Senate Bill 0942

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    Florida Senate - 1999                                   SB 942

    By Senator Gutman





    34-792-99                                               See HB

  1                      A bill to be entitled

  2         An act relating to nursing homes; creating the

  3         "Nursing Home Quality Improvement Act of 1999";

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

  5         legislative findings and intent; requiring

  6         studies and recommendations by the Agency for

  7         Health Care Administration; amending s.

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

  9         nursing home facilities and providing

10         additional rights; amending s. 400.0231, F.S.;

11         requiring facilities to keep complete and

12         accurate medical records; providing a

13         rebuttable presumption in the absence of such

14         records; amending s. 400.0255, F.S.; providing

15         definitions and requirements relating to

16         discharge or transfer of residents; amending s.

17         400.063, F.S.; conforming a cross-reference;

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

19         of facility fines or recovery costs by setoffs

20         from amounts otherwise payable to the facility;

21         providing requirements for review of

22         administrative proceedings challenging agency

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

24         requiring agency approval of the form of

25         facility contracts with residents; amending s.

26         400.162, F.S.; providing minimum requirements

27         for policies regarding the safekeeping of

28         residents' property; amending s. 400.23, F.S.;

29         providing minimum staffing requirements;

30         requiring recordkeeping with respect to

31         staffing and report of staffing shortfalls;

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




  1         increasing membership on the Nursing Home

  2         Advisory Committee; authorizing the agency to

  3         downgrade facility ratings under certain

  4         circumstances; requiring issuance of amended

  5         licenses reflecting facility ratings changes;

  6         revising certain ratings requirements;

  7         providing additional acts classified as

  8         deficiencies; providing penalties and

  9         increasing maximum fines; amending s. 400.29,

10         F.S.; requiring the agency to make certain

11         updated information available to the public;

12         amending s. 415.107, F.S.; providing that the

13         identity of a person reporting adult abuse,

14         neglect, or exploitation may be released to the

15         Attorney General's Medicaid Fraud Control Unit;

16         amending ss. 435.03 and 435.04, F.S.; providing

17         for employment screening of persons convicted

18         under s. 825.1035, F.S.; creating s. 825.1035,

19         F.S.; providing a penalty for failure to report

20         known abuse, neglect, or exploitation of a

21         nursing home resident to law enforcement;

22         amending s. 394.4625, F.S.; conforming a

23         cross-reference; providing an effective date.

24

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

26

27         Section 1.  This act may be cited as the "Nursing Home

28  Quality Improvement Act of 1999."

29         Section 2.  Section 400.0115, Florida Statutes, is

30  created to read:

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




  1         400.0115  Legislative findings and intent; studies;

  2  report and recommendations.--

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

  4  present regulatory system regarding nursing home facilities is

  5  not adequate to detect and correct problems at the facilities

  6  before they reach the crisis stage.  Some facilities have

  7  failed to meet their payroll and other normal operating

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

  9  need for emergency measures and the expenditure of public

10  funds to transfer residents to another facility in order to

11  continue their care.  Other facilities have lapsed into such

12  inadequate care that the health and welfare of many residents

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

14  to alleviate the problems, again often at great public

15  expense. Many facilities with separate licenses for each

16  location are owned by holding companies or chains; other

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

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

19  case, the regulatory system must recognize such realities and

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

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

22  under this section, the agency shall consider the terms

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

24  chains, or management companies, where appropriate. The

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

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

27  additional procedures are required to:

28         (a)  Continuously gather and analyze information

29  regarding the operation of facilities and the condition of

30  residents therein.

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

  2  are "early warning signs" indicating a substantial possibility

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

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

  5  jeopardy.

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

  7  any facility deemed to be potentially in danger of having

  8  deficiencies or violations threatening the financial stability

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

10  the facility.

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

12  case of a facility found to have such deficiencies or

13  violations, in order to prevent further deterioration of

14  conditions and possible crisis situations.

