Senate Bill 0834
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Florida Senate - 1999 SB 834
By the Committee on Health, Aging and Long-Term Care
317-399C-99
1 A bill to be entitled
2 An act relating to nursing homes; amending s.
3 400.0060, F.S.; providing definitions relating
4 to the Long-Term Care Ombudsman Program;
5 defining the term "conflict of interest";
6 amending s. 400.0061, F.S.; providing for
7 inspections of long-term care facilities rather
8 than administrative inspections; amending s.
9 400.0065, F.S.; conforming provisions to
10 reflect the transfer of regulatory authority
11 from the Department of Health and
12 Rehabilitative Services to the Department of
13 Children and Family Services; revising
14 provisions that prohibit certain conduct that
15 could create a conflict of interest; amending
16 s. 400.0067, F.S., relating to the State
17 Long-Term Care Ombudsman Council; conforming
18 provisions to reflect the transfer of
19 regulatory authority; conforming provisions to
20 a change in inspection requirements for
21 long-term care facilities; revising
22 requirements for contents of the annual report
23 prepared by the council; deleting obsolete
24 dates; deleting obsolete provisions with
25 respect to the initial appointments to the
26 council; amending s. 400.0069, F.S., relating
27 to district long-term care ombudsman councils;
28 revising provisions to reflect the transfer of
29 regulatory authority; conforming provisions to
30 a change in inspection requirements for
31 long-term care facilities; expanding the
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1 authority for ombudsman to review personal
2 property and money accounts of residents of
3 long-term care facilities; providing for state
4 agencies to require the attendance of agency
5 representatives at council meetings when
6 requested; amending s. 400.0071, F.S., relating
7 to complaint procedures; deleting obsolete
8 provisions; amending s. 400.0073, F.S.;
9 clarifying requirements for inspections of
10 long-term care facilities by a district
11 ombudsman council; requiring the district
12 ombudsman to report to the adult protective
13 services program actions or conduct of a
14 long-term care facility which threatens a
15 resident of the facility; amending s. 400.0075,
16 F.S.; requiring that the district ombudsman
17 council seek certain remedies upon determining
18 that a resident of a long-term care facility is
19 in imminent danger; requiring that the district
20 ombudsman council refer certain complaints to
21 the Agency for Health Care Administration;
22 requiring that the agency immediately
23 investigate certain complaints; providing for
24 the state ombudsman council to publicize
25 certain recommendations and administrative
26 actions; deleting obsolete provisions;
27 providing for certain complaints to be referred
28 to the Medicaid Fraud Control Unit of the
29 Office of the Attorney General; amending s.
30 400.0081, F.S.; providing for the state
31 long-term care ombudsman and state and district
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1 ombudsman council members to have access to
2 certain records of a long-term care facility;
3 amending s. 400.0089, F.S., relating to agency
4 reports; conforming provisions to reflect the
5 transfer of regulatory authority; amending s.
6 400.0091, F.S., relating to the training of
7 ombudsman employees; deleting an obsolete date;
8 amending s. 400.021, F.S.; redefining the term
9 "department" to reflect the transfer of
10 regulatory authority from the Department of
11 Health and Rehabilitative Services to the
12 Department of Children and Family Services;
13 amending s. 400.022, F.S., relating to rights
14 of nursing home residents; conforming
15 provisions; requiring written notice before a
16 room change; authorizing a room change without
17 written notice to a resident for medically
18 necessary care following consultation with the
19 medical director of the facility or the
20 resident's attending physician; providing for
21 the resident to refuse a room change for
22 medically necessary care; conforming a
23 cross-reference; amending s. 400.0255, F.S.;
24 defining the terms "discharge" and "transfer";
25 requiring that nursing homes comply with
26 certain discharge or transfer procedures;
27 requiring the nursing home administrator or a
28 designee of the administrator to sign notices
29 of discharge or transfer; requiring that a
30 facility notify the Agency for Health Care
31 Administration when certain conditions in the
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1 facility necessitate the discharge or transfer
2 of a resident; requiring that the agency
3 conduct an onsite inspection of the facility
4 under certain circumstances; requiring the
5 agency to develop a standard, uniform document
6 for notifying residents of a discharge or
7 transfer; providing for a nursing home resident
8 to request a local district ombudsman to review
9 any notice of discharge or transfer given to
10 the resident; requiring that the local district
11 ombudsman review a notice of discharge or
12 transfer within a specified time when review is
13 requested; requiring the nursing home
14 administrator, or a designee of the
15 administrator, to forward a resident's request
16 for review of a discharge or transfer notice to
17 an ombudsman within a specified time; providing
18 for tolling of the advance notice period;
19 providing for notice of emergency discharge or
20 transfer to be given to the resident and local
21 district ombudsman; requiring review within a
22 specified time by local district ombudsman of
23 emergency discharge or transfer; authorizing
24 local district ombudsmen to conduct private,
25 informal conversations with residents notified
26 of discharge or transfer and with their family
27 members, legal guardians, or designees;
28 amending s. 468.1755, F.S., relating to
29 disciplinary proceedings for nursing home
30 administrators; providing for disciplining an
31 administrator for authorizing a discharge or
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1 transfer of a nursing home resident for a
2 reason other than those specified in law;
3 amending ss. 394.4625, 468.1756, F.S., relating
4 to certain admissions to a mental health
5 facility and a statute of limitations;
6 conforming cross-references to changes made by
7 the act; providing an appropriation; providing
8 an effective date.
9
10 Be It Enacted by the Legislature of the State of Florida:
11
12 Section 1. Section 400.0060, Florida Statutes, is
13 amended to read:
14 400.0060 Definitions.--When used in this part, unless
15 the context otherwise requires, the term:
16 (1) "Agency" means the Agency for Health Care
17 Administration.
18 (2) "Conflict of interest" means a clash between the
19 public interest and the private pecuniary interest of a person
20 which is the result of:
21 (a) A direct involvement in the licensing or
22 certification of a long-term care facility or of a provider of
23 a long-term care service;
24 (b) An ownership or investment interest, such as
25 equity, debt, or other financial relationships, in a long-term
26 care facility or a long-term care service;
27 (c) Employment by, or participation in the management
28 of, a long-term care facility; or
29 (d) The receipt of, or having the right to receive,
30 directly or indirectly, remuneration, in cash or in kind,
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1 under a compensation arrangement with an owner or operator of
2 a long-term care facility.
3 (3)(2) "Long-term care facility" means a skilled
4 nursing facility, nursing facility, assisted living facility,
5 adult family-care home, board and care facility, or any other
6 similar adult care center.
7 (4)(3) "Office" means the Office of State Long-Term
8 Care Ombudsman.
9 (5)(4) "Ombudsman" means the individual designated to
10 head the Office of State Long-Term Care Ombudsman.
11 (6)(5) "Resident" means an individual 60 years of age
12 or older who resides in a long-term care facility.
