House Bill 0651

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    Florida House of Representatives - 1999                 HB 651

        By Representatives Crist, Futch, Heyman, Crady,
    Trovillion, Cosgrove, Kilmer, Ryan, Healey, Andrews, Bradley,
    Crow, Murman, Barreiro, Eggelletion, Cantens, C. Smith,
    Effman, Ritter, Fasano, Peaden, Prieguez, Villalobos, Bullard,
    (Additional Sponsors on Last Printed Page)


  1                      A bill to be entitled

  2         An act relating to nursing homes; creating the

  3         "Bob Byram Nursing Home Care Reform Act";

  4         creating s. 400.0115, F.S.; providing

  5         legislative findings and intent; requiring

  6         studies and recommendations by the Agency for

  7         Health Care Administration; amending s.

  8         400.022, F.S.; revising rights of residents of

  9         nursing home facilities and providing

10         additional rights; providing for a

11         user-friendly poster of residents' rights;

12         amending s. 400.0231, F.S.; requiring

13         facilities to keep complete and accurate

14         medical records; providing a rebuttable

15         presumption in the absence of such records;

16         amending s. 400.0255, F.S.; providing

17         definitions and requirements relating to

18         discharge or transfer of residents; amending s.

19         400.063, F.S.; correcting a cross reference;

20         amending s. 400.121, F.S.; authorizing payment

21         of facility fines or recovery costs by setoffs

22         from amounts otherwise payable to the facility;

23         providing requirements for review of

24         administrative proceedings challenging agency

25         enforcement actions; amending s. 400.151, F.S.;

26         requiring agency approval of the form of

27         facility contracts with residents; providing

28         exceptions; amending s. 400.162, F.S.;

29         providing minimum requirements for policies

30         regarding the safekeeping of residents'

31         property; amending s. 400.23, F.S.; providing

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  1         minimum staffing requirements; requiring

  2         recordkeeping with respect to staffing and

  3         report of staffing shortfalls; increasing

  4         membership on the Nursing Home Advisory

  5         Committee; authorizing the agency to downgrade

  6         facility ratings under certain circumstances;

  7         requiring issuance of amended licenses

  8         reflecting facility ratings changes; revising

  9         certain ratings requirements; providing

10         additional acts classified as deficiencies;

11         providing penalties and increasing maximum

12         fines; amending s. 400.241, F.S.; prohibiting

13         willful interference with unannounced required

14         inspections of a facility; providing a penalty;

15         amending s. 400.29, F.S.; requiring the agency

16         to make certain updated information available

17         to the public; amending s. 415.107, F.S.;

18         providing that the identity of a person

19         reporting adult abuse, neglect, or exploitation

20         may be released to the Attorney General's

21         Medicaid Fraud Control Unit; amending ss.

22         435.03 and 435.04, F.S.; providing for

23         employment screening of persons convicted under

24         s. 825.1035, F.S.; creating s. 825.1035, F.S.;

25         providing a penalty for failure to report known

26         abuse, neglect, or exploitation of a nursing

27         home resident to law enforcement; amending s.

28         394.4625, F.S.; correcting a cross reference;

29         providing an appropriation; providing an

30         effective date.

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  1         WHEREAS,  Florida has the highest percentage of persons

  2  over 65 in the United States, and the second highest median

  3  age in the United States, and

  4         WHEREAS, 23 percent of Florida's population is age 60

  5  or older, and the portion of the state's population over the

  6  age of 85 is the fastest-growing age group in Florida, and

  7         WHEREAS, approximately 280,000 elder citizens and

  8  approximately 60,000 other adult citizens in Florida are

  9  considered severely disabled, in that they require assistance

10  with three or more activities of daily living, and

11         WHEREAS, Florida's 676 licensed nursing homes,

12  including extended care facilities, skilled nursing

13  facilities, and intermediate care facilities, provide 80,612

14  beds for residents, with an average occupancy rate of about 90

15  percent, and

16         WHEREAS, the nursing home industry is one of America's

17  fastest growing industries, with employment nationally

18  expected to grow from 1.6 million in 1995 to 2.4 million in

19  2005, and

20         WHEREAS, nursing homes in Florida constitute a

21  significant sector of the state's economy, providing jobs for

22  over 80,000 citizens, with annual payrolls of over $125

23  million and annual gross revenues in excess of $4.4 billion,

24  and

25         WHEREAS, the number of nursing home beds has increased

26  about 33 percent over the past 10 years, but the average

27  number of admissions to nursing homes increased 176 percent

28  over the same period, due to improvements in medical care, a

29  doubling of the rate of turnover of beds, and a decline in the

30  average stays in nursing homes from 52 days to 22 days since

31  1988, and

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  1         WHEREAS, Florida has the second lowest number of

  2  nursing home beds per 1,000 persons over the age of 65 in the

  3  nation: 27 beds compared to the national average of 58, and

  4         WHEREAS, Florida nursing homes have more residents

  5  between the ages of 80 and 84 than any other age group, and

  6  over 65 percent of all Florida nursing home residents are over

  7  80 years of age, and

  8         WHEREAS, nationally, 52 percent of all women over age

  9  65 and 33 percent of all men over age 65 will stay in a

10  nursing home at some point in their lives, and

11         WHEREAS, nationally, over $77.9 billion was spent on

12  nursing home care in 1995, and

13         WHEREAS, over 60 percent of the total patient days in

14  Florida nursing homes are paid for by the Florida Medicaid

15  program, or approximately $1.4 billion, a 133 percent increase

16  from 10 years ago, and

17         WHEREAS, approximately 10 percent of total patient days

18  at Florida nursing homes are paid by Medicare, but Medicare

19  pays for about 60 percent of new admissions to Florida nursing

20  homes, since Medicare pays only for short-term care, and

21         WHEREAS, state expenditures for nursing home care are

22  projected to continue to rise at approximately 15 percent per

23  year for the foreseeable future, and

24         WHEREAS, Florida has a significant structure of

25  regulation over nursing homes, but there continue to be too

26  many instances of violations which endanger the health,

27  safety, and welfare of residents of Florida nursing homes, and

28         WHEREAS, Florida should exert extraordinary efforts to

29  protect the interests of its citizens who are unable to fully

30  care for themselves, and

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  1         WHEREAS, there is a significant expenditure of state

  2  and federal dollars in providing care for Florida residents,

  3  which expenditures should not be subject to fraud or abuse, or

  4  diversion away from providing an adequate standard of care for

  5  nursing home residents, and

  6         WHEREAS, the regulation of nursing homes in Florida is

  7  primarily the responsibility of the Agency for Health Care

  8  Administration, and

  9         WHEREAS, several other agencies are also involved in

10  regulating or investigating some aspect of Florida nursing

11  homes: the Department of Children and Family Services

12  investigates hotline reports of elder/disabled abuse; the

13  Comprehensive Assessment and Review for Extended Services

14  ("CARES") program of the Department of Elder Affairs screens

15  Medicaid recipients for eligibility for nursing home care; the

16  long-term care ombudsman councils administratively housed

17  within the Department of Elder Affairs investigate reports of

18  problems in nursing homes and mediate resolutions; the

19  Department of Insurance regulates continuing care communities;

20  the Attorney General's Medicaid Fraud Control Unit

21  investigates not only fraud cases, but also reports of abuse

22  and exploitation involving Florida nursing home residents; and

23  the 20 state attorneys prosecute criminal abuse, neglect, and

24  exploitation cases, and

25         WHEREAS, over the past 3 years, the Agency for Health

26  Care Administration has begun 125 administrative actions

27  against Florida nursing homes, issued 81 moratoria on new

28  admissions to Florida nursing homes, and instituted over 25

29  receiverships, closures, or license revocations; has imposed

30  state civil penalties of over $2 million; and has proposed

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  1  federal civil monetary penalties totaling over $5.7 million,

  2  and

  3         WHEREAS, the agency issued administrative fines against

  4  the Chartwell Corporation of over $500,000 in 1998 for

  5  violations at a facility in Orange Park which resulted in the

  6  emergency relocation of 102 residents. This action culminated

  7  a 2-year history of moratoria and other sanctions involving

  8  seven facilities in Florida, which ultimately led to the

  9  agency revoking several licenses and terminating the chain

10  from the Medicaid program, and

11         WHEREAS, despite these actions, unacceptable conditions

12  continue to arise at some Florida nursing homes, and

13         WHEREAS, the enforcement powers of the agency need to

14  be strengthened to prevent further abuse and to ensure

15  continuing compliance by Florida nursing homes with regulatory

16  requirements, especially quality-of-care requirements, and

17         WHEREAS, the Attorney General's Medicaid Fraud Control

18  Unit has investigated over 1,700 cases of alleged Medicaid

19  fraud in the past 5 years, and has made over 400 arrests; over

20  $2.7 million in restitution to the state has been ordered in

21  criminal cases, and over $8.9 million has been ordered in

22  civil cases involving all Medicaid provider types; over 442

23  cases of patient abuse have been investigated, and the unit is

24  currently investigating 51 cases involving fraud, abuse, or

25  neglect in Florida nursing homes, and

26         WHEREAS, the long-term care ombudsman councils received

27  approximately 7,500 complaints in the past fiscal year

28  concerning conditions at nursing homes, and were instrumental

29  in assisting the agency and the Elder Abuse Registry in

30  documenting numerous violations, and

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  1         WHEREAS, according to the State Long-Term Care