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

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

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

18  require that information provided to the agency by facilities

19  and by other government agencies be in a consistent,

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

21  electronic data transmission and processing techniques by the

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

23  disseminate information used in the regulation of facilities.

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

25  studies and to present a report and recommendations to the

26  Speaker of the House of Representatives and the President of

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

28  Regular Session of the Legislature. The agency shall:

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

30  relating to regulation of facilities presently received by the

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

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

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

  3  based upon its experience and knowledge of conditions in the

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

  5  indicators that there is a substantial possibility that the

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

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

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

  9  be adversely affected.  The events, occurrences, and

10  conditions so determined need not constitute violations or

11  deficiencies themselves, as long as they are sufficient

12  indicators of the possible presence of violations or

13  deficiencies which could adversely affect the health, safety,

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

15  the generality of the foregoing:

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

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

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

19  jeopardized to the extent that it may become insolvent or

20  abruptly cease operations, thus causing disruption and adverse

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

22  need for the agency to seek moratoria, injunctions,

23  receiverships, and expenditures from the Resident Protection

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

25  agency to detect and alleviate such financial problems before

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

27  conserved and the quality of care of residents will be

28  enhanced.

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

30  dehydration, pressure sores, or pulmonary infections among

31  residents of a facility could indicate a decline in the

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

  2  to serious adverse impacts on the health of residents if

  3  unchecked.

  4         3.  A pattern of unexplained disappearances of

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

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

  7  could indicate inadequate security measures at the facility,

  8  endangering the safety and welfare of residents if not

  9  corrected.

10         (c)  Determine whether the data and other information

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

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

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

14  be required in agency rules or in statutes to provide

15  sufficient information.

16         (d)  Determine whether additional changes are needed in

17  agency rules or in statutes to make the information identified

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

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

20  promote efficiency, recognize and regulate practices of

21  holding companies, chains, and management companies affecting

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

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

24  residents of facilities, without unnecessary burdens on the

25  regulated facilities, and without conflicting with nonwaivable

26  federal requirements.

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

28  system" whereby:

29         1.  Sufficient and timely information would be provided

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

31  identified.

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




  1         2.  Agency staff could analyze and evaluate such

  2  information and detect "early warning signs."

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

  4  set to indicate the strong possibility of the existence of

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

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

  7  facility, or which could require the inordinate expenditure of

  8  public resources to stave off such jeopardy.

  9         4.  When such threshold levels are found, graduated

10  levels of agency intervention would be triggered, such as:

11         a.  Inspections or surveys.

12         b.  Documenting of deficiencies or violations

13  discovered.

14         c.  Consultation and advice for the facility from one

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

16  consultants with sufficient expertise approved by the agency,

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

18  should not serve as a consultant with facilities because of

19  the inherent conflict with the agency's regulatory and

20  enforcement roles.

21         d.  Negotiation and implementation of consent orders

22  with corrective action plans with facilities.

23         e.  Incentives for facilities to enter into and comply

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

25  to pursue penalties or other disciplinary action for

26  identified and admitted existing deficiencies and violations,

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

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

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

30  corrective actions.

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




  1         g.  Enhanced penalties or other discipline if the

  2  facility fails to comply with the consent order.

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

  4  moratoria, injunctions, license suspensions or revocations,

  5  federal sanctions, penalties, or receiverships, if the

  6  facility declines to enter into a consent order or if

  7  conditions at the facility are such that a consent order with

  8  corrective action plan would most likely not produce the

  9  necessary improvements.

10         i.  Other measures recommended by the agency.

11         (f)  Propose language amending the Florida Statutes to

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

13  "early warning system."

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

15  Statutes, is amended to read:

16         400.022  Residents' rights.--

17         (1)  All licensees of nursing home facilities shall

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

19  rights and responsibilities of the residents of such

20  facilities and shall treat such residents in accordance with

21  the provisions of that statement.  The statement shall assure

22  each resident the following:

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

24  including knowledge of available choices and the right to

25  independent personal decision, which will not be infringed

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

27  staff of the facility in the fullest possible exercise of

28  these rights.