13 (7)(6) "Secretary" means the Secretary of Elderly
14 Affairs.
15 Section 2. Section 400.0061, Florida Statutes, is
16 amended to read:
17 400.0061 Legislative findings and intent; long-term
18 care facilities.--
19 (1) The Legislature finds that conditions in long-term
20 care facilities in this state are such that the rights,
21 health, safety, and welfare of residents are not ensured by
22 rules of state agencies the Department of Health and
23 Rehabilitative Services or the Agency for Health Care
24 Administration, or by the good faith of owners or operators of
25 long-term care facilities. Furthermore, there is a need for a
26 formal mechanism whereby a long-term care facility resident or
27 his or her representative may make a complaint against the
28 facility or its employees, or against other persons who are in
29 a position to restrict, interfere with, or threaten the
30 rights, health, safety, or welfare of the resident. The
31 Legislature finds that concerned citizens are more effective
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1 advocates of the rights of long-term-care-facility residents
2 others than governmental agencies. The Legislature further
3 finds that in order to be eligible to receive an allotment of
4 funds authorized and appropriated under the federal Older
5 Americans Act, the state must establish and operate an Office
6 of State Long-Term Care Ombudsman, to be headed by the State
7 Long-Term Care Ombudsman, and carry out a long-term care
8 ombudsman program.
9 (2) It is the intent of the Legislature, therefore, to
10 utilize voluntary citizen ombudsman councils under the
11 leadership of the ombudsman, and through them to operate an
12 ombudsman program that which shall, without interference by
13 any executive agency, undertake to discover, investigate, and
14 determine the presence of conditions or individuals which
15 constitute a threat to the rights, health, safety, or welfare
16 of the residents of long-term care facilities. To ensure that
17 the effectiveness and efficiency of such investigations are
18 not impeded by advance notice or delay, the Legislature
19 intends that the ombudsman and ombudsman councils and their
20 designated representatives not be required to obtain warrants
21 in order to enter into or conduct administrative inspections
22 of long-term care facilities. It is the further intent of the
23 Legislature that the environment in long-term care facilities
24 shall be conducive to the dignity and independence of
25 residents and that investigations by ombudsman councils shall
26 further the enforcement of laws and, rules, and regulations
27 that safeguard the health, safety, and welfare of residents.
28 Section 3. Paragraph (f) of subsection (2) and
29 subsection (3) of section 400.0065, Florida Statutes, are
30 amended to read:
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1 400.0065 State Long-Term Care Ombudsman; duties and
2 responsibilities; conflict of interest.--
3 (2) The State Long-Term Care Ombudsman shall have the
4 duty and authority to:
5 (f) Perform the duties specified in state and federal
6 law without interference by officials of the Department of
7 Elderly Affairs, the Agency for Health Care Administration, or
8 the Department of Children and Family Health and
9 Rehabilitative Services. The ombudsman shall report to the
10 Governor, the President of the Senate, and the Speaker of the
11 House of Representatives whenever organizational or
12 departmental policy issues threaten the ability of the Office
13 of State Long-Term Care Ombudsman to carry out its duties
14 under state or federal law.
15 (3) The State Long-Term Care Ombudsman may shall not
16 have a conflict of interest.:
17 (a) Have a direct involvement in the licensing or
18 certification of, or an ownership or investment interest in, a
19 long-term care facility or a provider of a long-term care
20 service.
21 (b) Be employed by, or participate in the management
22 of, a long-term care facility.
23 (c) Receive, or have a right to receive, directly or
24 indirectly, remuneration, in cash or in kind, under a
25 compensation agreement with the owner or operator of a
26 long-term care facility.
27
28 The Department of Elderly Affairs shall adopt rules to
29 establish procedures to identify and eliminate conflicts of
30 interest as described in this subsection.
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1 Section 4. Section 400.0067, Florida Statutes, is
2 amended to read:
3 400.0067 Establishment of State Long-Term Care
4 Ombudsman Council; duties; membership.--
5 (1) There is created within the Office of State
6 Long-Term Care Ombudsman, the State Long-Term Care Ombudsman
7 Council.
8 (2) The State Long-Term Care Ombudsman Council shall:
9 (a) Assist the ombudsman in reaching a consensus among
10 district ombudsman councils on issues of statewide concern.
11 (b) Serve as an appellate body in receiving from the
12 district ombudsman councils complaints not resolved at the
13 district level. The state ombudsman council may enter any
14 long-term care facility involved in an appeal, pursuant to the
15 conditions specified in s. 400.0069(3).
16 (c) Assist the ombudsman to discover, investigate, and
17 determine the existence of abuse or neglect in any long-term
18 care facility and to develop procedures, in consultation with
19 the Department of Elderly Affairs, relating to such
20 investigations. Investigations may consist, in part, of one or
21 more onsite administrative inspections.
22 (d) Assist the ombudsman in eliciting, receiving,
23 responding to, and resolving complaints made by or on behalf
24 of long-term care facility residents and in developing
25 procedures, in consultation with the Department of Elderly
26 Affairs, relating to the receipt and resolution of such
27 complaints.
28 (e) Elicit and coordinate state, local, and voluntary
29 organizational assistance for the purpose of improving the
30 care received by residents of a long-term care facility.
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1 (f) Be authorized to call upon appropriate agencies of
2 state government for such professional assistance as may be
3 needed in the discharge of its duties, including assistance
4 from the adult protective services program of the Department
5 of Children and Family Health and Rehabilitative Services.
6 (g) Enter into a cooperative agreement with the
7 statewide and district human rights advocacy committees for
8 the purpose of coordinating advocacy services provided to
9 residents of long-term care facilities.
10 (h) Prepare an annual report describing the activities
11 carried out by the ombudsman and the State Long-Term Care
12 Ombudsman Council in the year for which the report is
13 prepared. The State Long-Term Care Ombudsman Council shall
14 submit the report to the Commissioner of the United States
15 Administration on Aging, the Governor, the President of the
16 Senate, the Speaker of the House of Representatives, the
17 minority leaders of the House and Senate, the chairpersons of
18 appropriate House and Senate committees, the Secretaries of
19 Elderly Affairs and Children and Family Health and
20 Rehabilitative Services, and the Director of Health Care
21 Administration. The report shall be submitted at least 30
22 days before the convening of the regular session of the
23 Legislature and shall, at a minimum:
24 1. Contain and analyze data collected and provide
25 analysis of that data concerning complaints about and
26 conditions in long-term care facilities.
27 2. Evaluate the problems experienced by residents of
28 long-term care facilities.
29 3. Contain recommendations for improving the quality
30 of life of the residents and for protecting the health,
31 safety, welfare, and rights of the residents.
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1 4. Analyze the success of the ombudsman program during
2 the preceding year and identify the barriers that prevent the
3 optimal operation of the program.
4 5. The report of the program's successes shall also
5 Address the relationship between the state long-term care
6 ombudsman program, the Department of Elderly Affairs, the
7 Agency for Health Care Administration, and the Department of
8 Children and Family Health and Rehabilitative Services, and
9 assess an assessment of how successfully the state long-term
10 care ombudsman program has carried out its responsibilities
11 under the Older Americans Act.
12 6.5. Provide policy and regulatory and legislative
13 recommendations to solve identified problems; resolve
14 residents' complaints; improve the quality of care and life of
15 the residents; protect the health, safety, welfare, and rights
16 of the residents; and remove the barriers to the optimal
17 operation of the state long-term care ombudsman program.
18 7.6. Contain recommendations from the district
19 ombudsman councils regarding program functions and activities.
20 8.7. Include a description of report on the activities
21 of the legal advocate and other legal advocates acting on
22 behalf of the district and state councils.
23 9. Contain a description of the disposition of all
24 complaints submitted to the Department of Elderly Affairs in
25 accordance with s. 400.0075(3).