  2  Ombudsman, the five most frequent complaints regarding

  3  long-term care facilities involve: shortage of staff, lack of

  4  dignity, personal hygiene, gross neglect, and medication

  5  administration, and

  6         WHEREAS, Florida law must be strengthened to require

  7  nursing home staff to report instances of criminal abuse of

  8  nursing home residents to law enforcement, and

  9         WHEREAS, on a national basis, the United States

10  Department of Health and Human Services Inspector General

11  recently found that as many as 20 percent of nursing home

12  residents were receiving inappropriate medication, and

13         WHEREAS, the current nursing home staffing levels

14  prescribed by Florida laws and regulations are below the

15  national minimum levels recommended by the National Citizens'

16  Coalition for Nursing Home Reform and the John A. Hartford

17  Foundation Institute for Geriatric Nursing, and

18         WHEREAS, it appears that in order to ensure a minimum

19  level of care for residents of Florida nursing homes, there

20  must be improvements in the required level of skilled nursing

21  and unskilled nursing staff at facilities, and there must

22  furthermore be a minimum level of staffing prescribed for each

23  shift, and

24         WHEREAS, it appears that in order to ensure a minimum

25  level of care for residents in all Florida nursing homes, the

26  authority of the Agency for Health Care Administration must be

27  strengthened to mandate increased or improved staff when

28  serious deficiencies attributable to an inadequate number of

29  nurses or certified nursing assistants are identified, and

30

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  1         WHEREAS, any such increase in minimum staffing levels

  2  should be accompanied by an adjustment in the reimbursement

  3  rates paid by Florida Medicaid, and

  4         WHEREAS, even though "dumping" is forbidden by federal

  5  and Florida law, some facilities discriminate against or

  6  attempt to transfer or discharge residents because their care

  7  is paid for by Medicaid, and it is difficult to prevent this

  8  practice because of loopholes in the current statutes, and

  9         WHEREAS, the agency levied state penalties of $260,000

10  and recommended a federal fine of $100,000 against Vencor,

11  Inc., in April of 1998 for its actions in attempting to evict

12  52 residents who were Medicaid recipients, and

13         WHEREAS, such instances indicate that Florida law must

14  be strengthened and loopholes closed to prevent "dumping," and

15         WHEREAS, the current system of rating Florida nursing

16  homes allows undeserving facilities to be given a higher

17  rating than is justified, thus misleading consumers and

18  discouraging competition, and

19         WHEREAS, the rating system needs to be strengthened so

20  that the best nursing homes receive the recognition they

21  deserve and families and residents may be assured that truly

22  superior care will be rendered by a nursing home that is rated

23  "superior," and

24         WHEREAS, the agency's Guide to Nursing Homes in Florida

25  should be expanded to provide fuller and more timely

26  information to nursing home residents, families, and the

27  public, and

28         WHEREAS, in order to uphold the rights of nursing home

29  residents and to improve the quality of their care, Florida

30  law needs to be strengthened in several areas to better inform

31  residents and their families concerning nursing home services

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  1  and billings, to deter fraud, to improve recordkeeping and

  2  reporting, to improve the physical security of nursing home

  3  residents and their personal belongings, to improve hygiene

  4  for residents and minimize the risk of bedsores and other

  5  infections, to enhance the resident's rights to choose a

  6  pharmacy and lower his or her prescription costs, and to

  7  ensure that contracts between nursing homes and their

  8  residents are not misleading or otherwise unlawful, and

  9         WHEREAS, to better safeguard the health, safety, and

10  welfare of Florida nursing home residents, the Agency for

11  Health Care Administration must be empowered and instructed to

12  institute an "early warning system" so that potentially

13  dangerous conditions at nursing homes may be detected and

14  corrected before tragedy strikes, NOW, THEREFORE,

15

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

17

18         Section 1.  This act may be cited as the "Bob Byram

19  Nursing Home Care Reform Act."

20         Section 2.  Section 400.0115, Florida Statutes, is

21  created to read:

22         400.0115  Legislative findings and intent; studies;

23  report and recommendations.--

24         (1)  The Legislature finds that, in some cases, the

25  present regulatory system regarding nursing home facilities is

26  not adequate to detect and correct problems at the facilities

27  before they reach the crisis stage.  Some facilities have

28  failed to meet their payroll and other normal operating

29  expenses, resulting in sudden closure of the facility and the

30  need for emergency measures and the expenditure of public

31  funds to transfer residents to another facility in order to

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  1  continue their care.  Other facilities have lapsed into such

  2  inadequate care that the health and welfare of many residents

  3  has been harmed, resulting in the need for emergency measures

  4  to alleviate the problems, again often at great public

  5  expense. Many facilities with separate licenses for each

  6  location are owned by holding companies or chains; other

  7  groups of facilities, which may or may not have different

  8  owners, are managed by the same management company. In either

  9  case, the regulatory system must recognize such realities and

10  the potential impact they may have on the quality of care

11  received by nursing home residents. In carrying out its duties

12  under this section, the agency shall consider the terms

13  "facility" and "licensee" to include holding companies,

14  chains, or management companies, where appropriate. The

15  Legislature finds and determines that, in order to protect the

16  health, safety, and welfare of nursing home residents,

17  additional procedures are required to:

18         (a)  Continuously gather and analyze information

19  regarding the operation of facilities and the condition of

20  residents therein.

21         (b)  Determine which events or conditions or other data

22  are "early warning signs" indicating a substantial possibility

23  that the financial stability of the facility or the quality of

24  care of residents of the facility is or may soon be in

25  jeopardy.

26         (c)  Enable the agency to inspect, survey, and examine

27  any facility deemed to be potentially in danger of having

28  deficiencies or violations threatening the financial stability

29  of the facility or the quality of care given to residents of

30  the facility, without notification to the facility and solely

31  at the discretion of the agency.

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  1         (d)  Enable the agency to intervene immediately in the

  2  case of a facility found to have such deficiencies or

  3  violations, in order to prevent further deterioration of

  4  conditions and possible crisis situations.

  5         (e)  Protect the rights of facility owners and staff,

  6  as well as the rights of residents of the facilities.

  7         (2)  It is, further, the intent of the Legislature to

  8  require that information provided to the agency by facilities

  9  and by other government agencies be in a consistent,

10  user-friendly, and logical format to enable maximum use of

11  electronic data transmission and processing techniques by the

12  agency to more efficiently gather, collate, analyze, use, and

13  disseminate information used in the regulation of facilities.

14         (3)  The agency is directed to perform the following

15  studies and to present a report and recommendations to the

16  Speaker of the House of Representatives and the President of

17  the Senate by February 1, 2000, for consideration at the 2000

18  Regular Session of the Legislature. The agency shall:

19         (a)  Identify all sources of data and other information

20  relating to regulation of facilities presently received by the

21  agency from facilities, government agencies, and the public.

22         (b)  Determine those types of events, occurrences, and

23  conditions at facilities which, in the judgment of the agency,

24  based upon its experience and knowledge of conditions in the

25  nursing home industry, serve as "early warning signs" or

26  indicators that there is a substantial possibility that the

27  financial stability of a facility, or the quality of care

28  given to residents of a facility, may be in jeopardy to the

29  extent that the health, safety, or welfare of residents could

30  be adversely affected. The criteria for such "early warning

31  signs" may be developed by the agency with the full right of

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  1  the agency to keep such criteria confidential in order to

  2  assist in the investigation and regulation of nursing homes.

  3  The events, occurrences, and conditions determined to serve as

  4  "early warning signs" need not constitute violations or

  5  deficiencies themselves, as long as they are sufficient

  6  indicators of the possible presence of violations or

  7  deficiencies which could adversely affect the health, safety,

  8  or welfare of residents.  For example, and without limiting

  9  the generality of the foregoing:

10         1.  A continuing failure or inability of a facility to

11  pay its accounts payable, payroll, taxes, etc., in a timely

12  manner may indicate that a facility's financial stability is

13  jeopardized to the extent that it may become insolvent or

14  abruptly cease operations, thus causing disruption and adverse

15  effects on the care given to residents, with the concomitant

16  need for the agency to seek moratoria, injunctions,

17  receiverships, and expenditures from the Resident Protection

18  Trust Fund.  If the use of "early warning signs" enables the

19  agency to detect and alleviate such financial problems before

20  matters reach such a crisis stage, public resources will be

21  conserved and the quality of care of residents will be

22  enhanced.

23         2.  A pattern of falls, significant weight loss,

24  dehydration, pressure sores, or pulmonary infections among

25  residents of a facility could indicate a decline in the

26  standard of care being given by the facility, which could lead

27  to serious adverse impacts on the health of residents if

28  unchecked.

