Senate Bill 0276

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



    Florida Senate - 1999                                   SB 276

    By Senator Brown-Waite





    10-512-99

  1                      A bill to be entitled

  2         An act relating to home medical equipment

  3         providers; creating part IX of chapter 400,

  4         F.S.; providing for regulation of home medical

  5         equipment providers by the Agency for Health

  6         Care Administration; providing legislative

  7         intent; providing definitions; providing for

  8         licensure and exemptions; providing unlawful

  9         acts; providing penalties; providing for

10         license applications; providing for fees;

11         providing for background screening; providing

12         for provisional licenses and temporary permits;

13         providing for administrative penalties;

14         providing for injunctions, emergency orders,

15         and moratoriums; providing for licensure

16         inspections and investigations; providing

17         minimum standards; providing for agency rules;

18         providing for patient records; providing for

19         notice of toll-free telephone number for the

20         central abuse registry; providing for

21         background screening of home medical equipment

22         provider personnel; providing penalties;

23         providing screening procedures; providing for

24         agency injunctions; prohibiting patient

25         referrals and rebates; providing for

26         application of the act to existing providers;

27         providing an appropriation; providing an

28         effective date.

29

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

31

                                  1

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1         Section 1.  Part IX of chapter 400, Florida Statutes,

  2  consisting of sections 400.81, 400.815, 400.82, 400.821,

  3  400.822, 400.823, 400.824, 400.825, 400.83, 400.84, 400.843,

  4  400.845, 400.85, and 400.86, is created to read:

  5         400.81  Legislative intent.--It is the intent of the

  6  Legislature to provide for the licensure of home medical

  7  equipment providers and to provide for the development,

  8  establishment, and enforcement of basic standards that will

  9  ensure quality home medical equipment, products, and services.

10         400.815  Definitions.--As used in this part, the term:

11         (1)  "Accrediting organizations" means the Joint

12  Commission on Accreditation of Healthcare Organizations or

13  other national accreditation agencies whose standards for

14  accreditation are comparable to those required by this part

15  for licensure.

16         (2)  "Affiliated person" means any person who directly

17  or indirectly manages, controls, or oversees the operation of

18  a corporation or other business entity that is a licensee,

19  regardless of whether such person is a partner, shareholder,

20  owner, officer, director, agent, or employee of the entity.

21         (3)  "Agency" means the Agency for Health Care

22  Administration.

23         (4)  "Applicant" means an individual applicant in the

24  case of a sole proprietorship, or any officer, director,

25  agent, managing employee, general manager, or affiliated

26  person, or any partner or shareholder having an ownership

27  interest equal to 5 percent or greater in the corporation,

28  partnership, or other business entity.

29         (5)  "Consumer" or "patient" means any person who uses

30  home medical equipment in his or her place of residence.

31

                                  2

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1         (6)  "Department" means the Department of Children and

  2  Family Services.

  3         (7)  "General manager" means the individual who has the

  4  general administrative charge of the premises of a licensed

  5  home medical equipment provider.

  6         (8)  "Home medical equipment" includes any product as

  7  defined by the Federal Drug Administration's Drugs, Devices

  8  and Cosmetics Act, any products reimbursed under the Medicare

  9  Part B Durable Medical Equipment benefits, or any products

10  reimbursed under the Florida Medicaid durable medical

11  equipment program. Home medical equipment includes, but is not

12  limited to, oxygen and related respiratory equipment. Home

13  medical equipment includes customized wheelchairs and related

14  seating and positioning, but does not include prosthetics or

15  orthotics or any splints, braces, or aids custom fabricated by

16  a licensed health care practitioner.

17         (9)  "Home medical equipment provider" means any person

18  or entity that sells or rents or offers to sell or rent to or

19  for a consumer:

20         (a)  Any home medical equipment and services; or

21         (b)  Home medical equipment that requires any home

22  medical equipment services.

23         (10)  "Home medical equipment provider personnel" means

24  persons who are employed by or under contract with a home

25  medical equipment provider.

26         (11)  "Home medical equipment services" means equipment

27  management and consumer instruction, including selection,

28  delivery, setup, and maintenance of equipment, and other

29  related services for the use of home medical equipment in the

30  consumer's regular or temporary place of residence.