26 (3)(a) The State Long-Term Care Ombudsman Council
27 shall be composed of a number of members equal to the number
28 of district councils in the state plus three. Each district
29 ombudsman council, including the ombudsman councils for
30 subdistricts 3A and 3B, shall appoint one member and the
31 Governor shall appoint three members to the State Long-Term
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1 Care Ombudsman Council. An individual designated by a
2 district ombudsman council must have been a member of a
3 district ombudsman council for at least 1 year, and shall
4 continue to serve as an active member at the district level.
5 The Governor's appointments shall be made from a list of not
6 fewer than eight nominees, to be selected by the secretary in
7 consultation with the State Long-Term Care Ombudsman Council
8 and submitted to the Governor. If the appointments are not
9 made within 30 days after the Governor receives the list of
10 nominees, the secretary shall, in consultation with the State
11 Long-Term Care Ombudsman Council, appoint three members from
12 the list of nominees submitted to the Governor. At least one
13 member appointed by the Governor must be over 60 years of age.
14 (b) All members shall be appointed to serve 3-year
15 terms. Any vacancy shall be filled in the same manner as the
16 original appointment. The position of any member missing
17 three consecutive regular meetings without cause shall be
18 declared vacant.
19 (c) The state ombudsman council shall elect a
20 chairperson for a term of 1 year from among the members who
21 have served for at least 1 year. The chairperson shall select
22 a vice chairperson from among the members. The vice
23 chairperson shall preside over the council in the absence of
24 the chairperson.
25 (d) The state ombudsman council shall meet upon the
26 call of the chairperson, at least quarterly or more frequently
27 as needed.
28 (e) Members shall receive no compensation but shall be
29 reimbursed for per diem and travel expenses as provided in s.
30 112.061.
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1 (4)(a) Within 30 days after May 5, 1993, Each district
2 ombudsman council shall appoint one member to the council and
3 the secretary shall submit a list of not fewer than eight
4 council nominees to the Governor.
5 (b) Within 60 days after May 5, 1993, The Governor
6 shall appoint three members to the council, or the provisions
7 of paragraph (3)(a) shall apply.
8 (c) The initial appointments shall be for staggered
9 terms. The members from districts 1, 2, 3A, 3B, and 4 shall
10 serve for 1 year; the members from districts 5, 6, 7, 8, and 9
11 shall serve for 2 years; and the members from districts 10 and
12 11 and the Governor's three appointees shall serve for 3
13 years. Thereafter, members shall be appointed and serve 3-year
14 terms as provided by this section.
15 (d) Within 60 days after May 5, 1993, or as soon
16 thereafter as practicable, the State Long-Term Care Ombudsman
17 Council shall hold its first meeting and shall elect a
18 chairperson from among its members, without regard to the
19 minimum time served on the council. All other provisions of
20 paragraph (3)(c) shall apply.
21 (5) An No officer, employee, or representative of the
22 Office of State Long-Term Care Ombudsman or of the State
23 Long-Term Care Ombudsman Council, or nor any member of the
24 immediate family of such officer, employee, or representative,
25 may not have a conflict of interest. The Department of
26 Elderly Affairs, in consultation with the ombudsman, shall
27 adopt rules to identify and remove conflicts of interest.
28 (6) The Department of Elderly Affairs shall make a
29 separate and distinct request for an appropriation for all
30 expenses for the state and district ombudsman councils.
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1 Section 5. Subsections (2), (4), (9), and (10) of
2 section 400.0069, Florida Statutes, are amended to read:
3 400.0069 District long-term care ombudsman councils;
4 duties; membership.--
5 (2) The duties of the district ombudsman council are:
6 (a) To serve as a third-party mechanism for protecting
7 the health, safety, welfare, and civil and human rights of
8 residents of a long-term care facility.
9 (b) To discover, investigate, and determine the
10 existence of abuse or neglect in any long-term care facility
11 and to use the procedures provided for in ss. 415.101-415.113
12 when applicable. Investigations may consist, in part, of one
13 or more onsite administrative inspections.
14 (c) To elicit, receive, investigate, respond to, and
15 resolve complaints made by, or on behalf of, long-term care
16 facility residents.
17 (d) To review and, if necessary, to comment on, for
18 their effect on the rights of long-term care facility
19 residents, all existing or proposed rules, regulations, and
20 other governmental policies relating to long-term care
21 facilities.
22 (e) To review personal property and money accounts of
23 Medicaid residents pursuant to an investigation to obtain
24 information regarding a specific complaint or problem.
25 (f) To represent the interests of residents before
26 government agencies and to seek administrative, legal, and
27 other remedies to protect the health, safety, welfare, and
28 rights of the residents.
29 (g) To carry out other activities that the ombudsman
30 determines to be appropriate.
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1 (4) Each district ombudsman council shall be composed
2 of no less than 15 members and no more than 30 members from
3 the district, to include the following: one medical or
4 osteopathic physician whose practice includes or has included
5 a substantial number of geriatric patients and who may have
6 limited practice in a long-term care facility; one registered
7 nurse who has geriatric experience, if possible; one licensed
8 pharmacist; one registered dietitian; at least six nursing
9 home residents or representative consumer advocates for
10 nursing home residents; at least three residents of assisted
11 living facilities or adult family-care homes or three
12 representative consumer advocates for long-term care facility
13 residents; one attorney; and one professional social worker.
14 In no case shall the medical director of a long-term care
15 facility or an employee of the Agency for Health Care
16 Administration, the Department of Children and Family Health
17 and Rehabilitative Services, or the Department of Elderly
18 Affairs serve as a member or as an ex officio member of a
19 council. Each member of the council shall certify that
20 neither the council member nor any member of the council
21 member's immediate family has any conflict of interest
22 pursuant to subsection (10). District ombudsman councils are
23 encouraged to recruit council members who are 60 years of age
24 or older.
25 (9) The district ombudsman councils may are authorized
26 to call upon appropriate agencies of state government for such
27 professional assistance as may be needed in the discharge of
28 their duties. All state agencies shall cooperate with the
29 district ombudsman councils in providing requested information
30 and requiring the attendance of agency representatives at
31 council meetings when requested. The Department of Children
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1 and Family Health and Rehabilitative Services shall continue
2 to provide space and in-kind administrative support for each
3 district ombudsman council staff within available resources
4 until the Legislature appropriates funds for office space and
5 administrative support.
6 (10) An No officer, employee, or representative of a
7 district long-term care ombudsman council, or nor any member
8 of the immediate family of such officer, employee, or
9 representative, may not have a conflict of interest. The
10 Department of Elderly Affairs, in consultation with the
11 ombudsman, shall adopt rules to identify and remove conflicts
12 of interest.
13 Section 6. Section 400.0071, Florida Statutes, is
14 amended to read:
15 400.0071 Complaint procedures.--
16 (1) The state ombudsman council shall establish state
17 and district procedures for receiving complaints against a
18 nursing home or long-term care facility or its employees
19 employee.
20 (2) These procedures shall be posted in full view in
21 every nursing home or long-term care facility. Every resident
22 or representative of a resident shall receive, upon admission
23 to a nursing home or long-term care facility, a printed copy
24 of the procedures of the state and the district ombudsman
25 councils.