29         3.  A pattern of unexplained disappearances of

30  resident's personal property, or the presence of unauthorized

31  persons in the facility, or a pattern of attacks on residents,

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  1  could indicate inadequate security measures at the facility,

  2  endangering the safety and welfare of residents if not

  3  corrected.

  4         (c)  Determine whether the data and other information

  5  identified under paragraph (a) is sufficient in terms of

  6  timeliness and quality to serve as the "early warning signs"

  7  identified under paragraph (b), and if not, what changes would

  8  be required in agency rules or in statutes to provide

  9  sufficient information.

10         (d)  Determine whether additional changes are needed in

11  agency rules or in statutes to make the information identified

12  in paragraphs (a) and (b) more systematic, coherent,

13  meaningful, consistent, useful, and user-friendly, in order to

14  promote efficiency, recognize and regulate practices of

15  holding companies, chains, and management companies affecting

16  more than one facility, improve regulation of facilities, and

17  enhance protection of the health, safety, and welfare of

18  residents of facilities, without unnecessary burdens on the

19  regulated facilities, and without conflicting with nonwaivable

20  federal requirements.

21         (e)  Devise a plan to implement an "early warning

22  system" whereby:

23         1.  Sufficient and timely information would be provided

24  to the agency to enable "early warning signs" to be

25  identified.

26         2.  Agency staff could analyze and evaluate such

27  information and detect "early warning signs."

28         3.  Threshold levels of "early warning signs" would be

29  set to indicate the strong possibility of the existence of

30  conditions at a facility that could, directly or indirectly,

31  jeopardize the health, safety, or welfare of residents of the

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  1  facility, or which could require the inordinate expenditure of

  2  public resources to stave off such jeopardy.

  3         4.  When such "early warning signs" are found, the

  4  agency shall evaluate the level of threat to the residents of

  5  the facility or threat of an inordinate expenditure of public

  6  resources. Upon determination of the level of threat, the

  7  agency shall apply the appropriate level of intervention, such

  8  levels of intervention being graduated, such as:

  9         a.  Inspections or surveys.

10         b.  Documenting of deficiencies or violations

11  discovered.

12         c.  Consultation and advice for the facility from one

13  or more private or nonagency public consultants on a list of

14  consultants with sufficient expertise approved by the agency,

15  it being the intent of the Legislature that the agency itself

16  should not serve as a consultant with facilities because of

17  the inherent conflict with the agency's regulatory and

18  enforcement roles.

19         d.  Negotiation and implementation of consent orders

20  with corrective action plans with facilities.

21         e.  Incentives for facilities to enter into and comply

22  with such consent orders, such as agreement by the agency not

23  to pursue penalties or other disciplinary action for

24  identified and admitted existing deficiencies and violations,

25  so long as the terms of the consent order are complied with.

26         f.  Agency monitors stationed at the facility, at the

27  expense of the facility, to monitor and report progress on the

28  corrective actions.

29         g.  Enhanced penalties or other discipline.

30         h.  Expedited use by the agency of remedies such as

31  moratoria, injunctions, license suspensions or revocations,

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  1  federal sanctions, penalties, or receiverships, if the

  2  facility declines to enter into a consent order or if, at the

  3  sole discretion of the agency, conditions at the facility are

  4  such that a consent order with corrective action plan would

  5  most likely not produce the necessary improvements.

  6         i.  Other measures recommended by the agency.

  7         (f)  Propose language amending the Florida Statutes to

  8  enable the agency to carry out and implement the plan for an

  9  "early warning system."

10         Section 3.  Subsection (1) of section 400.022, Florida

11  Statutes, is amended to read:

12         400.022  Residents' rights.--

13         (1)  All licensees of nursing home facilities shall

14  adopt and post in a make public place a statement of the

15  rights and responsibilities of the residents of such

16  facilities and shall treat such residents in accordance with

17  the provisions of that statement. The State Long-Term Care

18  Ombudsman shall develop a user-friendly poster, suitable for

19  framing or mounting, that summarizes the residents' rights and

20  responsibilities listed in this section and that may be used

21  by facilities to meet this posting requirement. The statement

22  shall assure each resident the following:

23         (a)  The right to civil and religious liberties,

24  including knowledge of available choices and the right to

25  independent personal decision, which will not be infringed

26  upon, and the right to encouragement and assistance from the

27  staff of the facility in the fullest possible exercise of

28  these rights.

29         (b)  The right to private and uncensored communication,

30  including, but not limited to, receiving and sending unopened

31  correspondence, access to a telephone at all times, visiting

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  1  with any person of the resident's choice during visiting

  2  hours, and overnight visitation outside the facility with

  3  family and friends in accordance with facility policies,

  4  physician orders, and Title XVIII (Medicare) and Title XIX

  5  (Medicaid) of the Social Security Act regulations, without the

  6  resident's losing his or her bed. Facility visiting hours

  7  shall be flexible, taking into consideration special

  8  circumstances such as, but not limited to, out-of-town

  9  visitors and working relatives or friends.  Unless otherwise

10  indicated in the resident care plan, the licensee shall, with

11  the consent of the resident and in accordance with policies

12  approved by the agency, permit recognized volunteer groups,

13  representatives of community-based legal, social, mental

14  health, and leisure programs, and members of the clergy access

15  to the facility during visiting hours for the purpose of

16  visiting with and providing services to any resident. Facility

17  policies shall ensure the resident's right to communicate with

18  his or her legal representative and with public officials.

19         (c)  Any entity or individual that provides health,

20  social, legal, or other services to a resident has the right

21  to have reasonable access to the resident.  The resident has

22  the right to deny or withdraw consent to access at any time by

23  any entity or individual. Notwithstanding the visiting policy

24  of the facility, the following individuals must be permitted

25  immediate access to the resident:

26         1.  Any representative of the federal or state

27  government, including, but not limited to, representatives of

28  the Department of Children and Family Health and

29  Rehabilitative Services, the Agency for Health Care

30  Administration, the Attorney General's Office, and the

31  Department of Elderly Affairs; any law enforcement officer;

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  1  members of the state or district ombudsman council; and the

  2  resident's individual physician.

  3         2.  Subject to the resident's right to deny or withdraw

  4  consent, immediate family or other relatives of the resident.

  5

  6  The facility must allow representatives of the state Nursing

  7  Home and long-term care Facility ombudsman program Council to

  8  examine a resident's clinical records with the permission of

  9  the resident or the resident's legal representative and

10  consistent with state law.

11         (d)  The right to present grievances on behalf of

12  himself or herself or others to the staff or administrator of

13  the facility, to governmental officials, or to any other

14  person; to recommend changes in policies and services to

15  facility personnel; and to join with other residents or

16  individuals within or outside the facility to work for

17  improvements in resident care, free from restraint,

18  interference, coercion, discrimination, or reprisal. This

19  right includes access to ombudsmen and advocates and the right

20  to be a member of, to be active in, and to associate with

21  advocacy or special interest groups.  The right also includes

22  the right to prompt efforts by the facility to resolve

23  resident grievances, including grievances with respect to the

24  behavior of other residents.

25         (e)  The right to organize and participate in resident

26  groups in the facility and the right to have the resident's

27  family meet in the facility with the families of other

28  residents.

29         (f)  The right to participate in social, religious, and

30  community activities that do not interfere with the rights of

31  other residents.

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  1         (g)  The right to examine, upon reasonable request, the

  2  results of the most recent inspection of the facility

  3  conducted by a federal or state agency and any plan of

  4  correction in effect with respect to the facility.

  5         (h)  The right to manage his or her own financial

  6  affairs or to delegate such responsibility to the licensee,

  7  but only to the extent of the funds held in trust by the

  8  licensee for the resident. A quarterly accounting of any

  9  transactions made on behalf of the resident shall be furnished

10  to the resident or the person responsible for the resident.

11  The facility may not require a resident to deposit personal

12  funds with the facility.  However, upon written authorization

13  of a resident, the facility must hold, safeguard, manage, and

14  account for the personal funds of the resident deposited with

15  the facility as follows:

16         1.  The facility must establish and maintain a system

17  that ensures a full, complete, and separate accounting,

18  according to generally accepted accounting principles, of each

19  resident's personal funds entrusted to the facility on the

20  resident's behalf.

21         2.  The accounting system established and maintained by

22  the facility must preclude any commingling of resident funds

23  with facility funds or with the funds of any person other than

24  another resident.

25         3.  A quarterly accounting of any transaction made on

26  behalf of the resident shall be furnished to the resident or

27  the person responsible for the resident.

28         4.  Upon the death of a resident with personal funds

29  deposited with the facility, the facility must convey within

30  30 days the resident's funds, including interest, and a final

31  accounting of those funds, to the individual or probate

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  1  jurisdiction administering the resident's estate, or, if a

  2  personal representative has not been appointed within 30 days,

  3  to the resident's spouse or adult next of kin named in the

  4  beneficiary designation form provided for in s. 400.162(6).