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

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

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

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

  2  hours, and overnight visitation outside the facility with

  3  family and friends in accordance with facility policies,

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

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

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

  7  shall be flexible, taking into consideration special

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

  9  visitors and working relatives or friends.  Unless otherwise

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

11  the consent of the resident and in accordance with policies

12  approved by the agency, permit recognized volunteer groups,

13  representatives of community-based legal, social, mental

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

15  to the facility during visiting hours for the purpose of

16  visiting with and providing services to any resident. Facility

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

18  his or her legal representative and with public officials.

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

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

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

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

23  any entity or individual. Notwithstanding the visiting policy

24  of the facility, the following individuals must be permitted

25  immediate access to the resident:

26         1.  Any representative of the federal or state

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

28  the Department of Children and Family Health and

29  Rehabilitative Services, the Agency for Health Care

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

31  Department of Elderly Affairs; any law enforcement officer;

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

  2  resident's individual physician.

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

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

  5

  6  The facility must allow representatives of the state Nursing

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

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

  9  the resident or the resident's legal representative and

10  consistent with state law.

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

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

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

14  person; to recommend changes in policies and services to

15  facility personnel; and to join with other residents or

16  individuals within or outside the facility to work for

17  improvements in resident care, free from restraint,

18  interference, coercion, discrimination, or reprisal. This

19  right includes access to ombudsmen and advocates and the right

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

21  advocacy or special interest groups.  The right also includes

22  the right to prompt efforts by the facility to resolve

23  resident grievances, including grievances with respect to the

24  behavior of other residents.

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

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

27  family meet in the facility with the families of other

28  residents.

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

30  community activities that do not interfere with the rights of

31  other residents.

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

  2  results of the most recent inspection of the facility

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

  4  correction in effect with respect to the facility.

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

  6  affairs or to delegate such responsibility to the licensee,

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

  8  licensee for the resident. A quarterly accounting of any

  9  transactions made on behalf of the resident shall be furnished

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

11  The facility may not require a resident to deposit personal

12  funds with the facility.  However, upon written authorization

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

14  account for the personal funds of the resident deposited with

15  the facility as follows:

16         1.  The facility must establish and maintain a system

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

18  according to generally accepted accounting principles, of each

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

20  resident's behalf.

21         2.  The accounting system established and maintained by

22  the facility must preclude any commingling of resident funds

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

24  another resident.

25         3.  A quarterly accounting of any transaction made on

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

27  the person responsible for the resident.

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

29  deposited with the facility, the facility must convey within

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

31  accounting of those funds, to the individual or probate

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

  2  personal representative has not been appointed within 30 days,

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

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

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

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

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

  8  Security Act.

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

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

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

12  charges for such services, including any charges for services

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

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

15  bed reservation and refund policies of the facility. In

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

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

18  provided with an itemized bill and a reasonable explanation

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

20  billed with respect to the resident not covered by the

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

22  payment. This information shall include a statement of any

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

24  request for billing and reimbursement information may be

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

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

27  medical condition and proposed treatment, unless the resident

28  is determined to be unable to provide informed consent under

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

30  any nonemergency changes in care or treatment that may affect

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

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




  1  resident adjudged incompetent, the right to participate in the

  2  planning of all medical treatment, including the right to

  3  refuse medication and treatment, unless otherwise indicated by

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

  5  actions.

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

  7  be informed of the consequences of such decisions, unless

  8  determined unable to provide informed consent under state law.

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

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

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

12  executed and the resident has been determined by two licensed

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

14  refuses medication or treatment, the nursing home facility

15  must notify the resident or the resident's legal

16  representative of the consequences of such decision and must

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

18  The nursing home facility must continue to provide other

19  services the resident agrees to in accordance with the

20  resident's care plan.