31

                                  3

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1         (12)  "Licensee" means the person or entity to whom a

  2  license to operate as a home medical equipment provider is

  3  issued by the agency.

  4         (13)  "Moratorium" means a mandated temporary cessation

  5  or suspension of the sale, rental, or offering of equipment.

  6  Services related to equipment sold or rented prior to the

  7  moratorium must be continued without interruption, unless

  8  ordered otherwise by the agency.

  9         (14)  "Person" means any individual, firm, partnership,

10  corporation, or association.

11         (15)  "Premises" means those buildings and that

12  equipment which are located at the address of the licensed

13  home medical equipment provider for the provision of home

14  medical equipment services, which are in such reasonable

15  proximity as to appear to the public to constitute a single

16  provider location, and which comply with zoning ordinances.

17         (16)  "Residence" means the consumer's home or place of

18  residence, which may include nursing homes, assisted living

19  facilities, transitional living facilities, adult family-care

20  homes, or other congregate residential facilities.

21         400.82  Home medical equipment providers to be

22  licensed; expiration of license; exemptions; unlawful acts;

23  penalties.--

24         (1)  Any person or entity that holds itself out to the

25  public as providing home medical equipment and services or

26  accepts physician orders for home medical equipment and

27  services is subject to licensure under this part.

28         (2)  Any person or entity that holds itself out to the

29  public as providing home medical equipment that typically

30  requires home medical services is subject to licensure under

31  this part.

                                  4

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1         (3)  A home medical equipment provider must be licensed

  2  by the agency to operate in this state or to provide home

  3  medical equipment and services to consumers in this state. A

  4  standard license issued to a home medical equipment provider,

  5  unless sooner suspended or revoked, expires 2 years after its

  6  effective date.

  7         (4)  A separate license is required of all home medical

  8  equipment providers operating on separate premises, even if

  9  the providers are operated under the same management.

10         (5)  The following are exempt from home medical

11  equipment provider licensure, unless they have a separate

12  corporation that is in the business of providing home medical

13  equipment and services for sale or rent to consumers at their

14  regular or temporary place of residence pursuant to the

15  provisions of this part:

16         (a)  Providers operated by the Federal Government.

17         (b)  Nursing homes licensed under part II.

18         (c)  Home health agencies licensed under part IV.

19         (d)  Hospices licensed under part VI.

20         (e)  Intermediate care facilities, homes for special

21  services, and transitional living facilities licensed under

22  part VIII.

23         (f)  Hospitals and ambulatory surgical centers licensed

24  under chapter 395.

25         (g)  Manufacturers and wholesale distributors when not

26  selling directly to consumers.

27         (h)  Licensed health care practitioners who utilize

28  home medical equipment in the course of their practice, but do

29  not sell or rent home medical equipment to their patients.

30         (i)  Pharmacies licensed under chapter 465.

31

                                  5

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1         (6)(a)  It is unlawful for any person to offer or

  2  advertise home medical equipment and services to the public

  3  unless he or she has a valid license under this part or is

  4  exempted from licensure under subsection (5). It is unlawful

  5  for any holder of a license issued under this part to

  6  advertise or indicate to the public that it holds a home

  7  medical equipment provider license other than the one it has

  8  been issued.

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

10  an injunctive proceeding under s. 400.85. A violation of

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

12  constitutes a violation of the Florida Deceptive and Unfair

13  Trade Practices Act.

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

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

16  775.082 or s. 775.083. A person who commits a second or

17  subsequent violation commits a misdemeanor of the first

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

19  Each day of continuing violation constitutes a separate

20  offense.

21         (d)  The following penalties shall be imposed for

22  operating an unlicensed home medical equipment provider:

23         1.  Any person or entity who operates an unlicensed

24  provider commits a felony of the third degree.

25         2.  For any person or entity who has received

26  government reimbursement for services provided by an

27  unlicensed provider, the agency shall make a fraud referral to

28  the appropriate government reimbursement program.

29         3.  For any licensee found to be concurrently operating

30  licensed and unlicensed provider premises, the agency may

31  impose a fine or moratorium, or revoke existing licenses of

                                  6

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1  any or all of the licensee's licensed provider locations until

  2  such time as the unlicensed provider premises is licensed.