  5         5.  The facility may not impose a charge against the

  6  personal funds of a resident for any item or service for which

  7  payment is made under Title XVIII or Title XIX of the Social

  8  Security Act.

  9         (i)  The right to be fully informed, in writing and

10  orally, prior to or at the time of admission and during his or

11  her stay, of services available in the facility and of related

12  charges for such services, including any charges for services

13  not covered under Title XVIII or Title XIX of the Social

14  Security Act or not covered by the basic per diem rates and of

15  bed reservation and refund policies of the facility. In

16  addition, the resident or his or her designee or legal

17  representative shall have the right, upon request, to be

18  provided with an itemized bill and a reasonable explanation

19  thereof, for any care, medication, supplies, or services

20  billed with respect to the resident not covered by the

21  facility's basic per diem rate, regardless of the source of

22  payment. This information shall include a statement of any

23  third-party payments made with respect to the bill. The

24  request for billing and reimbursement information may be

25  continuing in nature and need not be renewed on each occasion.

26         (j)  The right to be adequately informed of his or her

27  medical condition and proposed treatment, unless the resident

28  is determined to be unable to provide informed consent under

29  Florida law, or the right to be fully informed in advance of

30  any nonemergency changes in care or treatment that may affect

31  the resident's well-being; and, except with respect to a

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  1  resident adjudged incompetent, the right to participate in the

  2  planning of all medical treatment, including the right to

  3  refuse medication and treatment, unless otherwise indicated by

  4  the resident's physician; and to know the consequences of such

  5  actions.

  6         (k)  The right to refuse medication or treatment and to

  7  be informed of the consequences of such decisions, unless

  8  determined unable to provide informed consent under state law.

  9  The foregoing right includes the right to have a living will,

10  including a do-not-resuscitate order, that the facility must

11  follow when the living will or order is validly and legally

12  executed and the resident has been determined by two licensed

13  physicians to be in a terminal condition. When the resident

14  refuses medication or treatment, the nursing home facility

15  must notify the resident or the resident's legal

16  representative of the consequences of such decision and must

17  document the resident's decision in his or her medical record.

18  The nursing home facility must continue to provide other

19  services the resident agrees to in accordance with the

20  resident's care plan.

21         (l)  The right to receive adequate and appropriate

22  health care and protective and support services, including

23  social services; mental health services, if available; planned

24  recreational activities; and therapeutic and rehabilitative

25  services consistent with the resident care plan, with

26  established and recognized practice standards within the

27  community, and with rules as adopted by the agency. The

28  facility shall, to the extent possible, ensure good personal

29  hygiene for residents, to minimize the risk of infections and

30  bedsores; adopt measures to prevent or reduce incontinence in

31  residents and minimize the adverse effects of unavoidable

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  1  incontinence; and provide a nurse call system to summon

  2  assistance, with buttons or other activating mechanisms at

  3  critical locations.

  4         (m)  The right to proper contemporaneous documentation

  5  of the provision of medication, treatment, or other care in

  6  the resident's medical records as required by law.

  7         (n)  The right to refuse to serve as a research subject

  8  and to refuse any care or examination the primary purpose of

  9  which is educational or informative, rather than therapeutic.

10         (o)(m)  The right to have privacy in treatment and in

11  caring for personal needs; to close room doors and to have

12  facility personnel knock before entering the room, except in

13  the case of an emergency or unless medically contraindicated;

14  and to security in storing and using personal possessions.

15  Privacy of the resident's body shall be maintained during, but

16  not limited to, toileting, bathing, and other activities of

17  personal hygiene, except as needed for resident safety or

18  assistance.  Residents' personal and medical records shall be

19  confidential and exempt from the provisions of s. 119.07(1).

20         (p)(n)  The right to be treated courteously, fairly,

21  and with the fullest measure of dignity and to receive a

22  written statement and an oral explanation of the services

23  provided by the licensee, including those required to be

24  offered on an as-needed basis.

25         (q)(o)  The right to be free from mental and physical

26  abuse, corporal punishment, extended involuntary seclusion,

27  and from physical and chemical restraints, except those

28  restraints authorized in writing by a physician for a

29  specified and limited period of time or as are necessitated by

30  an emergency. In case of an emergency, restraint may be

31  applied only by a qualified licensed nurse who shall set forth

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  1  in writing the circumstances requiring the use of restraint,

  2  and, in the case of use of a chemical restraint, a physician

  3  shall be consulted immediately thereafter. Restraints may not

  4  be used in lieu of staff supervision or merely for staff

  5  convenience, for punishment, or for reasons other than

  6  resident protection or safety.

  7         (r)(p)  The right not to be transferred or discharged

  8  by the facility except for the reasons and under the

  9  procedures set forth in s. 400.0255. only for medical reasons

10  or for the welfare of other residents, and the right to be

11  given reasonable advance notice of no less than 30 days of any

12  involuntary transfer or discharge, except in the case of an

13  emergency as determined by a licensed professional on the

14  staff of the nursing home, or in the case of conflicting rules

15  and regulations which govern Title XVIII or Title XIX of the

16  Social Security Act.  For nonpayment of a bill for care

17  received, the resident shall be given 30 days' advance notice.

18  A licensee certified to provide services under Title XIX of

19  the Social Security Act may not transfer or discharge a

20  resident solely because the source of payment for care

21  changes, and the facility may not cite a lack of

22  Medicaid-certified beds as a reason for transfer or discharge

23  unless the facility has been denied permission by the agency

24  to add a vacant bed to the number of Medicaid-certified beds.

25  Admission to a nursing home facility operated by a licensee

26  certified to provide services under Title XIX of the Social

27  Security Act may not be conditioned upon a waiver of such

28  right, and any document or provision in a document which

29  purports to waive or preclude such right is void and

30  unenforceable.  Any licensee certified to provide services

31  under Title XIX of the Social Security Act that obtains or

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  1  attempts to obtain such a waiver from a resident or potential

  2  resident shall be construed to have violated the resident's

  3  rights as established herein and is subject to disciplinary

  4  action as provided in subsection (3).  The resident and the

  5  family or representative of the resident shall be consulted in

  6  choosing another facility.

  7         (s)(q)  The right to freedom of choice in selecting a

  8  personal physician; to obtain pharmaceutical supplies and

  9  services from a pharmacy of the resident's choice, at the

10  resident's own expense or through Title XIX of the Social

11  Security Act; and to obtain information about, and to

12  participate in, community-based activities programs, unless

13  medically contraindicated as documented by a physician in the

14  resident's medical record.  If a resident chooses to use a

15  community pharmacy and the facility in which the resident

16  resides uses a unit-dose system, the pharmacy selected by the

17  resident shall be one that provides a compatible unit-dose

18  system, provides service delivery, and stocks the drugs

19  normally used by long-term care residents.  If a resident

20  chooses to use a community pharmacy and the facility in which

21  the resident resides does not use a unit-dose system, the

22  pharmacy selected by the resident shall be one that provides

23  service delivery and stocks the drugs normally used by

24  long-term care residents. Any other law or rule

25  notwithstanding, a registered pharmacist acting on behalf of a

26  facility or resident shall be permitted to repackage

27  prescription medicine packaged by another pharmacist into a

28  unit-dose system compatible with the system used by the

29  facility, for administration to a resident, in order to

30  implement the resident's rights under this paragraph.

31

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  1         (t)(r)  The right to retain and use personal clothing

  2  and possessions as space permits, unless to do so would

  3  infringe upon the rights of other residents or unless

  4  medically contraindicated as documented in the resident's

  5  medical record by a physician.  If clothing is provided to the

  6  resident by the licensee, it shall be of reasonable fit. The

  7  facility shall establish policies and procedures to eliminate

  8  or greatly reduce theft and loss of residents' personal

  9  property, in accordance with s. 400.162 and rules of the

10  agency.

11         (u)(s)  The right to have copies of the rules and

12  regulations of the facility and an explanation of the

13  responsibility of the resident to obey all reasonable rules

14  and regulations of the facility and to respect the personal

15  rights and private property of the other residents.

16         (v)(t)  The right to receive 24 hours' written notice

17  before the room of the resident in the facility is changed.

18         (w)(u)  The right to be informed of the bed reservation

19  policy for a hospitalization.  The nursing home shall inform a

20  private-pay resident and his or her responsible party that his

21  or her bed will be reserved for any single hospitalization for

22  a period up to 30 days, provided the nursing home receives

23  reimbursement.  Any resident who is a recipient of assistance

24  under Title XIX of the Social Security Act, or the resident's

25  designee or legal representative, shall be informed by the

26  licensee that his or her bed will be reserved for any single

27  hospitalization for the length of time for which Title XIX

28  reimbursement is available, up to 8 15 days; but that the bed

29  will not be reserved if it is medically determined by the

30  agency that the resident will not need it or will not be able

31  to return to the nursing home, or if the agency determines

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  1  that the nursing home's occupancy rate ensures the

  2  availability of a bed for the resident. A written notice of

  3  the foregoing rights, as applicable, in a form to be

  4  promulgated or approved by the agency, Notice shall be

  5  provided within 24 hours of the hospitalization. A facility

  6  that has been reimbursed for reserving a bed and wrongfully

  7  refuses to readmit a resident within the prescribed time

  8  period shall refund the bed reservation compensation and shall

  9  be deemed to have violated the resident's rights under this

10  paragraph.