26 Section 7. Subsections (1), (3), (4), and (5) of
27 section 400.0073, Florida Statutes, are amended, and
28 subsection (7) is added to that section, to read:
29 400.0073 State and district ombudsman council
30 investigations.--
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1 (1) A district ombudsman council shall investigate any
2 complaint of a resident or representative of a resident based
3 on an action by an administrator or employee of a nursing home
4 or long-term care facility which might be:
5 (a) Contrary to law.
6 (b) Unreasonable, unfair, oppressive, or unnecessarily
7 discriminatory, even though in accordance with law.
8 (c) Based on a mistake of fact.
9 (d) Based on improper or irrelevant grounds.
10 (e) Unaccompanied by an adequate statement of reasons.
11 (f) Performed in an inefficient manner.
12 (g) Otherwise erroneous.
13 (3) Subsequent to an appeal from a district ombudsman
14 council, the state ombudsman council may investigate any
15 nursing home or long-term care facility.
16 (4) In addition to any specific investigation made
17 pursuant to a complaint, the district ombudsman council shall
18 conduct, at least annually, an investigation that must, which
19 shall consist, in part, of an onsite administrative
20 inspection, of each nursing home or long-term care facility
21 within its jurisdiction. Such inspection must focus on the
22 rights, health, safety, and welfare of the residents.
23 (5) Any onsite administrative inspection conducted by
24 an ombudsman council shall be subject to the following:
25 (a) All inspections shall be at times and for
26 durations necessary to produce the information required to
27 carry out the duties of the council.
28 (b) No Advance notice of an inspection may not shall
29 be provided to any nursing home or long-term care facility,
30 except that notice of followup inspections on specific
31 problems may be provided.
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1 (c) Inspections shall be conducted in a manner that
2 which will not impose an no unreasonable burden on nursing
3 homes or long-term care facilities, consistent with the
4 underlying purposes of this part. Unnecessary duplication of
5 efforts among council members or the councils shall be reduced
6 to the extent possible.
7 (d) Any ombudsman council member physically present
8 for the inspection shall identify himself or herself and the
9 statutory authority for his or her inspection of the facility.
10 (e) Inspections may not unreasonably interfere with
11 the programs and activities of clients within the facility.
12 Ombudsman council members shall respect the rights of
13 residents.
14 (f) All inspections shall be limited to compliance
15 with parts II, III, and VII of this chapter and 42 U.S.C. ss.
16 1396(a) et seq., and any rules or regulations promulgated
17 pursuant to such laws.
18 (g) An No ombudsman council member may not shall enter
19 a single-family residential unit within a long-term care
20 facility without the permission of the resident or the
21 representative of the resident.
22 (h) Any inspection resulting from a specific complaint
23 made to an ombudsman council concerning a facility shall be
24 conducted within a reasonable time after the complaint is
25 made.
26 (7) The district ombudsman shall immediately report to
27 the adult protective services program of the Department of
28 Children and Family Services any action or conduct by any
29 long-term care facility that the council determines is a
30 substantial threat to the health, safety, welfare, or rights
31 of a resident of such long-term care facility that a district
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1 ombudsman has inspected. As appropriate, the district
2 ombudsman must notify the agency of such findings.
3 Section 8. Section 400.0075, Florida Statutes, is
4 amended to read:
5 400.0075 Complaint resolution procedures.--
6 (1) Any complaint, including any problem identified by
7 an ombudsman council as a result of an investigation, deemed
8 valid and requiring remedial action by the district ombudsman
9 council shall be identified and brought to the attention of
10 the long-term care facility administrator and the agency in
11 writing. Upon receipt of such document, the administrator, in
12 concurrence with the district ombudsman council chair, shall
13 establish target dates for taking appropriate remedial action.
14 If, by the target date, the remedial action is not completed
15 or forthcoming, the district ombudsman council may:
16 (a) Extend the target date if the council has reason
17 to believe such action would facilitate the resolution of the
18 complaint.
19 (b) In accordance with s. 400.0077, publicize the
20 complaint, the recommendations of the council, and the
21 response of the long-term care facility.
22 (c) Refer the complaint to the state ombudsman
23 council.
24
25 If the health, safety, welfare, or rights of the resident are
26 in imminent danger, the district long-term care ombudsman
27 council shall may seek immediate legal or administrative
28 remedies to protect the resident and refer the complaint to
29 the agency. The agency must immediately investigate any such
30 complaint to determine whether this chapter has been violated.
31
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1 (2) Upon referral from the district ombudsman council,
2 the state ombudsman council shall assume the responsibility
3 for the disposition of the complaint. If a long-term care
4 facility fails to take action on a complaint found valid by
5 the state ombudsman council, the state ombudsman council may:
6 (a) In accordance with s. 400.0077, publicize the
7 complaint, the recommendations of the district ombudsman
8 council and the state ombudsman council, any administrative
9 action taken, and the response of the long-term care facility.
10 (b) Recommend to the agency a series of facility
11 reviews pursuant to s. 400.19(4) to assure correction and
12 nonrecurrence of conditions that give rise to complaints
13 against a long-term care facility.
14 (c) Recommend to the agency changes in rules for
15 inspecting and licensing or certifying long-term care
16 facilities, and recommend to the Department of Health and
17 Rehabilitative Services changes in rules for licensing and
18 regulating long-term care facilities.
19 (d) Refer the complaint to the state attorney for
20 prosecution if there is reason to believe the long-term care
21 facility or its employee is guilty of a criminal act.
22 (e) Refer the complaint to the Medicaid Fraud Control
23 Unit of the Office of the Attorney General, if appropriate.
24 (f)(e) Recommend to the agency Department of Health
25 and Rehabilitative Services that the long-term care facility
26 no longer receive payments under the State Medical Assistance
27 Program (Medicaid).
28 (g)(f) Recommend that the agency initiate procedures
29 for revocation of license in accordance with chapter 120.
30
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1 (h)(g) Seek legal, administrative, or other remedies
2 to protect the health, safety, welfare, or rights of the
3 resident.
4
5 If the health, safety, welfare, or rights of the resident are
6 in imminent danger, the State Long-Term Care Ombudsman Council
7 shall seek immediate legal or administrative remedies to
8 protect the resident.
9 (3) The state ombudsman council shall provide, as part
10 of its annual report required pursuant to s. 400.0067(2)(h),
11 information relating to the disposition of all complaints to
12 the Department of Elderly Affairs, including those brought to
13 the attention of the agency pursuant to subsection (1).
14 Section 9. Subsection (1) of section 400.0081, Florida
15 Statutes, is amended to read:
16 400.0081 Access.--
17 (1) The Office of State Long-Term Care Ombudsman, the
18 State Long-Term Care Ombudsman Council, and the district
19 long-term care ombudsman councils, or their members
20 representatives, shall have access to:
21 (a) Long-term care facilities and residents.
22 (b) Medical and social records of a resident for
23 review, if:
24 1. The office or a council member has the permission
25 of the resident or the legal representative of the resident;
26 or
27 2. The resident is unable to consent to the review and
28 has no legal representative.
29 (c) Medical and social records of the resident as
30 necessary to investigate a complaint, if:
31
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1 1. A legal guardian of the resident refuses to give
2 permission.
3 2. The office or a council member has reasonable cause
4 to believe that the guardian is not acting in the best
5 interests of the resident.
6 3. The council member representative obtains the
7 approval of the ombudsman.
8 (d) The administrative records, policies, and
9 documents to which the residents, or the general public, have
10 access.