  3         (e)  A provider found to be operating without a license

  4  may apply for licensure, and must cease operations until a

  5  license is awarded by the agency.

  6         400.821  Application for license; fee; provisional

  7  license; temporary permit.--

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

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

10  on forms furnished by it and must be accompanied by the

11  appropriate license fee as provided in subsection (12).

12         (2)  The applicant must file with the application

13  satisfactory proof that the home medical equipment provider is

14  in compliance with this part and applicable rules, including:

15         (a)  A report, by category, of the equipment to be

16  provided, indicating the equipment offered either directly by

17  the applicant or through contractual arrangements with

18  existing providers. Categories of equipment include:

19         1.  Respiratory modalities.

20         2.  Ambulation aids.

21         3.  Mobility aids.

22         4.  Sickroom setup.

23         5.  Disposables.

24         (b)  A report, by category, of the services to be

25  provided, indicating the services offered either directly by

26  the applicant or through contractual arrangements with

27  existing providers. Categories of services include:

28         1.  Intake.

29         2.  Equipment selection.

30         3.  Delivery.

31         4.  Setup and installation.

                                  7

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1         5.  Patient training.

  2         6.  Ongoing service and maintenance.

  3         7.  Retrieval.

  4         (c)  A listing of those with whom the applicant

  5  contracts, both the providers the applicant uses to provide

  6  equipment or services to its consumers and the providers for

  7  whom the applicant provides services or equipment.

  8         (3)  The applicant for initial licensure must

  9  demonstrate financial ability to operate, which may be

10  accomplished by the submission of a $50,000 surety bond to the

11  agency.

12         (4)  An applicant for renewal who has demonstrated

13  financial inability to operate must demonstrate financial

14  ability to operate.

15         (5)  Each applicant for licensure must comply with the

16  following requirements:

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

18  application, the agency shall require background screening of

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

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

21  subsection, the term "applicant" means the general manager and

22  the financial officer or similarly titled individual who is

23  responsible for the financial operation of the licensed

24  facility.

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

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

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

28  the agency has probable cause to believe that such individual

29  has been convicted of an offense prohibited under the level 2

30  standards for screening set forth in chapter 435.

31

                                  8

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  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 licensure requirements of this state is acceptable

  5  in fulfillment of paragraph (a).

  6         (d)  Each applicant must submit to the agency, with its

  7  application, a description and explanation of any exclusions,

  8  permanent suspensions, or terminations of the applicant from

  9  the Medicare or Medicaid programs. Proof of compliance with

10  disclosure of ownership and control interest requirements of

11  the Medicaid or Medicare programs shall be accepted in lieu of

12  this submission.

13         (e)  Each applicant must submit to the agency a

14  description and explanation of any conviction of an offense

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

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

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

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

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

20  serves solely in a voluntary capacity for the corporation or

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

22  operational decisions of the corporation or organization,

23  receives no remuneration for his or her services on the

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

25  financial interest and has no family members with a financial

26  interest in the corporation or organization, provided that the

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

28  include in the application a statement affirming that the

29  director's relationship to the corporation satisfies the

30  requirements of this provision.

31

                                  9

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1         (f)  A license may not be granted to any potential

  2  licensee if any applicant, administrator, or financial officer

  3  has been found guilty of, regardless of adjudication, or has

  4  entered a plea of nolo contendere or guilty to, any offense

  5  prohibited under the level 2 standards for screening set forth

  6  in chapter 435, unless an exemption from disqualification has

  7  been granted by the agency as set forth in chapter 435.

  8         (g)  The agency may deny licensure to or revoke

  9  licensure of any potential licensee if any applicant:

10         1.  Has falsely represented a material fact in the

11  application required by paragraphs (d) and (e), or has omitted

12  any material fact from the application required by paragraphs

13  (d) and (e); or

14         2.  Has had prior Medicaid or Medicare action taken

15  against the applicant as set forth in paragraph (d).

16         (h)  Upon licensure renewal, each applicant must submit

17  to the agency, under penalty of perjury, an affidavit of

18  compliance with the background screening provisions of this

19  section.