11         (x)(v)  For residents of Medicaid or Medicare certified

12  facilities, the right to challenge a decision by the facility

13  to discharge or transfer the resident, as required under s.

14  400.0255 and Title 42 C.F.R. part 483.12 483.13.

15         Section 4.  Section 400.0231, Florida Statutes, is

16  amended to read:

17         400.0231  Patient records; penalties for alteration.--

18         (1)  Every licensed facility shall keep complete and

19  accurate medical records for each resident, as provided by law

20  and by rules of the agency and the Department of Health.

21  Assessments of each resident's condition and the provision of

22  medication, treatment, therapy or other medical or skilled

23  nursing care shall be contemporaneously documented in the

24  resident's medical records. The absence of such documentation

25  of the provision of medication, treatment, or other care in

26  the resident's medical records creates a rebuttable

27  presumption that the medication, treatment, or other care was

28  not provided. This presumption shall apply in disciplinary

29  proceedings by the agency or other regulatory entity against

30  the licensee or a licensed health care provider and may, at

31  the court's discretion, apply in other actions to which the

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  1  resident is a party. This presumption may be rebutted by clear

  2  and convincing evidence.

  3         (2)(1)  Any person who fraudulently alters, defaces, or

  4  falsifies any medical or other nursing home record, or causes

  5  or procures any of these offenses to be committed, commits a

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

  7  775.082 or s. 775.083.

  8         (3)(2)  A conviction under subsection (2) (1) is also

  9  grounds for restriction, suspension, or termination of license

10  privileges.

11         Section 5.  Present subsections (1), (3), (4), and (6)

12  of section 400.0255, Florida Statutes, are amended,

13  subsections (2) through (12) are renumbered as subsections (4)

14  through (14), respectively, and new subsections (2) and (3)

15  are added to said section, to read:

16         400.0255  Resident hearings of facility decisions to

17  transfer or discharge.--

18         (1)  As used in this section:, the term

19         (a)  "Discharge" or "transfer" means the movement of a

20  resident to a bed outside the certified facility. "Discharge"

21  or "transfer" does not refer to the movement of a resident to

22  a bed within the same certified facility.

23         (b)  "Necessary for the resident's welfare" means that,

24  by objective criteria as provided in rules of the agency, the

25  resident's physical or emotional well-being would more likely

26  than not be harmed by remaining in the facility and receiving

27  adequate levels of care, which harm would be less likely to

28  occur if the resident were discharged or transferred.

29         (c)  "The resident's needs cannot be met in the

30  facility" means that the resident's medical condition has

31  changed to the extent that the resident now needs additional

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  1  or different treatments or advanced levels of care which the

  2  facility does not provide to any resident of the facility.

  3         (2)  A facility must permit each resident to remain in

  4  the facility, and may not discharge or transfer a resident

  5  from the facility, unless one or more of the following

  6  applies:

  7         (a)  The transfer or discharge is medically appropriate

  8  because the resident's health has improved sufficiently that

  9  the resident no longer needs the services provided by the

10  facility;

11         (b)  The transfer or discharge is necessary for the

12  resident's welfare and the resident's needs cannot be met in

13  the facility;

14         (c)  The safety of other individuals in the facility is

15  endangered;

16         (d)  The health of other individuals in the facility

17  would otherwise be endangered;

18         (e)  The resident has failed, after reasonable and

19  appropriate notice, to pay for, or to have paid for under

20  Medicare or Medicaid, a stay at the facility.  For a resident

21  who becomes eligible for Medicaid after admission to a

22  Medicaid-certified facility, the facility may charge a

23  resident only allowable charges under Medicaid; or

24         (f)  The facility ceases to operate. For purposes of

25  this subsection, "ceases to operate" means actual cessation of

26  nursing home operations and surrender of the facility's

27  license. Change of ownership, affiliation, management, or name

28  of a facility shall not constitute ceasing of operation.

29         (3)  When the facility transfers or discharges a

30  resident under any of the circumstances specified in

31  paragraphs (2)(a)-(e), the resident's medical or other record

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  1  must be so documented.  The documentation must be made by the

  2  resident's physician under the circumstances specified in

  3  paragraphs (2)(a) or paragraph (2)(b), or by any physician

  4  under the circumstances specified in paragraph (2)(d).

  5         (5)(3)  Except as provided in paragraphs (a) and (b),

  6  at least 30 days prior to any proposed transfer or discharge,

  7  a facility must provide advance notice of the proposed

  8  transfer or discharge to the resident and, if known, to a

  9  family member or the resident's legal guardian or

10  representative., except, in the following

11         (a)  In the circumstances listed in paragraph 2(a), or

12  if the resident has been a resident of the facility for fewer

13  than 30 days, at least 5 working days' advance notice must be

14  provided.

15         (b)  If the circumstances listed in paragraph (2)(b),

16  paragraph (2)(c), or paragraph (2)(d) constitute an emergency

17  as documented in the resident's medical records by the

18  resident's physician, or by the medical director if the

19  resident's physician is not available, the facility shall give

20  notice as soon as practicable before the transfer or

21  discharge.:

22         (a)  The transfer or discharge is necessary for the

23  resident's welfare and the resident's needs cannot be met in

24  the facility, and the circumstances are documented in the

25  resident's medical records by the resident's physician; or

26         (b)  The health or safety of other residents or

27  facility employees would be endangered, and the circumstances

28  are documented in the resident's medical records by the

29  resident's physician or the medical director if the resident's

30  physician is not available.

31

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  1         (6)(4)  The notice required by subsection (5) (3) must

  2  be in writing and must contain all information required by

  3  state and federal law, rules, or regulations applicable to

  4  Medicaid or Medicare cases.  A copy of the notice must be

  5  placed in the resident's clinical record, and a copy must be

  6  transmitted to the resident's legal guardian or representative

  7  and to the local district ombudsman council. The agency shall

  8  by rule promulgate a standard form or forms of notice of

  9  transfer or discharge, which shall be used by all facilities

10  unless a facility's own form has been submitted to and

11  approved by the agency.

12         (8)(6)  Notwithstanding paragraph (7)(b) (5)(b), an

13  emergency discharge or transfer may be implemented as

14  necessary pursuant to state or federal law during the period

15  of time after the notice is given and before the time a

16  hearing decision is rendered.  Notice of an emergency

17  discharge or transfer to the resident's legal guardian or

18  representative must be by telephone or in person.  This notice

19  shall be given before the transfer, if possible, or as soon

20  thereafter as practicable.  The resident's file must be

21  documented to show who was contacted, whether the contact was

22  by telephone or in person, and the date and time of the

23  contact.  If the notice is not given in writing, written

24  notice meeting the requirements of subsection (6) (4) must be

25  given the next working day.

26         Section 6.  Subsection (1) of section 400.063, Florida

27  Statutes, is amended to read:

28         400.063  Resident Protection Trust Fund.--

29         (1)  A Resident Protection Trust Fund shall be

30  established for the purpose of collecting and disbursing funds

31  generated from the license fees and administrative fines as

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

  2  400.121(2), and 400.23(10)(9).  Such funds shall be for the

  3  sole purpose of paying for the appropriate alternate

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

  5  from a facility licensed under this part or a facility

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

  7  that existing conditions or practices constitute an immediate

  8  danger to the health, safety, or security of the residents.

  9  If the agency determines that it is in the best interest of

10  the health, safety, or security of the residents to provide

11  for an orderly removal of the residents from the facility, the

12  agency may utilize such funds to maintain and care for the

13  residents in the facility pending removal and alternative

14  placement.  The maintenance and care of the residents shall be

15  under the direction and control of a receiver appointed

16  pursuant to s. 393.0678(1) or s. 400.126(1).  However, funds

17  may be expended in an emergency upon a filing of a petition

18  for a receiver, upon the declaration of a state of local

19  emergency pursuant to s. 252.38(3)(a)5., or upon a duly

20  authorized local order of evacuation of a facility by

21  emergency personnel to protect the health and safety of the

22  residents.

23         Section 7.  Subsections (6) and (7) are added to

24  section 400.121, Florida Statutes, 1998 Supplement, to read:

25         400.121  Denial, suspension, revocation of license;

26  moratorium on admissions; administrative fines; procedure.--

27         (6)  Any fine or civil penalty or recovery of costs

28  imposed by or awarded to the agency under this part may be

29  collected by the agency as a setoff from amounts otherwise

30  payable by the state to the facility under the Florida

31  Medicaid program or any other program by which the agency

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  1  makes payments to the facility.  The collection method set

  2  forth in this subsection shall be supplemental to any other

  3  method which the agency may lawfully utilize.

  4         (7)  Administrative proceedings challenging agency

  5  action under this section shall be reviewed on the basis of

  6  the facts and conditions that resulted in the agency action.