21         (l)  The right to receive adequate and appropriate

22  health care and protective and support services, including

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

24  recreational activities; and therapeutic and rehabilitative

25  services consistent with the resident care plan, with

26  established and recognized practice standards within the

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

28  facility shall ensure good personal hygiene for residents, to

29  minimize the risk of infections and bedsores; measures to

30  prevent or reduce incontinence in residents and minimize the

31  adverse effects of unavoidable incontinence; and the

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




  1  availability of a nurse call system to summon assistance, with

  2  buttons or other activating mechanisms at critical locations,

  3  including a button or other activating mechanism within reach

  4  of each resident.

  5         (m)  The right to proper contemporaneous documentation

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

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

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

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

10  which is educational or informative, rather than therapeutic.

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

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

13  facility personnel knock before entering the room, except in

14  the case of an emergency or unless medically contraindicated;

15  and to security in storing and using personal possessions.

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

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

18  personal hygiene, except as needed for resident safety or

19  assistance.  Residents' personal and medical records shall be

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

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

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

23  written statement and an oral explanation of the services

24  provided by the licensee, including those required to be

25  offered on an as-needed basis.

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

27  abuse, corporal punishment, extended involuntary seclusion,

28  and from physical and chemical restraints, except those

29  restraints authorized in writing by a physician for a

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

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

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

  2  in writing the circumstances requiring the use of restraint,

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

  4  shall be consulted immediately thereafter. Restraints may not

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

  6  convenience, for punishment, or for reasons other than

  7  resident protection or safety.

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

  9  by the facility except for the reasons and under the

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

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

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

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

14  emergency as determined by a licensed professional on the

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

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

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

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

19  A licensee certified to provide services under Title XIX of

20  the Social Security Act may not transfer or discharge a

21  resident solely because the source of payment for care

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

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

24  unless the facility has been denied permission by the agency

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

26  Admission to a nursing home facility operated by a licensee

27  certified to provide services under Title XIX of the Social

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

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

30  purports to waive or preclude such right is void and

31  unenforceable.  Any licensee certified to provide services

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

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

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

  4  rights as established herein and is subject to disciplinary

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

  6  family or representative of the resident shall be consulted in

  7  choosing another facility.

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

  9  personal physician; to obtain pharmaceutical supplies and

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

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

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

13  participate in, community-based activities programs, unless

14  medically contraindicated as documented by a physician in the

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

16  community pharmacy and the facility in which the resident

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

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

19  system, provides service delivery, and stocks the drugs

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

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

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

23  pharmacy selected by the resident shall be one that provides

24  service delivery and stocks the drugs normally used by

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

26  notwithstanding, a registered pharmacist acting on behalf of a

27  facility or resident shall be permitted to repackage

28  prescription medicine packaged by another pharmacist, for

29  administration to a resident, in order to implement the

30  resident's rights under this paragraph.

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

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

  3  infringe upon the rights of other residents or unless

  4  medically contraindicated as documented in the resident's

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

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

  7  facility shall establish policies and procedures to eliminate

  8  or greatly reduce theft and loss of residents' personal

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

10  agency.

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

12  regulations of the facility and an explanation of the

13  responsibility of the resident to obey all reasonable rules

14  and regulations of the facility and to respect the personal

15  rights and private property of the other residents.

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

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

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

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

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

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

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

23  reimbursement.  Any resident who is a recipient of assistance

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

25  designee or legal representative, shall be informed by the

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

27  hospitalization for the length of time for which Title XIX

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

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

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

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

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




  1  that the nursing home's occupancy rate ensures the

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

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

  4  promulgated or approved by the agency, Notice shall be

  5  provided within 24 hours of the hospitalization. A facility

  6  that has been reimbursed for reserving a bed and wrongfully

  7  refuses to readmit a resident within the prescribed time

  8  period shall refund the bed reservation compensation and shall

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

10  paragraph.