20         (6)  The home medical equipment provider must also

21  obtain and maintain professional and commercial liability

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

23  624.605, must be submitted with the application. The agency

24  shall set the required amounts of liability insurance by rule,

25  but the required amount must not be less than $250,000 per

26  claim. In the case of contracted services, it is required that

27  the contractor have liability insurance of not less than

28  $250,000 per claim.

29         (7)  A provisional license shall be issued to an

30  approved applicant for initial licensure for a period of 90

31  days, during which time a survey must be conducted

                                  10

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1  demonstrating substantial compliance with this section. A

  2  provisional license shall also be issued pending the results

  3  of an applicant's Federal Bureau of Investigation report of

  4  background screening confirming that all standards have been

  5  met. If substantial compliance is demonstrated, a standard

  6  license shall be issued to expire 2 years after the effective

  7  date of the provisional license.

  8         (8)  Ninety days before the expiration date, an

  9  application for license renewal must be submitted to the

10  agency under oath on forms furnished by the agency, and a

11  license shall be renewed if the applicant has met the

12  requirements established under this part and applicable rules.

13  The home medical equipment provider must file with the

14  application satisfactory proof that it is in compliance with

15  this part and applicable rules. The home medical equipment

16  provider must submit satisfactory proof of its financial

17  ability to comply with the requirements of this part.

18         (9)  When a change of ownership of a home medical

19  equipment provider occurs, the prospective owner must submit

20  an initial application for a license at least 15 days before

21  the effective date of the change of ownership. An application

22  for change of ownership of a license is required when

23  ownership, a majority of the ownership, or controlling

24  interest of a licensed home medical equipment provider is

25  transferred or assigned and when a licensee agrees to

26  undertake or provide services to the extent that legal

27  liability for operation of the home medical equipment provider

28  rests with the licensee. A provisional license shall be issued

29  to the new owner for a period of 90 days, during which time

30  all required documentation must be submitted and a survey must

31  be conducted demonstrating substantial compliance with this

                                  11

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1  section. If substantial compliance is demonstrated, a standard

  2  license shall be issued, to expire 2 years after the issuance

  3  of the provisional license.

  4         (10)  When a change of the general manager of a home

  5  medical equipment provider occurs, the licensee must notify

  6  the agency of the change within 45 days thereof and must

  7  provide evidence of compliance with the background screening

  8  requirements in subsection (5); except that a general manager

  9  who has met the standards for the abuse registry background

10  check and the Department of Law Enforcement background check,

11  but for whom background screening results from the Federal

12  Bureau of Investigation have not yet been received, may be

13  employed pending receipt of the Federal Bureau of

14  Investigation background screening report. An individual may

15  not continue to serve as general manager if the Federal Bureau

16  of Investigation background screening report indicates any

17  violation of background screening standards.

18         (11)  All licensure fees required of a home medical

19  equipment provider are nonrefundable. The agency shall set the

20  fees in an amount that is sufficient to cover its costs in

21  carrying out its responsibilities under this part. However,

22  state, county, or municipal governments applying for licenses

23  under this part are exempt from the payment of license fees.

24  All fees collected under this part must be deposited in the

25  Health Care Trust Fund for the administration of this part.

26         (12)  An applicant for initial licensure, renewal, or

27  change of ownership shall pay a license processing fee not to

28  exceed $300, to be paid by all applicants, and an inspection

29  fee not to exceed $400, to be paid by all applicants except

30  those not subject to licensure inspection by the agency as

31  described in s. 400.823(2).

                                  12

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1         (13)  When a change is reported which requires issuance

  2  of a license, a fee must be assessed. The fee must be based on

  3  the actual cost of processing and issuing the license.

  4         (14)  When a duplicate license is issued, a fee must be

  5  assessed, not to exceed the actual cost of duplicating and

  6  mailing.

  7         (15)  When applications are mailed out upon request, a

  8  fee must be assessed, not to exceed the cost of the printing,

  9  preparation, and mailing.

10         (16)  The license must be displayed in a conspicuous

11  place in the administrative office of the home medical

12  equipment provider and is valid only while in the possession

13  of the person or entity to which it is issued. The license may

14  not be sold, assigned, or otherwise transferred, voluntarily

15  or involuntarily, and is valid only for the home medical

16  equipment provider and location for which originally issued.