  7         Section 8.  Subsection (2) of section 400.151, Florida

  8  Statutes, is renumbered as subsection (3), and a new

  9  subsection (2) is added to said section to read:

10         400.151  Contracts.--

11         (2)  Every licensed facility shall submit the form of

12  its contract or contracts with residents to the agency for

13  approval.  The agency shall reject any contract which contains

14  language which is vague, misleading, illegal, or against

15  public policy as set forth in the Florida Statutes or federal

16  laws or regulations, and the facility shall submit revised

17  contracts which cure the deficiencies found by the agency. If

18  a facility is part of a continuing care facility certified

19  under chapter 651, the review and approval of the contract or

20  contracts shall be completed by the Department of Insurance,

21  which shall consult with the agency regarding portions of

22  contracts related to nursing home care. Beginning 1 year after

23  the effective date of this subsection, a facility may not

24  enter into a contract, renew a contract, or enforce a contract

25  with a resident unless the form of the contract has been

26  approved by the agency. Any contract submitted for review

27  shall be deemed approved if the reviewing agency has not

28  rejected it within 180 days after its submission, unless the

29  facility waives this provision. However, contracts which were

30  fully entered into prior to the effective date of this act and

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  1  which have not been amended or renewed subsequent thereto need

  2  not be reviewed and approved pursuant to this subsection.

  3         Section 9.  Subsection (3) of section 400.162, Florida

  4  Statutes, is amended to read:

  5         400.162  Property and personal affairs of residents.--

  6         (3)  A licensee shall provide for the safekeeping of

  7  personal effects, funds, and other property of the resident in

  8  the facility.  Whenever necessary for the protection of

  9  valuables, or in order to avoid unreasonable responsibility

10  therefor, the licensee may require that such valuables be

11  excluded or removed from the facility and kept at some place

12  not subject to the control of the licensee. The facility's

13  policies regarding the safekeeping of a resident's property

14  pursuant to s. 400.022(1)(t) shall comply with rules of the

15  agency and shall, at a minimum, provide for:

16         1.  An inventory of a resident's personal property upon

17  admission to the facility, to be updated when the resident

18  disposes of old property or acquires new property. The types

19  of items to be included in the inventory shall be determined

20  by agency rule.

21         2.  Marking each resident's personal property with

22  identification numbers, with the resident's permission, where

23  feasible without defacing the item or reducing the property's

24  value.

25         3.  Securing residents' personal property.

26         4.  Documenting any theft or loss of personal property.

27         5.  Reporting to law enforcement any theft or loss of

28  property worth $100 or more.

29         6.  Instructing facility staff regarding policies and

30  procedures to reduce theft and loss of residents' personal

31  property.

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  1         7.  Periodic review of these policies and procedures

  2  for effectiveness, and revision if necessary.

  3         8.  Posting notice of these policies and procedures,

  4  and any revision thereof, in places accessible to residents.

  5         Section 10.  Present subsections (4), (6), (8), (9),

  6  and (10) of section 400.23, Florida Statutes, 1998 Supplement,

  7  are amended, subsections (3) through (13) are renumbered as

  8  subsections (4) through (14), respectively, and a new

  9  subsection (3) is added to said section, to read:

10         400.23  Rules; criteria; Nursing Home Advisory

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

12  plans.--

13         (3)  The agency shall adopt rules providing the minimum

14  staffing requirements for nursing homes.  These requirements

15  shall include, for each nursing home facility:

16         (a)  One full-time licensed or registered nurse as

17  director of nursing.

18         (b)  For facilities serving more than 100 residents,

19  one licensed or registered nurse as assistant director of

20  nursing.

21         (c)  One full-time licensed or registered nurse as

22  director of inservice education.

23         (d)  The following number of licensed or certified

24  nursing personnel, including registered nurses, licensed

25  practical nurses, and certified nursing assistants, for every

26  day, by shift:

27         1.  Day shift:  one nurse or nursing assistant for

28  every five residents.

29         2.  Evening shift:  one nurse or nursing assistant for

30  every 10 residents.

31

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  1         3.  Night shift:  one nurse or nursing assistant for

  2  every 15 residents.

  3         (e)  The following number of registered nurses or

  4  licensed practical nurses, in addition to the licensed or

  5  certified nursing personnel required under paragraph (d), for

  6  every day, by shift:

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

  8         2.  Evening shift:  one nurse for every 25 residents.

  9         3.  Night shift:  one nurse for every 35 residents.

10         (f)  One registered nurse supervisor on duty 24 hours

11  every day.

12

13  The agency's rules shall provide that facilities that do not

14  utilize three 8-hour shifts per day shall maintain staffing

15  levels equivalent to or better than the levels set forth in

16  paragraphs (d) and (e). The agency's rules shall further

17  provide that the staffing requirements provided in this

18  subsection apply to all nursing home residents, including

19  respite care residents, and must be adjusted upward to meet

20  any special care needs of residents; and that staffing

21  assignments must be made based on accurate acuity levels and

22  the resources and time needed to provide safe, preventive, and

23  restorative care.  The requirements provided in this

24  subsection must be enforced for all residents, regardless of

25  payment source.  No ongoing waivers shall be allowed. The

26  agency's rules shall further provide that each facility shall

27  keep records showing the names, registration or certification

28  status (e.g., RN, ARNP, LPN, CNA, MD), and assignment of

29  facility staff or contract personnel actually on duty at the

30  facility during each shift, together with documentation of any

31  instances in which such actual staffing falls short of the

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  1  minimum staffing levels required by agency rules pursuant to

  2  this subsection.  Each facility shall report to the agency, no

  3  less often than monthly, in a form prescribed by agency rules,

  4  a summary of instances in which actual staffing levels at the

  5  facility fell short of the prescribed minimum staffing levels.

  6         (5)(4)  The agency, in collaboration with the Division

  7  of Children's Medical Services Program Office of the

  8  Department of Health and Rehabilitative Services, must, no

  9  later than December 31, 1993, adopt rules for minimum

10  standards of care for persons under 21 years of age who reside

11  in nursing home facilities.  The rules must include a

12  methodology for reviewing a nursing home facility under ss.

13  408.031-408.045 which serves only persons under 21 years of

14  age.

15         (7)(6)  There is created the Nursing Home Advisory

16  Committee, which shall consist of 16 15 members who are to be

17  appointed by and report directly to the director of the

18  agency. The membership is to include:

19         (a)  One researcher from a university center on aging.

20         (b)  Two representatives from the Florida Health Care

21  Association.

22         (c)  Two representatives from the Florida Association

23  of Homes for the Aging.

24         (d)  One representative from the Department of Elderly

25  Affairs.

26         (e)  Six Five consumer members representatives, at

27  least two of whom serve on or are staff members of the state

28  or a district nursing home and long-term care Facility

29  ombudsman council, and at least one of whom is a

30  representative of the Florida Life Care Resident's

31  Association.

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  1         (f)  One representative from the Florida American

  2  Medical Directors Association.

  3         (g)  One representative from the Florida Association of

  4  Directors of Nursing Administrators.

  5         (h)  One representative from the Agency for Health Care

  6  Administration.

  7         (i)  One representative from the nursing home industry

  8  at large who owns or operates a licensed nursing home facility

  9  in the state and is not a member of any state nursing home

10  association.

11

12  At least one member shall be over 60 years of age.

13         (9)(8)  The agency shall, at least every 15 months,

14  evaluate all nursing home facilities and make a determination

15  as to the degree of compliance by each licensee with the

16  established rules adopted under this part as a basis for

17  assigning a rating to that facility.  The agency shall base

18  its evaluation on the most recent inspection report, taking

19  into consideration findings from other official reports,

20  surveys, interviews, investigations, and inspections.  The

21  agency shall assign one of the following ratings to each

22  nursing home: standard, conditional, or superior. The agency

23  shall have the authority to downgrade the rating of a facility

24  upon finding that the facility no longer qualifies for its

25  present rating, and shall issue an amended license showing the

26  new rating.  Likewise, when a facility's rating is upgraded,

27  the agency shall issue an amended license showing the new

28  rating. The new rating on an amended license shall not be

29  retroactive to the beginning of the licensing period.

30         (a)  A standard rating means that a facility has no

31  class I or class II deficiencies, has corrected all class III

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  1  deficiencies within the time established by the agency, and is

  2  in substantial compliance at the time of the survey with

  3  criteria established under this part, with rules adopted by

  4  the agency, and, if applicable, with rules adopted under the

  5  Omnibus Budget Reconciliation Act of 1987 (Pub. L. No.

  6  100-203) (December 22, 1987), Title IV (Medicare, Medicaid,

  7  and Other Health-Related Programs), Subtitle C (Nursing Home

  8  Reform), as amended.

  9         (b)  A conditional rating means that a facility, due to

10  the presence of one or more class I or class II deficiencies,

11  or class III deficiencies not corrected within the time

12  established by the agency, is not in substantial compliance at

13  the time of the survey with criteria established under this

14  part, with rules adopted by the agency, or, if applicable,

15  with rules adopted under the Omnibus Budget Reconciliation Act

16  of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV

17  (Medicare, Medicaid, and Other Health-Related Programs),

18  Subtitle C (Nursing Home Reform), as amended.  If the facility

19  comes into substantial compliance at the time of the followup

20  survey, a standard rating may be issued.  A facility assigned

21  a conditional rating at the time of the relicensure survey may

22  not qualify for consideration for a superior rating until the

23  time of the next subsequent relicensure survey.