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

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

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

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

15         Section 4.  Section 400.0231, Florida Statutes, is

16  amended to read:

17         400.0231  Patient records; penalties for alteration.--

18         (1)  Every licensed facility shall keep complete and

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

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

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

22  medication, treatment, therapy or other medical or skilled

23  nursing care shall be contemporaneously documented in the

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

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

26  the resident's medical records creates a rebuttable

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

28  not provided. This presumption shall apply in disciplinary

29  proceedings by the agency or other regulatory entity against

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

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

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    34-792-99                                               See HB




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

  2  and convincing evidence.

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

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

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

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

  7  775.082 or s. 775.083.

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

  9  grounds for restriction, suspension, or termination of license

10  privileges.

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

12  of section 400.0255, Florida Statutes, are amended, present

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

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

15  are added to that section, to read:

16         400.0255  Resident hearings of facility decisions to

17  transfer or discharge.--

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

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

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

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

22  a bed within the same certified facility.

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

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

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

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

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

28  occur if the resident were discharged or transferred.

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

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

31  changed to the extent that the resident now needs additional

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




  1  or different treatments or advanced levels of care which the

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

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

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

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

  6  applies:

  7         (a)  The transfer or discharge is medically appropriate

  8  because the resident's health has improved sufficiently that

  9  the resident no longer needs the services provided by the

10  facility;

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

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

13  the facility;

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

15  endangered;

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

17  would otherwise be endangered;

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

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

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

21  who becomes eligible for Medicaid after admission to a

22  Medicaid-certified facility, the facility may charge a

23  resident only allowable charges under Medicaid; or

24         (f)  The facility ceases to operate.

25         (3)  When the facility transfers or discharges a

26  resident under any of the circumstances specified in

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

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

29  resident's physician under the circumstances specified in

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

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

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    34-792-99                                               See HB




  1         (5)(3)  At least 30 days prior to any proposed transfer

  2  or discharge, a facility must provide advance notice of the

  3  proposed transfer or discharge to the resident and, if known,

  4  to a family member or the resident's legal guardian or

  5  representative, except that, if in the following circumstances

  6  listed in paragraph (2)(b), paragraph (2)(c), or paragraph

  7  (2)(d) constitute an emergency as documented in the resident's

  8  medical records by the resident's physician, or by the medical

  9  director if the resident's physician is not available, the

10  facility shall give notice as soon as practicable before the

11  transfer or discharge.:

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

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

14  the facility, and the circumstances are documented in the

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

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

17  facility employees would be endangered, and the circumstances

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

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

20  physician is not available.

21         (6)(4)  The notice required by subsection (5) (3) must

22  be in writing and must contain all information required by

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

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

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

26  transmitted to the resident's legal guardian or representative

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

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

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

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

31  approved by the agency.

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    34-792-99                                               See HB




  1         (8)(6)  Notwithstanding paragraph (7)(b) (5)(b), an

  2  emergency discharge or transfer may be implemented as

  3  necessary pursuant to state or federal law during the period

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

  5  hearing decision is rendered.  Notice of an emergency

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

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

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

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

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

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

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

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

14  given the next working day.

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

16  Statutes, is amended to read:

17         400.063  Resident Protection Trust Fund.--

18         (1)  A Resident Protection Trust Fund shall be

19  established for the purpose of collecting and disbursing funds

20  generated from the license fees and administrative fines as

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

22  400.121(2), and 400.23(10)(9).  Such funds shall be for the

23  sole purpose of paying for the appropriate alternate

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

25  from a facility licensed under this part or a facility

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

27  that existing conditions or practices constitute an immediate

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

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

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

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

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

  2  residents in the facility pending removal and alternative

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

  4  under the direction and control of a receiver appointed

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

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

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

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

  9  authorized local order of evacuation of a facility by

10  emergency personnel to protect the health and safety of the

11  residents.