17         (17)  A home medical equipment provider against whom a

18  proceeding for revocation or suspension, or for denial of a

19  renewal application, is pending at the time of license renewal

20  may be issued a provisional license effective until final

21  disposition by the agency of such proceedings. If judicial

22  relief is sought from the final disposition, the court that

23  has jurisdiction may issue a temporary permit for the duration

24  of the judicial proceeding.

25         400.822  Administrative penalties; injunctions;

26  emergency orders; moratoriums.--

27         (1)  The agency may deny, revoke, or suspend a license,

28  or impose an administrative fine not to exceed $5,000 per

29  violation, per day, or initiate injunctive proceedings under

30  s. 400.85.

31

                                  13

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1         (2)  Any of the following actions by a home medical

  2  equipment provider or any of its employees is grounds for

  3  administrative action or penalties by the agency:

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

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

  6  materially affects the health or safety of a patient.

  7         (3)  The agency may deny or revoke the license of any

  8  applicant that:

  9         (a)  Made a false representation or omission of any

10  material fact in making the application, including the

11  submission of an application that conceals the controlling or

12  ownership interest or any officer, director, agent, managing

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

14  not be eligible to participate;

15         (b)  Has been previously found by any professional

16  licensing, certifying, or standards board or agency to have

17  violated the standards or conditions relating to licensure or

18  certification or the quality of services provided.

19  "Professional licensing, certifying, or standards board or

20  agency" shall include, but is not limited to, practitioners,

21  health care facilities, programs, or services, or residential

22  care, treatment programs, or other human services; or

23         (c)  Has been or is currently excluded, suspended, or

24  terminated from, or has involuntarily withdrawn from,

25  participation in Florida's Medicaid program or any other

26  state's Medicaid program, or participation in the Medicare

27  program or any other governmental or private health care or

28  health insurance program.

29         (4)  The agency may issue an emergency order

30  immediately suspending or revoking a license when it

31  determines that any condition within the responsibility of the

                                  14

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1  home medical equipment provider presents a clear and present

  2  danger to public health and safety.

  3         (5)  The agency may impose an immediate moratorium on

  4  any licensed home medical equipment provider when the agency

  5  determines that any condition within the responsibility of the

  6  home medical equipment provider presents a threat to public

  7  health or safety.

  8         400.823  Licensure inspections and investigations.--

  9         (1)  The agency shall make or cause to be made such

10  inspections and investigations as it considers necessary,

11  including:

12         (a)  Licensure inspections.

13         (b)  Inspections directed by the federal Health Care

14  Financing Administration.

15         (c)  Licensure complaint investigations, including full

16  licensure investigations with a review of all licensure

17  standards as outlined in the administrative rules. Complaints

18  received by the agency from individuals, organizations, or

19  other sources are subject to review and investigation by the

20  agency.

21         (2)  The agency shall accept, in lieu of its own

22  periodic inspections for licensure, submission of the

23  following:

24         (a)  The survey or inspection of an accrediting

25  organization, provided the accreditation of the licensed home

26  medical equipment provider is not provisional and provided the

27  licensed home medical equipment provider authorizes release

28  of, and the agency receives the report of, the accrediting

29  organization; or

30

31

                                  15

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1         (b)  A copy of a valid medical oxygen retail

  2  establishment permit issued by the Department of Health,

  3  pursuant to chapter 499.

  4         400.824  Minimum standards.--As a requirement of

  5  licensure, home medical equipment providers shall:

  6         (1)  Offer and provide home medical equipment and

  7  services, as necessary, to consumers who purchase or rent

  8  equipment that requires such services.

  9         (2)  Provide at least one category of equipment

10  directly, filling orders from its own inventory.

11         (3)  Respond to orders received for other equipment by

12  filling those orders from its own inventory or the inventory

13  of other companies with which it has contracted to fill such

14  orders; or customizing or fitting items for sale from supplies

15  purchased under contract.

16         (4)  Maintain trained personnel to coordinate order

17  fulfillment and schedule timely equipment and service

18  delivery.

