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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    Florida Senate - 1999                                   SB 834
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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

31

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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.)
16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

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