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

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

14         400.121  Denial, suspension, revocation of license;

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

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

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

18  collected by the agency as a setoff from amounts otherwise

19  payable by the state to the facility under the Florida

20  Medicaid program or any other program by which the agency

21  makes payments to the facility.  The collection method set

22  forth in this subsection shall be supplemental to any other

23  method which the agency may lawfully utilize.

24         (7)  Administrative proceedings challenging agency

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

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

27         Section 8.  Present subsection (2) of section 400.151,

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

29  subsection (2) is added to that section to read:

30         400.151  Contracts.--

31

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    34-792-99                                               See HB




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

  2  its contract or contracts with residents to the agency for

  3  approval.  The agency shall reject any contract which contains

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

  5  public policy as set forth in the Florida Statutes, and the

  6  facility shall submit revised contracts which cure the

  7  deficiencies found by the agency. If a facility is part of a

  8  continuing care facility certified under chapter 651, the

  9  review and approval of the contract or contracts shall be

10  completed by the Department of Insurance, which shall consult

11  with the agency regarding portions of contracts related to

12  nursing home care. Beginning 1 year after the effective date

13  of this subsection, a facility may not enter into a contract,

14  renew a contract, or enforce a contract with a resident unless

15  the form of the contract has been approved by the agency.

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

17  Statutes, is amended to read:

18         400.162  Property and personal affairs of residents.--

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

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

21  the facility.  Whenever necessary for the protection of

22  valuables, or in order to avoid unreasonable responsibility

23  therefor, the licensee may require that such valuables be

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

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

26  policies regarding the safekeeping of a resident's property

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

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

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

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

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

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

  2  by agency rule.

  3         2.  Marking each resident's personal property with

  4  identification numbers where feasible without defacing the

  5  item or reducing its value.

  6         3.  Securing residents' personal property.

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

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

  9  property worth $100 or more.

10         6.  Instructing facility staff regarding policies and

11  procedures to reduce theft and loss of residents' personal

12  property.

13         7.  Periodic review of these policies and procedures

14  for effectiveness, and revision if necessary.

15         8.  Posting notice of these policies and procedures,

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

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

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

19  are amended, present subsections (3) through (13) are

20  renumbered as subsections (4) through (14), respectively, and

21  a new subsection (3) is added to that section, to read:

22         400.23  Rules; criteria; Nursing Home Advisory

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

24  plans.--

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

26  staffing requirements for nursing homes.  These requirements

27  shall include, for each nursing home facility:

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

29  director of nursing.

30

31

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    34-792-99                                               See HB




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

  2  one licensed or registered nurse as assistant director of

  3  nursing.

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

  5  director of inservice education.

  6         (d)  The following number of licensed or certified

  7  nursing personnel, including registered nurses, licensed

  8  practical nurses, and certified nursing assistants, for every

  9  day, by shift:

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

11  every five residents.

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

13  every 10 residents.

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

15  every 15 residents.

16         (e)  The following number of registered nurses or

17  licensed practical nurses, in addition to the licensed or

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

19  every day, by shift:

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

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

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

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

24  every day.

25

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

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

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

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

30  provide that the staffing requirements provided in this

31  subsection apply to all nursing home residents, including

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

  2  any special care needs of residents; and that staffing

  3  assignments must be made based on accurate acuity levels and

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

  5  restorative care.  The requirements provided in this

  6  subsection must be enforced for all residents, regardless of

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

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

  9  keep records showing the names, registration or certification

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

11  facility staff or contract personnel actually on duty at the

12  facility during each shift, together with documentation of any

13  instances in which such actual staffing falls short of the

14  minimum staffing levels required by agency rules pursuant to

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

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

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

18  facility fell short of the prescribed minimum staffing levels.