19         (5)  As necessary in relation to the sophistication of

20  the equipment and services being provided, ensure that

21  delivery personnel are appropriately trained to conduct an

22  environment and equipment compatibility assessment;

23  appropriately and safely set up the equipment; instruct

24  patients and caregivers in the safe operation and client

25  maintenance of the equipment; and recognize when additional

26  education or followup patient compliance monitoring is

27  appropriate.

28         (6)  Ensure that patients are made aware of service

29  hours and emergency service procedures.

30         (7)  At the time of the initial delivery, set up an

31  appropriate followup home medical equipment service schedule

                                  16

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1  as needed for such times as, but not limited to, periodic

  2  maintenance, supply delivery, and other related activities.

  3         (8)  Arrange for emergency service after normal

  4  business hours; provide refresher and review training for

  5  appropriate personnel; establish a system for resolution of

  6  complaints and service problems; and provide for timely

  7  replacement or delivery of disposable or consumable equipment

  8  supplies.

  9         (9)  Honor all warranties expressed and implied under

10  applicable state law.

11         (10)  Answer any questions or complaints a consumer has

12  about an item or the use of an item that the consumer

13  purchases or rents.

14         (11)  Maintain and repair directly, or through a

15  service contract with another company, items rented to

16  consumers.

17         (12)  Accept returns of substandard or unsuitable items

18  from consumers. As used in this subsection, the term

19  "substandard" means less than full quality for the particular

20  item and the term "unsuitable" means inappropriate for the

21  consumer at the time it was fitted or sold.

22         (13)  Disclose consumer information to each consumer

23  who rents or purchases items, including all applicable

24  warranty information. This information consists of the

25  provider standards to which the item must conform.

26         (14)  Maintain patient payment and service records in

27  accordance with the requirements of this part.

28         (15)(a)  Designate appropriate staff as intake

29  coordinators, and ensure that order intake personnel are

30  appropriately trained in the types of equipment and products,

31

                                  17

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1  commonly occurring medical conditions, service procedures,

  2  third-party billing, and insurance requirements and coverage.

  3         (b)  Train intake coordinators in a basic understanding

  4  of the following areas:  dealing with patient and caregiver

  5  needs and with other, nonhome medical equipment provider

  6  services as they relate to home medical equipment services and

  7  home care patient crisis management.

  8         (16)  Establish procedures for maintaining a record of

  9  the employment history, including background screening as

10  required by s. 400.843, of all home medical equipment provider

11  personnel. A home medical equipment provider must require its

12  personnel to submit an employment history to the home medical

13  equipment provider and must verify the employment history for

14  at least the previous 5 years, unless through diligent efforts

15  such verification is not possible. There is no monetary

16  liability on the part of, and no cause of action for damages

17  arising against a former employer, a prospective employee, or

18  a prospective independent contractor with a licensed home

19  medical equipment provider, who reasonably and in good faith

20  communicates his or her honest opinions about a former

21  employee's job performance. This subsection does not affect

22  the official immunity of an officer or employee of a public

23  corporation.

24         (17)  Upon request by the consumer or as otherwise

25  required by state or federal laws, rules, and regulations,

26  assist consumers with meeting the necessary filing

27  requirements to obtain third-party payment to which a consumer

28  may be entitled.

29         (18)  Maintain safe premises.

30         (19)  Comply with all other state and federal laws.

31

                                  18

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1         400.825  Rules establishing minimum standards.--The

  2  agency shall adopt, publish, and enforce rules to implement

  3  this part, which must provide reasonable and fair minimum

  4  standards relating to:

  5         (1)  The qualifications and minimum training

  6  requirements of all home medical equipment provider personnel.

  7         (2)  License application and renewal.

  8         (3)  License and inspection fees.

  9         (4)  Financial ability to operate.

10         (5)  The administration of the home medical equipment

11  provider.

12         (6)  Procedures for maintaining patient records.

13         (7)  Ensuring that the home medical equipment and

14  services provided by a home medical equipment provider are in

15  accordance with the plan of treatment established for each

16  patient, when provided as a part of a plan of treatment.

17         (8)  Contractual arrangements for the provision of home

18  medical equipment and services by providers not employed by

19  the home medical equipment provider providing for the

20  consumer's needs.

21         (9)  Physical location and zoning requirements.

22         (10)  Home medical equipment requiring home medical

23  equipment services.