11 (e) Upon request, copies of all licensing and
12 certification records maintained by the state with respect to
13 a long-term care facility.
14 (f) All notices of discharge or transfer processed by
15 a long-term care facility regardless of ultimate disposition.
16 Section 10. Section 400.0089, Florida Statutes, is
17 amended to read:
18 400.0089 Agency reports.--The State Long-Term Care
19 Ombudsman Council, shall, in cooperation with the Department
20 of Elderly Affairs, maintain a statewide uniform reporting
21 system to collect and analyze data relating to complaints and
22 conditions in long-term care facilities and to residents, for
23 the purpose of identifying and resolving significant problems.
24 The council shall submit such data as part of its annual
25 report required pursuant to s. 400.0067(2)(h) to the agency
26 for Health Care Administration, the Department of Children and
27 Family Health and Rehabilitative Services, the Statewide Human
28 Rights Advocacy Committee, the Advocacy Center for Persons
29 with Disabilities, the Commissioner for the United States
30 Administration on Aging, the National Ombudsman Resource
31
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1 Center, and any other state or federal entities that the
2 ombudsman determines appropriate.
3 Section 11. Section 400.0091, Florida Statutes, is
4 amended to read:
5 400.0091 Training.--The ombudsman shall provide
6 appropriate training to all employees of the Office of State
7 Long-Term Care Ombudsman and to the state and district
8 long-term care ombudsman councils, including all unpaid
9 volunteers. An The ombudsman shall implement the training
10 program no later than June 1, 1994. No employee, officer, or
11 representative of the office or of the state or district
12 long-term care ombudsman councils, other than the ombudsman,
13 may not carry out any authorized ombudsman duty or
14 responsibility unless the person has received the training
15 required by this section and has been approved by the
16 ombudsman as qualified to carry out ombudsman activities on
17 behalf of the office or the state or district long-term care
18 ombudsman councils.
19 Section 12. Subsection (6) of section 400.021, Florida
20 Statutes, is amended to read:
21 400.021 Definitions.--When used in this part, unless
22 the context otherwise requires, the term:
23 (6) "Department" means the Department of Children and
24 Family Health and Rehabilitative Services.
25 Section 13. Subsection (1) of section 400.022, Florida
26 Statutes, is amended to read:
27 400.022 Residents' rights.--
28 (1) All licensees of nursing home facilities shall
29 adopt and make public a statement of the rights and
30 responsibilities of the residents of such facilities and shall
31 treat such residents in accordance with the provisions of that
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1 statement. The statement shall assure each resident the
2 following:
3 (a) The right to civil and religious liberties,
4 including knowledge of available choices and the right to
5 independent personal decision, which will not be infringed
6 upon, and the right to encouragement and assistance from the
7 staff of the facility in the fullest possible exercise of
8 these rights.
9 (b) The right to private and uncensored communication,
10 including, but not limited to, receiving and sending unopened
11 correspondence, access to a telephone, visiting with any
12 person of the resident's choice during visiting hours, and
13 overnight visitation outside the facility with family and
14 friends in accordance with facility policies, physician
15 orders, and Title XVIII (Medicare) and Title XIX (Medicaid) of
16 the Social Security Act regulations, without the resident's
17 losing his or her bed. Facility visiting hours shall be
18 flexible, taking into consideration special circumstances such
19 as, but not limited to, out-of-town visitors and working
20 relatives or friends. Unless otherwise indicated in the
21 resident care plan, the licensee shall, with the consent of
22 the resident and in accordance with policies approved by the
23 agency, permit recognized volunteer groups, representatives of
24 community-based legal, social, mental health, and leisure
25 programs, and members of the clergy access to the facility
26 during visiting hours for the purpose of visiting with and
27 providing services to any resident.
28 (c) Any entity or individual that provides health,
29 social, legal, or other services to a resident has the right
30 to have reasonable access to the resident. The resident has
31 the right to deny or withdraw consent to access at any time by
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1 any entity or individual. Notwithstanding the visiting policy
2 of the facility, the following individuals must be permitted
3 immediate access to the resident:
4 1. Any representative of the federal or state
5 government, including, but not limited to, representatives of
6 the Department of Children and Family Health and
7 Rehabilitative Services, the Agency for Health Care
8 Administration, and the Department of Elderly Affairs; any law
9 enforcement officer; members of the state or district
10 ombudsman council; and the resident's individual physician.
11 2. Subject to the resident's right to deny or withdraw
12 consent, immediate family or other relatives of the resident.
13
14 The facility must allow representatives of the state and
15 district long-term care ombudsman councils State Nursing Home
16 and Long-Term Care Facility Ombudsman Council to examine a
17 resident's clinical records with the permission of the
18 resident or the resident's legal representative and consistent
19 with state law.
20 (d) The right to present grievances on behalf of
21 himself or herself or others to the staff or administrator of
22 the facility, to governmental officials, or to any other
23 person; to recommend changes in policies and services to
24 facility personnel; and to join with other residents or
25 individuals within or outside the facility to work for
26 improvements in resident care, free from restraint,
27 interference, coercion, discrimination, or reprisal. This
28 right includes access to ombudsmen and advocates and the right
29 to be a member of, to be active in, and to associate with
30 advocacy or special interest groups. The right also includes
31 the right to prompt efforts by the facility to resolve
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1 resident grievances, including grievances with respect to the
2 behavior of other residents.
3 (e) The right to organize and participate in resident
4 groups in the facility and the right to have the resident's
5 family meet in the facility with the families of other
6 residents.
7 (f) The right to participate in social, religious, and
8 community activities that do not interfere with the rights of
9 other residents.
10 (g) The right to examine, upon reasonable request, the
11 results of the most recent inspection of the facility
12 conducted by a federal or state agency and any plan of
13 correction in effect with respect to the facility.
14 (h) The right to manage his or her own financial
15 affairs or to delegate such responsibility to the licensee,
16 but only to the extent of the funds held in trust by the
17 licensee for the resident. A quarterly accounting of any
18 transactions made on behalf of the resident shall be furnished
19 to the resident or the person responsible for the resident.
20 The facility may not require a resident to deposit personal
21 funds with the facility. However, upon written authorization
22 of a resident, the facility must hold, safeguard, manage, and
23 account for the personal funds of the resident deposited with
24 the facility as follows:
25 1. The facility must establish and maintain a system
26 that ensures a full, complete, and separate accounting,
27 according to generally accepted accounting principles, of each
28 resident's personal funds entrusted to the facility on the
29 resident's behalf.
30 2. The accounting system established and maintained by
31 the facility must preclude any commingling of resident funds
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1 with facility funds or with the funds of any person other than
2 another resident.
3 3. A quarterly accounting of any transaction made on
4 behalf of the resident shall be furnished to the resident or
5 the person responsible for the resident.
6 4. Upon the death of a resident with personal funds
7 deposited with the facility, the facility must convey within
8 30 days the resident's funds, including interest, and a final
9 accounting of those funds, to the individual or probate
10 jurisdiction administering the resident's estate, or, if a
11 personal representative has not been appointed within 30 days,
12 to the resident's spouse or adult next of kin named in the
13 beneficiary designation form provided for in s. 400.162(6).