19         (5)(4)  The agency, in collaboration with the Division

20  of Children's Medical Services Program Office of the

21  Department of Health and Rehabilitative Services, must, no

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

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

24  in nursing home facilities.  The rules must include a

25  methodology for reviewing a nursing home facility under ss.

26  408.031-408.045 which serves only persons under 21 years of

27  age.

28         (7)(6)  There is created the Nursing Home Advisory

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

30  appointed by and report directly to the director of the

31  agency. The membership is to include:

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    34-792-99                                               See HB




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

  2         (b)  Two representatives from the Florida Health Care

  3  Association.

  4         (c)  Two representatives from the Florida Association

  5  of Homes for the Aging.

  6         (d)  One representative from the Department of Elderly

  7  Affairs.

  8         (e)  Six Five consumer members representatives, at

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

10  or a district nursing home and long-lerm care Facility

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

12  representative of the Florida Life Care Resident's

13  Association.

14         (f)  One representative from the Florida American

15  Medical Directors Association.

16         (g)  One representative from the Florida Association of

17  Directors of Nursing Administrators.

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

19  Administration.

20         (i)  One representative from the nursing home industry

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

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

23  association.

24

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

26         (9)(8)  The agency shall, at least every 15 months,

27  evaluate all nursing home facilities and make a determination

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

29  established rules adopted under this part as a basis for

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

31  its evaluation on the most recent inspection report, taking

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




  1  into consideration findings from other official reports,

  2  surveys, interviews, investigations, and inspections.  The

  3  agency shall assign one of the following ratings to each

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

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

  6  upon finding that the facility no longer qualifies for its

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

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

  9  the agency shall issue an amended license showing the new

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

11  retroactive to the beginning of the licensing period.

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

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

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

15  in substantial compliance at the time of the survey with

16  criteria established under this part, with rules adopted by

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

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

19  100-203) (December 22, 1987), Title IV (Medicare, Medicaid,

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

21  Reform), as amended.

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

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

24  or class III deficiencies not corrected within the time

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

26  the time of the survey with criteria established under this

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

28  with rules adopted under the Omnibus Budget Reconciliation Act

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

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

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

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




  1  comes into substantial compliance at the time of the followup

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

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

  4  not qualify for consideration for a superior rating until the

  5  time of the next subsequent relicensure survey.

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

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

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

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

10  more than four class III deficiencies within the preceding 2

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

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

13  substantial compliance with the criteria established under

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

15  applicable, with rules adopted pursuant to the Omnibus Budget

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

17  1987), Title IV (Medicare, Medicaid, and Other Health-Related

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

19  the facility must exceed exceeds the criteria for a standard

20  rating through enhanced programs and services in all of the

21  following areas:

22         1.  Nursing service.

23         2.  Dietary or nutritional services.

24         3.  Physical environment.

25         4.  Housekeeping and maintenance.

26         5.  Restorative therapies and self-help activities.

27         6.  Social services.

28         7.  Activities and recreational therapy.

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

30  programs or facilitywide initiatives and promote creativity

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

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

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

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

  4  initiatives are developed to encompass the required areas or

  5  if standard measurements of patient outcomes and resident

  6  satisfaction for the facility are below the statewide average

  7  for facilities of its type.

  8         (e)  In determining the rating and evaluating the

  9  overall quality of care and services, the agency shall

10  consider the needs and limitations of residents in the

11  facility and the results of interviews and surveys of a

12  representative sampling of residents, families of residents,

13  ombudsman council members in the district in which the

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

15  nursing home facility.

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

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

18  the deficiencies of the facility shall be posted in a

19  prominent place that is in clear and unobstructed public view

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

21  that facility. Licensees receiving a conditional rating for a

22  facility shall prepare, within 10 working days after receiving

23  notice of deficiencies, a plan for correction of all

24  deficiencies and shall submit the plan to the agency for

25  approval. Correction of all deficiencies, within the period

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

27  conditional rating.  Failure to correct the deficiencies

28  within a reasonable period approved by the agency shall be

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

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

31  prominent place that is in clear and unobstructed public view

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

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

  3  rating in any nonpermanent medium and in accordance with rules

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

  5  superior rating shall be distributed to the state and district

  6  ombudsman councils.