24         400.83  Patient records.--

25         (1)  The home medical equipment provider must maintain,

26  for each patient, a patient record that includes the home

27  medical equipment and services the home medical equipment

28  provider has provided. Such records must contain:

29         (a)  Any physician's order or certificate of medical

30  necessity, if the equipment was ordered by a physician.

31

                                  19

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1         (b)  Signed and dated delivery slips verifying

  2  delivery.

  3         (c)  Notes reflecting all services and maintenance

  4  performed, and any equipment exchanges.

  5         (d)  The date on which rental equipment was retrieved.

  6         (e)  Such other information as is appropriate to

  7  specific patients in light of the particular equipment

  8  provided to them.

  9         (2)  Such records are considered patient records under

10  s. 455.667, and must be maintained by the home medical

11  equipment provider for 5 years following termination of

12  services. If a patient transfers to another home medical

13  equipment provider a copy of his or her record must be

14  provided to the other home medical equipment provider upon

15  request.

16         400.84  Notice of toll-free telephone number for

17  central abuse registry.--On or before the first day home

18  medical equipment is delivered to the patient's home, any home

19  medical equipment provider licensed under this part must

20  inform the consumer and his or her immediate family, if

21  appropriate, of the right to report abusive, neglectful, or

22  exploitative practices. The statewide toll-free telephone

23  number for the central abuse registry must be provided to

24  consumers in a manner that is clearly legible and must include

25  the words:  "To report abuse, neglect, or exploitation, please

26  call toll-free 1-800-962-2873." Home medical equipment

27  providers shall establish appropriate policies and procedures

28  for providing such notice to consumers.

29         400.843  Background screening of home medical equipment

30  provider personnel.--The agency shall require employment

31  screening as provided in chapter 435, using the level 1

                                  20

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1  standards for screening set forth in that chapter, for home

  2  medical equipment provider personnel.

  3         (1)  The agency may grant exemptions from

  4  disqualification from employment under this section as

  5  provided in s. 435.07.

  6         (2)  The general manager of each home medical equipment

  7  provider must sign an affidavit annually, under penalty of

  8  perjury, stating that all home medical equipment provider

  9  personnel hired on or after July 1, 1999, who enter the home

10  of a patient in the capacity of their employment have been

11  screened and that its remaining personnel have worked for the

12  home medical equipment provider continuously since before July

13  1, 1999.

14         (3)  Proof of compliance with the screening

15  requirements of s. 110.1127, s. 393.0655, s. 394.4572, s.

16  397.451, s. 402.305, s. 402.313, s. 409.175, s. 464.008, or s.

17  985.407 or this part must be accepted in lieu of the

18  requirements of this section if the person has been

19  continuously employed in the same type of occupation for which

20  he or she is seeking employment without a breach in service

21  that exceeds 180 days, the proof of compliance is not more

22  than 2 years old, and the person has been screened through the

23  central abuse registry and tracking system of the department

24  and by the Department of Law Enforcement. An employer or

25  contractor shall directly provide proof of compliance to

26  another employer or contractor, and a potential employer or

27  contractor may not accept any proof of compliance directly

28  from the person requiring screening. Proof of compliance with

29  the screening requirements of this section shall be provided,

30  upon request, to the person screened by the home medical

31  equipment provider.

                                  21

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1         (4)  There is no monetary liability on the part of, and

  2  no cause of action for damages arising against, a licensed

  3  home medical equipment provider that, upon notice of a

  4  confirmed report of adult abuse, neglect, or exploitation

  5  under chapter 415, terminates the employee against whom the

  6  report was issued, whether or not the employee has filed for

  7  an exemption with the agency and whether or not the time for

  8  filing has expired.

  9         (5)  The costs of processing the statewide

10  correspondence criminal records checks and the search of the

11  department's central abuse registry must be borne by the home

12  medical equipment provider or by the person being screened, at

13  the discretion of the home medical equipment provider.

14         (6)  Neither the agency nor the home medical equipment

15  provider may use the criminal records, juvenile records, or

16  central abuse registry information of a person for any purpose

17  other than determining whether that person meets minimum

18  standards of good moral character for home medical equipment

19  provider personnel.