14 5. The facility may not impose a charge against the
15 personal funds of a resident for any item or service for which
16 payment is made under Title XVIII or Title XIX of the Social
17 Security Act.
18 (i) The right to be fully informed, in writing and
19 orally, prior to or at the time of admission and during his or
20 her stay, of services available in the facility and of related
21 charges for such services, including any charges for services
22 not covered under Title XVIII or Title XIX of the Social
23 Security Act or not covered by the basic per diem rates and of
24 bed reservation and refund policies of the facility.
25 (j) The right to be adequately informed of his or her
26 medical condition and proposed treatment, unless the resident
27 is determined to be unable to provide informed consent under
28 Florida law, or the right to be fully informed in advance of
29 any nonemergency changes in care or treatment that may affect
30 the resident's well-being; and, except with respect to a
31 resident adjudged incompetent, the right to participate in the
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1 planning of all medical treatment, including the right to
2 refuse medication and treatment, unless otherwise indicated by
3 the resident's physician; and to know the consequences of such
4 actions.
5 (k) The right to refuse medication or treatment and to
6 be informed of the consequences of such decisions, unless
7 determined unable to provide informed consent under state law.
8 When the resident refuses medication or treatment, the nursing
9 home facility must notify the resident or the resident's legal
10 representative of the consequences of such decision and must
11 document the resident's decision in his or her medical record.
12 The nursing home facility must continue to provide other
13 services the resident agrees to in accordance with the
14 resident's care plan.
15 (l) The right to receive adequate and appropriate
16 health care and protective and support services, including
17 social services; mental health services, if available; planned
18 recreational activities; and therapeutic and rehabilitative
19 services consistent with the resident care plan, with
20 established and recognized practice standards within the
21 community, and with rules as adopted by the agency.
22 (m) The right to have privacy in treatment and in
23 caring for personal needs; to close room doors and to have
24 facility personnel knock before entering the room, except in
25 the case of an emergency or unless medically contraindicated;
26 and to security in storing and using personal possessions.
27 Privacy of the resident's body shall be maintained during, but
28 not limited to, toileting, bathing, and other activities of
29 personal hygiene, except as needed for resident safety or
30 assistance. Residents' personal and medical records shall be
31 confidential and exempt from the provisions of s. 119.07(1).
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1 (n) The right to be treated courteously, fairly, and
2 with the fullest measure of dignity and to receive a written
3 statement and an oral explanation of the services provided by
4 the licensee, including those required to be offered on an
5 as-needed basis.
6 (o) The right to be free from mental and physical
7 abuse, corporal punishment, extended involuntary seclusion,
8 and from physical and chemical restraints, except those
9 restraints authorized in writing by a physician for a
10 specified and limited period of time or as are necessitated by
11 an emergency. In case of an emergency, restraint may be
12 applied only by a qualified licensed nurse who shall set forth
13 in writing the circumstances requiring the use of restraint,
14 and, in the case of use of a chemical restraint, a physician
15 shall be consulted immediately thereafter. Restraints may not
16 be used in lieu of staff supervision or merely for staff
17 convenience, for punishment, or for reasons other than
18 resident protection or safety.
19 (p) The right to be transferred or discharged only for
20 medical reasons or for the welfare of other residents, and the
21 right to be given reasonable advance notice of not no less
22 than 30 days before of any involuntary transfer or discharge,
23 except in the case of an emergency as determined by a licensed
24 professional on the staff of the nursing home, or in the case
25 of conflicting rules and regulations which govern Title XVIII
26 or Title XIX of the Social Security Act. For nonpayment of a
27 bill for care received, the resident shall be given 30 days'
28 advance notice. A licensee certified to provide services
29 under Title XIX of the Social Security Act may not transfer or
30 discharge a resident solely because the source of payment for
31 care changes. Admission to a nursing home facility operated
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1 by a licensee certified to provide services under Title XIX of
2 the Social Security Act may not be conditioned upon a waiver
3 of such right, and any document or provision in a document
4 which purports to waive or preclude such right is void and
5 unenforceable. Any licensee certified to provide services
6 under Title XIX of the Social Security Act that obtains or
7 attempts to obtain such a waiver from a resident or potential
8 resident shall be construed to have violated the resident's
9 rights as established herein and is subject to disciplinary
10 action as provided in subsection (3). The resident and the
11 family or representative of the resident shall be consulted in
12 choosing another facility.
13 (q) The right to freedom of choice in selecting a
14 personal physician; to obtain pharmaceutical supplies and
15 services from a pharmacy of the resident's choice, at the
16 resident's own expense or through Title XIX of the Social
17 Security Act; and to obtain information about, and to
18 participate in, community-based activities programs, unless
19 medically contraindicated as documented by a physician in the
20 resident's medical record. If a resident chooses to use a
21 community pharmacy and the facility in which the resident
22 resides uses a unit-dose system, the pharmacy selected by the
23 resident shall be one that provides a compatible unit-dose
24 system, provides service delivery, and stocks the drugs
25 normally used by long-term care residents. If a resident
26 chooses to use a community pharmacy and the facility in which
27 the resident resides does not use a unit-dose system, the
28 pharmacy selected by the resident shall be one that provides
29 service delivery and stocks the drugs normally used by
30 long-term care residents.
31
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1 (r) The right to retain and use personal clothing and
2 possessions as space permits, unless to do so would infringe
3 upon the rights of other residents or unless medically
4 contraindicated as documented in the resident's medical record
5 by a physician. If clothing is provided to the resident by
6 the licensee, it shall be of reasonable fit.
7 (s) The right to have copies of the rules and
8 regulations of the facility and an explanation of the
9 responsibility of the resident to obey all reasonable rules
10 and regulations of the facility and to respect the personal
11 rights and private property of the other residents.
12 (t) The right to receive written notice before the
13 room of the resident in the facility is changed. However, a
14 resident may be moved to another room in the facility for
15 medically necessary care without the need of a written notice
16 if, before the move, the medical director of the facility or
17 the resident's attending physician consults with the resident
18 or the resident's designee. A resident, or the resident's
19 designee, may give notice of his or her refusal to be moved by
20 providing a written statement of such refusal to the nursing
21 home administrator.
22 (u) The right to be informed of the bed reservation
23 policy for a hospitalization. The nursing home shall inform a
24 private-pay resident and his or her responsible party that his
25 or her bed will be reserved for any single hospitalization for
26 a period up to 30 days provided the nursing home receives
27 reimbursement. Any resident who is a recipient of assistance
28 under Title XIX of the Social Security Act, or the resident's
29 designee or legal representative, shall be informed by the
30 licensee that his or her bed will be reserved for any single
31 hospitalization for the length of time for which Title XIX
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1 reimbursement is available, up to 8 15 days; but that the bed
2 will not be reserved if it is medically determined by the
3 agency that the resident will not need it or will not be able
4 to return to the nursing home, or if the agency determines
5 that the nursing home's occupancy rate ensures the
6 availability of a bed for the resident. Notice shall be
7 provided within 24 hours of the hospitalization.
8 (v) For residents of Medicaid or Medicare certified
9 facilities, the right to challenge a decision by the facility
10 to discharge or transfer the resident, as required under Title
11 42 C.F.R. part 483.12 483.13.
12 Section 14. Section 400.0255, Florida Statutes, is
13 amended to read:
14 400.0255 Resident hearings of facility decisions to
15 transfer or discharge.--
16 (1) As used in this section, the term:
17 (a) "Discharge" means to move a resident to a
18 noninstitutional setting when the releasing facility ceases to
19 be responsible for the resident's care.