24         (c)  To qualify for a superior rating, means that a

25  facility must have had has no class I or class II deficiencies

26  within the preceding 2 years, must not have been rated

27  conditional within the preceding 2 years, must have had no

28  more than 10 class III deficiencies within the preceding 2

29  years, and must have has corrected all class III deficiencies

30  within the time established by the agency and be is in

31  substantial compliance with the criteria established under

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  1  this part and the rules adopted by the agency and, if

  2  applicable, with rules adopted pursuant to the Omnibus Budget

  3  Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22,

  4  1987), Title IV (Medicare, Medicaid, and Other Health-Related

  5  Programs), Subtitle C (Nursing Home Reform), as amended; and

  6  the facility must exceed exceeds the criteria for a standard

  7  rating through enhanced programs and services in all of the

  8  following areas:

  9         1.  Nursing service.

10         2.  Dietary or nutritional services.

11         3.  Physical environment.

12         4.  Housekeeping and maintenance.

13         5.  Restorative therapies and self-help activities.

14         6.  Social services.

15         7.  Activities and recreational therapy.

16         (d)  In order to facilitate the development of special

17  programs or facilitywide initiatives and promote creativity

18  based on the needs and preferences of residents, the areas

19  listed in paragraph (c) may be grouped or addressed

20  individually by the licensee.  However, a facility may not

21  qualify for a superior rating if fewer than three programs or

22  initiatives are developed to encompass the required areas or

23  if standard measurements, approved by the agency, of patient

24  outcomes and resident satisfaction for the facility are below

25  the statewide average for facilities of its type.

26         (e)  In determining the rating and evaluating the

27  overall quality of care and services, the agency shall

28  consider the needs and limitations of residents in the

29  facility and the results of interviews and surveys of a

30  representative sampling of residents, families of residents,

31  ombudsman council members in the district in which the

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  1  facility is located, guardians of residents, and staff of the

  2  nursing home facility.

  3         (f)  The current rating of each facility must be

  4  indicated in bold print on the face of the license.  A list of

  5  the deficiencies of the facility shall be posted in a

  6  prominent place that is in clear and unobstructed public view

  7  at or near the place where residents are being admitted to

  8  that facility. Licensees receiving a conditional rating for a

  9  facility shall prepare, within 10 working days after receiving

10  notice of deficiencies, a plan for correction of all

11  deficiencies and shall submit the plan to the agency for

12  approval. Correction of all deficiencies, within the period

13  approved by the agency, shall result in termination of the

14  conditional rating.  Failure to correct the deficiencies

15  within a reasonable period approved by the agency shall be

16  grounds for the imposition of sanctions pursuant to this part.

17         (g)  Each licensee shall post its license in a

18  prominent place that is in clear and unobstructed public view

19  at or near the place where residents are being admitted to the

20  facility.  A licensee with a superior rating may advertise its

21  rating in any nonpermanent medium and in accordance with rules

22  adopted by the agency.  A list of the facilities receiving a

23  superior rating shall be distributed to the state and district

24  ombudsman councils.

25         (h)  Not later than January 1, 1994, the agency shall

26  adopt rules that:

27         1.  Establish uniform procedures for the evaluation of

28  facilities.

29         2.  Provide criteria in the areas referenced in

30  paragraph (c).

31

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  1         3.  Address other areas necessary for carrying out the

  2  intent of this section.

  3         (i)  A license rated superior shall continue until it

  4  is replaced by a rating based on a later survey.  A superior

  5  rating may be revoked at any time for failure to maintain

  6  substantial compliance with criteria established under this

  7  part, with rules adopted by the agency, or, if applicable,

  8  with rules adopted under the Omnibus Budget Reconciliation Act

  9  of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV

10  (Medicare, Medicaid, and Other Health-Related Programs),

11  Subtitle C (Nursing Home Reform), as amended, or for failure

12  to exceed the criteria specified for any area as listed in

13  paragraph (c).

14         (j)  A superior rating is not transferable to another

15  license, except when an existing facility is being relicensed

16  in the name of an entity related to the current licenseholder

17  by common ownership or control and there will be no change in

18  the management, operation, or programs at the facility as a

19  result of the relicensure.

20         (10)(9)  The agency shall adopt rules to provide that,

21  when the criteria established under subsections subsection (2)

22  and (3) are not met, such deficiencies shall be classified

23  according to the nature of the deficiency.  The agency shall

24  indicate the classification on the face of the notice of

25  deficiencies as follows:

26         (a)  Class I deficiencies are those which the agency

27  determines present an imminent danger to the residents or

28  guests of the nursing home facility or a substantial

29  probability that death or serious physical harm would result

30  therefrom.  The condition or practice constituting a class I

31  violation shall be abated or eliminated immediately, unless a

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  1  fixed period of time, as determined by the agency, is required

  2  for correction. Notwithstanding s. 400.121(2), a class I

  3  deficiency is subject to a civil penalty in an amount not less

  4  than $5,000 and not exceeding $25,000 $10,000 for each and

  5  every deficiency. A fine may be levied notwithstanding the

  6  correction of the deficiency. For purposes of the rating

  7  system under subsection (9), a confirmed report of abuse,

  8  neglect, or exploitation under chapter 415 of a resident by

  9  the facility or an employee or contractor of the facility, or

10  a conviction or plea of guilty or nolo contendere under s.

11  825.102, s. 825.1025, or s. 825.103 of the facility or an

12  employee or contractor of the facility wherein the victim was

13  a resident of the facility, shall be treated as a class I

14  deficiency if not also the subject of an agency disciplinary

15  proceeding.

16         (b)  Class II deficiencies are those which the agency

17  determines have a direct or immediate relationship to the

18  health, safety, or security of the nursing home facility

19  residents, other than class I deficiencies.  A class II

20  deficiency is subject to a civil penalty in an amount not less

21  than $1,000 and not exceeding $10,000 $5,000 for each and

22  every deficiency.  A citation for a class II deficiency shall

23  specify the time within which the deficiency is required to be

24  corrected.  If a class II deficiency is corrected within the

25  time specified, no civil penalty shall be imposed, unless it

26  is a repeated offense. For purposes of the rating system under

27  subsection (9), a conviction or plea of guilty or nolo

28  contendere of a facility or a facility administrator for one

29  or more violations of  s. 409.920(2) shall be treated as a

30  class II deficiency if not also the subject of an agency

31  disciplinary proceeding. For purposes of the rating system

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  1  under subsection (9), wrongful transfer or discharge of a

  2  resident in violation of s. 400.0255, or wrongful refusal to

  3  permit a resident to return to a reserved bed in violation of

  4  s. 400.022(1)(w), shall be treated as a class II deficiency.

  5         (c)  Class III deficiencies are those which the agency

  6  determines to have an indirect or potential relationship to

  7  the health, safety, or security of the nursing home facility

  8  residents, other than class I or class II deficiencies.  A

  9  class III deficiency shall be subject to a civil penalty of

10  not less than $500 and not exceeding $2,500 $1,000 for each

11  and every deficiency.  A citation for a class III deficiency

12  shall specify the time within which the deficiency is required

13  to be corrected.  If a class III deficiency is corrected

14  within the time specified, no civil penalty shall be imposed,

15  unless it is a repeated offense.

16         (d)  Each day during any portion of which a violation

17  occurs constitutes a separate offense.  More than three

18  violations of the same class shall be treated as repeated

19  offenses if committed within 2 years of one another.  If a

20  facility has three or more repeat offenses within 1 year, the

21  civil penalties for the third and subsequent offenses shall be

22  double the amounts listed in paragraphs (a), (b), and (c).

23         (11)(10)  Civil penalties paid by any licensee under

24  subsection (10) (9) shall be deposited in the Resident

25  Protection Health Care Trust Fund and expended as provided in

26  s. 400.063.

27         Section 11.  Subsection (3) of section 400.241, Florida

28  Statutes, is renumbered as subsection (4), and a new

29  subsection (3) is added to said section to read:

30         400.241  Prohibited acts; penalties for violations.--

31

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  1         (3)  It is unlawful for any person, long-term care

  2  facility, or other entity to willfully interfere with the

  3  unannounced inspections mandated by s. 400.19(3). Alerting or

  4  advising a facility of the actual or approximate date of any

  5  such inspection shall be a per se violation of this

  6  subsection.

  7         (4)(3)  A violation of any provision of this part or of

  8  any minimum standard, rule, or regulation adopted pursuant

  9  thereto constitutes a misdemeanor of the second degree,

10  punishable as provided in s. 775.082 or s. 775.083.  Each day

11  of a continuing violation shall be considered a separate

12  offense.

13         Section 12.  Section 400.29, Florida Statutes, is

14  amended to read:

15         400.29  Annual report of nursing home facilities.--The

16  agency shall publish a nursing home an annual report on or

17  before January 1 of each year, and shall update the

18  information therein no less than monthly, making such updated

19  information available to the public on the Internet or other

20  speedy and inexpensive electronic means of public access. The

21  report and the monthly updates which shall be available to the

22  public in printed form for free or at a cost no greater than

23  the cost of copying and postage. The report and which shall

24  include, but not be limited to:

25         (1)  A list by name and address of all nursing home

26  facilities in this state.