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

21  punishable as provided in s. 775.082 or s. 775.083, for any

22  person willfully, knowingly, or intentionally to:

23         1.  Fail, by false statement, misrepresentation,

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

25  application for paid employment a material fact used in making

26  a determination as to the person's qualifications to be an

27  employee under this section;

28         2.  Operate or attempt to operate an entity licensed

29  under this part with persons who do not meet the minimum

30  standards for good moral character as contained in this

31  section; or

                                  22

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1         3.  Use information from the criminal records or

  2  central abuse registry obtained under this section for any

  3  purpose other than screening that person for employment as

  4  specified in this section, or release such information to any

  5  other person for any purpose other than screening for

  6  employment under this section.

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

  8  provided in s. 775.082, s. 775.083, or s. 775.084, for any

  9  person willfully, knowingly, or intentionally to use

10  information from the juvenile records of a person obtained

11  under this section for any purpose other than screening for

12  employment under this section.

13         400.845  Procedures for screening of home medical

14  equipment provider personnel.--

15         (1)  A person employed by a home medical equipment

16  provider shall, within 5 working days after starting to work,

17  submit to the home medical equipment provider a complete set

18  of information necessary to conduct a screening under this

19  section. The person must sign an affidavit stating whether the

20  person meets the minimum standards for good moral character

21  under this section. The home medical equipment provider shall

22  submit the information to the Department of Law Enforcement

23  and to the department's central abuse registry and tracking

24  system for processing. If disposition information is missing

25  on a criminal record, it is the responsibility of the person

26  being screened to obtain and supply the missing information

27  within 30 days. Failure to supply the missing information or

28  to show reasonable efforts to obtain such information will

29  result in automatic disqualification for employment.

30         (2)  Home medical equipment provider personnel hired on

31  or after July 1, 1999, must be placed on probationary status

                                  23

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1  pending a determination of compliance with minimum standards

  2  for good moral character.

  3         (3)  The home medical equipment provider must

  4  automatically terminate the employment of any of its personnel

  5  found to be in noncompliance with the minimum standards for

  6  good moral character under this section, unless such person

  7  has obtained an exemption under s. 400.843(1).

  8         (4)  The general manager of each home medical equipment

  9  provider must sign an affidavit annually, under penalty of

10  perjury, stating that all personnel hired on or after July 1,

11  1999, have been screened and that its remaining personnel have

12  worked for the home medical equipment provider continuously

13  since before July 1, 1999.

14         400.85  Injunction proceedings.--The agency may

15  institute injunction proceedings in a court of competent

16  jurisdiction when violation of this part or of applicable

17  rules constitutes an emergency affecting the immediate health

18  and safety of a patient or consumer.

19         400.86  Prohibited acts.--Compliance with state and

20  federal laws regarding prohibited patient referrals and

21  rebates shall be a condition of licensure.

22         Section 2.  Home medical equipment providers in

23  existence on the effective date of this act who are subject to

24  licensure under part IX of chapter 400, Florida Statutes, as

25  created in this act, shall submit an application and

26  applicable fees for licensure by December 31, 1999. Those

27  existing providers that submit applications and fees prior to

28  December 31, 1999, shall be deemed to meet licensure

29  requirements until the agency acts to deny or grant the

30  initial licensure application. After December 31, 1999,

31

                                  24

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






    Florida Senate - 1999                                   SB 276
    10-512-99




  1  applicants for licensure may not operate until they are

  2  approved and obtain a license.

  3         Section 3.  There is appropriated from the Health Care

  4  Trust Fund to the Agency for Health Care Administration 13

  5  full-time-equivalent staff positions and $701,370 to implement

  6  the provisions of this act.

  7         Section 4.  This act shall take effect July 1, 1999.

  8

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

10                          SENATE SUMMARY

11    Creates part IX of ch. 400, F.S., to provide for the
      licensure and regulation of home medical equipment
12    providers by the Agency for Health Care Administration.
      Provides for certain health care providers and facilities
13    to be exempt from regulation. Provides penalties for
      operating home medical equipment and services without a
14    valid license. Provides for application and license fees.
      Provides requirements for background screening of license
15    applicants. Authorizes the agency to impose
      administrative fines and issue injunctions. (See bill for
16    details.)

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

                                  25