20 (b) "Transfer" means to move a resident from the
21 facility to another legally responsible institutional setting.
22 "discharge" or "transfer" means the movement of a resident to
23 a bed outside the certified facility. "Discharge" or
24 "transfer" does not refer to the movement of a resident to a
25 bed within the same certified facility.
26 (2) Each facility licensed under this part must comply
27 with s. 400.022(1)(p) and subsection (8) when deciding to
28 discharge or transfer a resident.
29 (3) When a resident is to be discharged or
30 transferred, the nursing home administrator employed by the
31 nursing home that is discharging or transferring the resident,
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1 or an individual employed by the nursing home who is
2 designated by the nursing home administrator to act on behalf
3 of the administrator, must sign the notice of discharge or
4 transfer. Any notice indicating a medical reason for transfer
5 or discharge must be signed by the resident's attending
6 physician or the medical director of the facility.
7 (4)(a) Each facility must notify the agency of any
8 proposed discharge or transfer of a resident when such
9 discharge or transfer is necessitated by changes in the
10 physical plant of the facility which make the facility unsafe
11 for the resident.
12 (b) Upon receipt of such a notice the agency shall
13 conduct an onsite inspection of the facility to verify the
14 necessity of the discharge or transfer.
15 (5)(2) A resident of any Medicaid or Medicare
16 certified facility may challenge a decision by the facility to
17 discharge or transfer the resident.
18 (6)(3) At least 30 days prior to any proposed transfer
19 or discharge, a facility must provide advance notice of the
20 proposed transfer or discharge to the resident and, if known,
21 to a family member or the resident's legal guardian or
22 representative, except, in the following circumstances, the
23 facility shall give notice as soon as practicable before the
24 transfer or discharge:
25 (a) The transfer or discharge is necessary for the
26 resident's welfare and the resident's needs cannot be met in
27 the facility, and the circumstances are documented in the
28 resident's medical records by the resident's physician; or
29 (b) The health or safety of other residents or
30 facility employees would be endangered, and the circumstances
31 are documented in the resident's medical records by the
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1 resident's physician or the medical director if the resident's
2 physician is not available.
3 (7)(4) The notice required by subsection (6)(3) must
4 be in writing and must contain all information required by
5 state and federal law, rules, or regulations applicable to
6 Medicaid or Medicare cases. The agency shall develop a
7 standard and uniform document to be used by all facilities
8 licensed under this part for purposes of notifying residents
9 of a discharge or transfer. Such document must include a means
10 for a resident to request a local district ombudsman to review
11 the notice and request information about or assistance with
12 initiating a fair hearing with the department's Office of
13 Appeals Hearings. A copy of the notice must be placed in the
14 resident's clinical record, and a copy must be transmitted to
15 the resident's legal guardian or representative and to the
16 local district ombudsman council.
17 (8) A resident may request that a local district
18 ombudsman review any notice of discharge or transfer given to
19 the resident. When requested by a resident to review a notice
20 of discharge or transfer, the local district ombudsman shall
21 do so within 7 days after receipt of the request. The nursing
22 home administrator, or the administrator's designee, must
23 forward the request for review contained in the notice to the
24 local district ombudsman within 24 hours after such request is
25 submitted. Failure to forward the request within 24 hours
26 after the request is submitted shall toll the start of the
27 30-day advance notice period.
28 (9)(5)(a) A resident is entitled to a fair hearing to
29 challenge a facility's proposed transfer or discharge. The
30 resident, or the resident's legal representative or designee,
31 may request a hearing at any time within 90 days after of the
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1 resident's receipt of the facility's notice of the proposed
2 discharge or transfer.
3 (b) If a resident requests a hearing within 10 days
4 after of receiving the notice from the facility, the request
5 shall stay the proposed transfer or discharge pending a
6 hearing decision. The facility may not take action, and the
7 resident may remain in the facility, until the outcome of the
8 initial fair hearing, which must be completed within 90 days
9 after of receipt of a request for a fair hearing.
10 (c) If the resident fails to request a hearing within
11 10 days after of receipt of the facility notice of the
12 proposed discharge or transfer, the facility may transfer or
13 discharge the resident after 30 days from the date the
14 resident received the notice.
15 (10)(6) Notwithstanding paragraph (9)(b) (5)(b), an
16 emergency discharge or transfer may be implemented as
17 necessary pursuant to state or federal law during the period
18 of time after the notice is given and before the time a
19 hearing decision is rendered. Notice of an emergency discharge
20 or transfer to the resident, the resident's legal guardian or
21 representative, and the local district ombudsman if requested
22 pursuant to s. 400.0255(8) must be by telephone or in person.
23 This notice shall be given before the transfer, if possible,
24 or as soon thereafter as practicable. A local district
25 ombudsman conducting a review under this subsection shall do
26 so within 24 hours after receipt of the request. The
27 resident's file must be documented to show who was contacted,
28 whether the contact was by telephone or in person, and the
29 date and time of the contact. If the notice is not given in
30 writing, written notice meeting the requirements of subsection
31 (4) must be given the next working day.
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1 (11) After receipt of any notice required under this
2 section, the local district ombudsman may request a private
3 informal conversation with a resident to whom the notice is
4 directed, and, if known, a family member or the resident's
5 legal guardian or designee, to ensure that the facility is
6 proceeding with the discharge or transfer in accordance with
7 the requirements of this section. If requested, the local
8 district ombudsman shall assist the resident with filing an
9 appeal of the proposed discharge or transfer.
10 (12)(7) The following persons must be present at all
11 proceedings authorized under this section:
12 (a) The resident, or the resident's legal
13 representative or designee.
14 (b) The facility administrator, or the facility's
15 legal representative or designee.
16
17 A representative of the district long-term care ombudsman
18 council may be present at all proceedings authorized by this
19 section.
20 (13)(8) In any proceeding under this section, the
21 following information concerning the parties shall be
22 confidential and exempt from the provisions of s. 119.07(1):
23 (a) Names and addresses.
24 (b) Medical services provided.
25 (c) Social and economic conditions or circumstances.
26 (d) Evaluation of personal information.
27 (e) Medical data, including diagnosis and past history
28 of disease or disability.
29 (f) Any information received verifying income
30 eligibility and amount of medical assistance payments. Income
31 information received from the Social Security Administration
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1 or the Internal Revenue Service must be safeguarded according
2 to the requirements of the agency that furnished the data.
3
4 The exemption created by this subsection does not prohibit
5 access to such information by a district long-term care
6 ombudsman council upon request, by a reviewing court if such
7 information is required to be part of the record upon
8 subsequent review, or as specified in s. 24(a), Art. I of the
9 State Constitution.
10 (14)(9)(a) The department's Office of Appeals Hearings
11 shall conduct hearings under this section. The office shall
12 notify the facility of a resident's request for a hearing.
13 (b) The department shall, by rule, establish
14 procedures to be used for fair hearings requested by
15 residents. These procedures shall be equivalent to the
16 procedures used for fair hearings for other Medicaid cases,
17 chapter 10-2, part VI, Florida Administrative Code. The
18 burden of proof must be clear and convincing evidence. A
19 hearing decision must be rendered within 90 days after of
20 receipt of the request for hearing.
21 (15)(10) If the hearing decision is favorable to the
22 resident who has been transferred or discharged, the resident
23 must be readmitted to the facility's first available bed.
