the

24  use of the property during the period of the receivership or

25  which, in the case of a purchase agreement, become due during

26  the period of the receivership.

27         (e)  May use the building, fixtures, furnishings, and

28  any accompanying consumable goods in the provision of care and

29  services to residents and to any other persons receiving

30  services from the facility at the time the petition for

31  receivership was filed.  The receiver shall collect payments

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  1  for all goods and services provided to residents or others

  2  during the period of the receivership at the same rate of

  3  payment charged by the owner at the time the petition for

  4  receivership was filed, or at a fair and reasonable rate

  5  otherwise approved by the court for private, paying residents.

  6  The receiver may apply to the Agency for Health Care

  7  Administration department for a rate increase for residents

  8  under Title XIX of the Social Security Act if the facility is

  9  not receiving the state reimbursement cap and if expenditures

10  justify an increase in the rate.

11         (f)  May correct or eliminate any deficiency in the

12  structure, furnishings, or staffing of the facility which

13  endangers the safety or health of residents while they remain

14  in the facility, provided the total cost of correction does

15  not exceed $3,000.  The court may order expenditures for this

16  purpose in excess of $3,000 on application from the receiver

17  after notice to the owner.  A hearing may be requested by the

18  owner within 72 hours.

19         (g)  May let contracts and hire agents and employees to

20  carry out the powers and duties of the receiver under this

21  section.

22         (h)  Shall have full power to direct, manage, hire, and

23  discharge employees of the facility subject to any contract

24  rights they may have.  The receiver shall hire and pay

25  employees at the rate of compensation, including benefits,

26  approved by the court. Receivership does not relieve the owner

27  of any obligations to employees which had been made before the

28  appointment of a receiver and were not carried out by the

29  receiver.

30         (i)  Shall be entitled to take possession of all

31  property or assets of residents which are in the possession of

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  1  a facility or its owner.  The receiver shall preserve all such

  2  property or assets and all resident records of which the

  3  receiver takes possession; and he or she shall provide for the

  4  prompt transfer of the property, assets, and records of any

  5  resident transferred to the resident's new placement.  An

  6  inventory list certified by the owner and receiver shall be

  7  made at the time the receiver takes possession of the

  8  facility.

  9         Section 4.  Subsection (1) of section 393.502, Florida

10  Statutes, is amended to read:

11         393.502  Family care councils.--

12         (1)  CREATION; APPOINTMENT.--There shall be established

13  and located within each service district of the Department of

14  Children and Family Health and Rehabilitative Services a

15  family care council.  The council shall consist of nine

16  persons recommended and appointed by the district health and

17  human services board. The councils shall consist of clients

18  who receive services from the department and family members or

19  legal guardians of clients. Each council shall have a minimum

20  of 8 members and a maximum of 12 members, including at least 3

21  members who have developmental disabilities. Alternate members

22  may be recommended and appointed by the district health and

23  human services board. Alternate members have full rights of

24  membership except that they may not vote, nor does their

25  presence count towards a quorum. A member who cannot attend a

26  meeting may give his or her proxy vote to an alternate member.

27  One-half of the members of the council must be consumers who

28  are family members or legal guardians of persons with

29  developmental disabilities.  At least one-half of the members

30  of the council shall be current consumers of developmental

31  services.  A chairperson for the council must be chosen by the

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  1  members to serve for 2 years 1 year.  Members shall be

  2  appointed for a 3-year 2-year term and may be reappointed to

  3  not more than one additional term. A person who is currently

  4  serving on another board or council of the department may not

  5  be appointed to a family care council.

  6         Section 5.  This act shall take effect upon becoming a

  7  law.

  8

  9            *****************************************

10                          SENATE SUMMARY

11    Relates to developmental disabilities. Provides an
      exclusion from the definition of the term "direct service
12    provider." Clarifies screening requirements for
      developmental services home and community-based services
13    waiver providers. Provides that the Department of
      Children and Family Services and the Agency for Health
14    Care Administration share the responsibility for
      receivership proceedings for intermediate care facilities
15    for the developmentally disabled. Amends the membership
      of the family care councils and lengthens the terms of
16    office of council members and chairpersons.

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