27         (2)  Whether such nursing home facilities are for

28  profit or not for profit proprietary or nonproprietary.

29         (3)  The rating of each nursing home facility.

30

31

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  1         (4)  The name of the owner or owners, including the

  2  commonly used name of a chain or holding company that

  3  ultimately owns the facility, if applicable.

  4         (5)  The name of the management company managing or

  5  administering the facility, if applicable.

  6         (6)(5)  The total number of beds.

  7         (7)(6)  The number of private and semiprivate rooms.

  8         (8)(7)  The religious affiliation, if any, of such

  9  nursing home facility.

10         (9)(8)  The languages spoken by the administrator and

11  staff of such nursing home facility.

12         (10)(9)  Whether or not such nursing home facility

13  accepts recipients of Title XVIII (Medicare) or Title XIX

14  (Medicaid) of the Social Security Act.

15         (11)(10)  Recreational and other programs available.

16         (12)  The facility's scores on standard measurements of

17  patient outcomes and resident satisfaction within the

18  preceding 12 month or since the current license was issued,

19  whichever period is longer.

20         (13)  A list of all services offered by the facility

21  and the fees or prices charged by the facility.

22         (14)  A summary of all official adverse findings

23  relating to the facility within the past 12 months, including,

24  but not limited to:

25         (a)  Class I, II, or III deficiencies found by the

26  agency.

27         (b)  Confirmed reports of abuse, neglect, or

28  exploitation under chapter 415, wherein the victim was a

29  resident of the facility and the perpetrator was the facility

30  or an employee or contractor of the facility.

31

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  1         (c)  Convictions or pleas of guilty or nolo contendere

  2  of the facility, the facility administrator, or an officer of

  3  the facility for any violation of s. 409.920(2).

  4         (d)  Convictions or pleas of guilty or nolo contendere

  5  of the facility or an employee or contractor of the facility

  6  under s. 825.102, s. 825.1025, or s. 825.103, wherein the

  7  victim was a resident of the facility.

  8         (e)  Convictions or pleas of guilty or nolo contendere

  9  of the facility or an employee or contractor of the facility

10  under s. 400.0083 or s. 400.0085.

11         (f)  Final judgments from courts of this state wherein

12  the facility or an employee or contractor of the facility has

13  been found to have violated a resident's rights under s.

14  400.023.

15         Section 13.  Subsection (6) of section 415.107, Florida

16  Statutes, 1998 Supplement, is amended to read:

17         415.107  Confidentiality of reports and records.--

18         (6)  The identity of any person reporting adult abuse,

19  neglect, or exploitation may not be released, without that

20  person's written consent, to any person other than employees

21  of the department responsible for adult protective services,

22  the central abuse registry and tracking system, or the

23  appropriate state attorney or law enforcement agency,

24  including the Attorney General's Medicaid Fraud Control Unit.

25  This subsection grants protection only for the person who

26  reported the adult abuse, neglect, or exploitation and

27  protects only the fact that the person is the reporter. This

28  subsection does not prohibit the subpoena of a person

29  reporting adult abuse, neglect, or exploitation when deemed

30  necessary by the state attorney or the department to protect a

31  disabled adult or an elderly person who is the subject of a

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  1  report, if the fact that the person made the report is not

  2  disclosed.

  3         Section 14.  Paragraphs (w) through (cc) of subsection

  4  (2) of section 435.03, Florida Statutes, are redesignated as

  5  paragraphs (x) through (dd), respectively, and a new paragraph

  6  (w) is added to said section to read:

  7         435.03  Level 1 screening standards.--

  8         (2)  Any person for whom employment screening is

  9  required by statute must not have been found guilty of,

10  regardless of adjudication, or entered a plea of nolo

11  contendere or guilty to, any offense prohibited under any of

12  the following provisions of the Florida Statutes or under any

13  similar statute of another jurisdiction:

14         (w)  Section 825.1035, relating to abuse, neglect, or

15  exploitation of a nursing home resident.

16         Section 15.  Paragraphs (w) through (cc) of subsection

17  (2) of section 435.04, Florida Statutes, are redesignated as

18  paragraphs (x) through (dd), respectively, and a new paragraph

19  (w) is added to said subsection to read:

20         435.04  Level 2 screening standards.--

21         (2)  The security background investigations under this

22  section must ensure that no persons subject to the provisions

23  of this section have been found guilty of, regardless of

24  adjudication, or entered a plea of nolo contendere or guilty

25  to, any offense prohibited under any of the following

26  provisions of the Florida Statutes or under any similar

27  statute of another jurisdiction:

28         (w)  Section 825.1035, relating to abuse, neglect, or

29  exploitation of a nursing home resident.

30         Section 16.  Section 825.1035, Florida Statutes, is

31  created to read:

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  1         825.1035  Report of abuse, neglect, or exploitation of

  2  nursing home residents required; penalty.--An employee of a

  3  nursing home facility as defined in part II of chapter 400,

  4  including any contractor or consultant working for such a

  5  facility, shall report to law enforcement any known abuse,

  6  neglect, or exploitation of an elderly person or disabled

  7  adult committed upon a resident of the facility in violation

  8  of ss. 825.101-825.103. This report shall be in addition to

  9  any report of abuse, neglect, or exploitation made to the

10  central abuse hotline of the Department of Children and Family

11  Services pursuant to the requirements of chapter 415. An

12  employee of a nursing home facility who fails to make the

13  report required by this section commits a misdemeanor of the

14  second degree, punishable as provided in s. 775.082 or s.

15  775.083.

16         Section 17.  Paragraph (b) of subsection (1) of ection

17  394.4625, Florida Statutes, is amended to read:

18         394.4625  Voluntary admissions.--

19         (1)  AUTHORITY TO RECEIVE PATIENTS.--

20         (b)  A mental health overlay program or a mobile crisis

21  response service or a licensed professional who is authorized

22  to initiate an involuntary examination pursuant to s. 394.463

23  and is employed by a community mental health center or clinic

24  must, pursuant to district procedure approved by the

25  respective district administrator, conduct an initial

26  assessment of the ability of the following persons to give

27  express and informed consent to treatment before such persons

28  may be admitted voluntarily:

29         1.  A person 60 years of age or older for whom transfer

30  is being sought from a nursing home, assisted living facility,

31

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  1  adult day care center, or adult family-care home, when such

  2  person has been diagnosed as suffering from dementia.

  3         2.  A person 60 years of age or older for whom transfer

  4  is being sought from a nursing home pursuant to s.

  5  400.0255(8)(6).

  6         3.  A person for whom all decisions concerning medical

  7  treatment are currently being lawfully made by the health care

  8  surrogate or proxy designated under chapter 765.

  9         Section 18.  There is hereby appropriated from the

10  Health Care Trust Fund to the Department of Elderly Affairs

11  for fiscal year 1999-2000 the sum of $30,000 to enable the

12  Office of the State Long-Term Care Ombudsman to establish a

13  statewide toll-free telephone service.

14         Section 19.  This act shall take effect October 1,

15  1999.

16

17

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






    Florida House of Representatives - 1999                 HB 651

    537-262E-99






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  2                          HOUSE SUMMARY

  3
      Creates the "Bob Byram Nursing Home Care Reform Act."
  4    Requires the Agency for Health Care Administration to
      perform studies and make recommendations to the
  5    Legislature. Revises rights of nursing home residents and
      provides additional rights. Requires facilities to keep
  6    complete and accurate medical records and provides a
      rebuttable presumption, in the absence of such records,
  7    that care or treatment was not provided. Provides
      definitions and requirements relating to transfer or
  8    discharge of residents. Authorizes payment of facility
      fines or recovery costs using setoffs from amounts
  9    payable to the facility by the state. Requires agency
      approval of the form of facility contracts with
10    residents, except in specified circumstances. Provides
      minimum requirements for policies regarding the
11    safekeeping of residents' property. Provides for minimum
      staffing requirements, recordkeeping therefor, and
12    reports of staffing shortfalls. Revises ratings
      requirements, provides additional acts classified as
13    deficiencies, provides penalties and increases maximum
      fines, and requires issuance of amended licenses
14    reflecting facility ratings changes. Prohibits willful
      interference with unannounced required inspections of a
15    facility, and provides a penalty. Requires inclusion of
      information on facility services, fees, and deficiencies
16    in the agency's annual report. Requires the report and
      monthly updates to be made available to the public.
17    Requires nursing home employees to report known abuse,
      neglect, or exploitation of a resident to law
18    enforcement, provides a penalty for failure to report,
      and provides for background employment screening of
19    person convicted of this offense. Provides an
      appropriation for a statewide toll-free telephone service
20    under the Office of the State Long-Term Care Ombudsman.

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24                       ADDITIONAL SPONSORS

25  Turnbull, Betancourt, Boyd, Wallace, Henriquez, Feeney,
    Fuller, Diaz de la Portilla, C. Green, Rojas, Patterson,
26  Russell, Fiorentino, Hart and Lacasa

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