24 (16)(11) The decision of the hearing officer shall be
25 final. Any aggrieved party may appeal the decision to the
26 district court of appeal in the appellate district where the
27 facility is located. Review procedures shall be conducted in
28 accordance with the Florida Rules of Appellate Procedure.
29 (17)(12) The department may adopt rules necessary to
30 administer implement the provisions of this section.
31
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1 Section 15. Subsection (1) of section 468.1755,
2 Florida Statutes, 1998 Supplement, is amended to read:
3 468.1755 Disciplinary proceedings.--
4 (1) The following acts shall constitute grounds for
5 which the disciplinary actions in subsection (2) may be taken:
6 (a) Violation of any provision of s. 455.624(1) or s.
7 468.1745(1).
8 (b) Attempting to procure a license to practice
9 nursing home administration by bribery, by fraudulent
10 misrepresentation, or through an error of the department or
11 the board.
12 (c) Having a license to practice nursing home
13 administration revoked, suspended, or otherwise acted against,
14 including the denial of licensure, by the licensing authority
15 of another state, territory, or country.
16 (d) Being convicted or found guilty, regardless of
17 adjudication, of a crime in any jurisdiction which relates to
18 the practice of nursing home administration or the ability to
19 practice nursing home administration. Any plea of nolo
20 contendere shall be considered a conviction for purposes of
21 this part.
22 (e) Making or filing a report or record which the
23 licensee knows to be false, intentionally failing to file a
24 report or record required by state or federal law, willfully
25 impeding or obstructing such filing, or inducing another
26 person to impede or obstruct such filing. Such reports or
27 records shall include only those which are signed in the
28 capacity of a licensed nursing home administrator.
29 (f) Authorizing the discharge or transfer of a
30 resident for a reason other than those provided in ss. 400.022
31 and 400.0255.
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1 (g)(f) Advertising goods or services in a manner which
2 is fraudulent, false, deceptive, or misleading in form or
3 content.
4 (h)(g) Fraud or deceit, negligence, incompetence, or
5 misconduct in the practice of nursing home administration.
6 (i)(h) A violation or repeated violations of this
7 part, part II of chapter 455, or any rules promulgated
8 pursuant thereto.
9 (j)(i) Violation of a lawful order of the board or
10 department previously entered in a disciplinary hearing or
11 failing to comply with a lawfully issued subpoena of the board
12 or department.
13 (k)(j) Practicing with a revoked, suspended, inactive,
14 or delinquent license.
15 (l)(k) Repeatedly acting in a manner inconsistent with
16 the health, safety, or welfare of the patients of the facility
17 in which he or she is the administrator.
18 (m)(l) Being unable to practice nursing home
19 administration with reasonable skill and safety to patients by
20 reason of illness, drunkenness, use of drugs, narcotics,
21 chemicals, or any other material or substance or as a result
22 of any mental or physical condition. In enforcing this
23 paragraph, upon a finding of the secretary or his or her
24 designee that probable cause exists to believe that the
25 licensee is unable to serve as a nursing home administrator
26 due to the reasons stated in this paragraph, the department
27 shall have the authority to issue an order to compel the
28 licensee to submit to a mental or physical examination by a
29 physician designated by the department. If the licensee
30 refuses to comply with such order, the department's order
31 directing such examination may be enforced by filing a
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1 petition for enforcement in the circuit court where the
2 licensee resides or serves as a nursing home administrator.
3 The licensee against whom the petition is filed shall not be
4 named or identified by initials in any public court records or
5 documents and the proceedings shall be closed to the public.
6 The department shall be entitled to the summary procedure
7 provided in s. 51.011. A licensee affected under this
8 paragraph shall have the opportunity, at reasonable intervals,
9 to demonstrate that he or she can resume the competent
10 practice of nursing home administration with reasonable skill
11 and safety to patients.
12 (n)(m) Has Willfully or repeatedly violating violated
13 any of the provisions of the law, code or rules of the
14 licensing or supervising authority or agency of the state or
15 political subdivision thereof having jurisdiction of the
16 operation and licensing of nursing homes.
17 (o)(n) Paying, giving, causing Has paid, given, caused
18 to be paid or given, or offering offered to pay or to give to
19 any person a commission or other valuable consideration for
20 the solicitation or procurement, either directly or
21 indirectly, of nursing home usage.
22 (p)(o) Has Willfully permitting permitted unauthorized
23 disclosure of information relating to a patient or his or her
24 records.
25 (q)(p) Discriminating with Has discriminated in
26 respect to patients, employees, or staff on account of race,
27 religion, color, sex, or national origin.
28 Section 16. Paragraph (b) of subsection (1) of section
29 394.4625, Florida Statutes, is amended to read:
30 394.4625 Voluntary admissions.--
31 (1) AUTHORITY TO RECEIVE PATIENTS.--
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1 (b) A mental health overlay program or a mobile crisis
2 response service or a licensed professional who is authorized
3 to initiate an involuntary examination pursuant to s. 394.463
4 and is employed by a community mental health center or clinic
5 must, pursuant to district procedure approved by the
6 respective district administrator, conduct an initial
7 assessment of the ability of the following persons to give
8 express and informed consent to treatment before such persons
9 may be admitted voluntarily:
10 1. A person 60 years of age or older for whom transfer
11 is being sought from a nursing home, assisted living facility,
12 adult day care center, or adult family-care home, when such
13 person has been diagnosed as suffering from dementia.
14 2. A person 60 years of age or older for whom transfer
15 is being sought from a nursing home pursuant to s.
16 400.0255(10) s. 400.0255(6).
17 3. A person for whom all decisions concerning medical
18 treatment are currently being lawfully made by the health care
19 surrogate or proxy designated under chapter 765.
20 Section 17. Section 468.1756, Florida Statutes, 1998
21 Supplement, is amended to read:
22 468.1756 Statute of limitations.--An administrative
23 complaint may only be filed pursuant to s. 455.621 for an act
24 listed in s. 468.1755(1)(c)-(q) paragraphs (1)(c)-(p) of s.
25 468.1755 within 4 years from the time of the incident giving
26 rise to the complaint, or within 4 years from the time the
27 incident is discovered or should have been discovered.
28 Section 18. The sum of $100,000 is appropriated from
29 the Health Care Trust Fund to the Department of Elderly
30 Affairs for the 1999-2000 fiscal year to enable the Office of
31 State Long-Term Care Ombudsman to carry out the duties
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1 assigned to the district long-term care ombudsman councils as
2 provided in this act and for establishing a toll-free
3 telephone number.
4 Section 19. This act shall take effect July 1, 1999.
5
6 *****************************************
7 SENATE SUMMARY
8 Revises various provisions of parts I and II of ch. 400,
F.S., which govern the operation of long-term care
9 facilities and nursing homes. Clarifies certain
provisions that prohibit conflicts of interest by
10 members, employees, or representatives of the state or
district long-term care ombudsman councils. Revises
11 certain duties of the ombudsman councils. Revises
requirements for inspections of long-term care
12 facilities. Requires that the Agency for Health Care
Administration investigate certain complaints against a
13 long-term care facility. Revises the required procedures
for transferring or discharging a nursing home resident.
14 Provides requirements for reviewing a notice of discharge
or transfer. Authorizes disciplinary proceedings for
15 unlawfully discharging or transferring such a resident.
(See bill for details.)
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