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

  8  adopt rules that:

  9         1.  Establish uniform procedures for the evaluation of

10  facilities.

11         2.  Provide criteria in the areas referenced in

12  paragraph (c).

13         3.  Address other areas necessary for carrying out the

14  intent of this section.

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

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

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

18  substantial compliance with criteria established under this

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

20  with rules adopted under the Omnibus Budget Reconciliation Act

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

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

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

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

25  paragraph (c).

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

27  license, except when an existing facility is being relicensed

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

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

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

31  result of the relicensure.

                                  32

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




  1         (10)(9)  The agency shall adopt rules to provide that,

  2  when the criteria established under subsections subsection (2)

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

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

  5  indicate the classification on the face of the notice of

  6  deficiencies as follows:

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

  8  determines present an imminent danger to the residents or

  9  guests of the nursing home facility or a substantial

10  probability that death or serious physical harm would result

11  therefrom.  The condition or practice constituting a class I

12  violation shall be abated or eliminated immediately, unless a

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

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

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

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

17  every deficiency. A fine may be levied notwithstanding the

18  correction of the deficiency. For purposes of the rating

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

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

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

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

23  825.102, s. 825.1025, or s. 825.103 of the facility or an

24  employee or contractor of the facility wherein the victim was

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

26  deficiency if not also the subject of an agency disciplinary

27  proceeding.

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

29  determines have a direct or immediate relationship to the

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

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

                                  33

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

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

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

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

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

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

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

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

  9  contendere of a facility or a facility administrator for one

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

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

12  disciplinary proceeding. For purposes of the rating system

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

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

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

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

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

18  determines to have an indirect or potential relationship to

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

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

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

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

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

24  shall specify the time within which the deficiency is required

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

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

27  unless it is a repeated offense.

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

29  occurs constitutes a separate offense.  More than two

30  violations of the same class shall be treated as repeated

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

                                  34

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

  2  civil penalties for the third and subsequent offenses shall be

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

  4         (11)(10)  Civil penalties paid by any licensee under

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

  6  Protection Health Care Trust Fund and expended as provided in

  7  s. 400.063.

  8         Section 11.  Section 400.29, Florida Statutes, is

  9  amended to read:

10         400.29  Annual report of nursing home facilities.--The

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

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

13  information therein no less than monthly, making such updated

14  information available to the public on the Internet or other

15  speedy and inexpensive electronic means of public access. The

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

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

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

19  include, but not be limited to:

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

21  facilities in this state.

22         (2)  Whether such nursing home facilities are for

23  profit or not for profit proprietary or nonproprietary.

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

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

26  commonly used name of a chain or holding company that

27  ultimately owns the facility, if applicable.

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

29  administering the facility, if applicable.

30         (6)(5)  The total number of beds.

31         (7)(6)  The number of private and semiprivate rooms.

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




  1         (8)(7)  The religious affiliation, if any, of such

  2  nursing home facility.

  3         (9)(8)  The languages spoken by the administrator and

  4  staff of such nursing home facility.

  5         (10)(9)  Whether or not such nursing home facility

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

  7  (Medicaid) of the Social Security Act.

  8         (11)(10)  Recreational and other programs available.

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

10  patient outcomes and resident satisfaction within the

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

12  whichever period is longer.

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

14  and the fees or prices charged by the facility.

15         (14)  A summary of all official adverse findings

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

17  but not limited to:

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

19  agency.

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

21  exploitation under chapter 415, wherein the victim was a

22  resident of the facility and the perpetrator was the facility

23  or an employee or contractor of the facility.

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

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

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

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

28  of the facility or an employee or contractor of the facility

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

30  victim was a resident of the facility.

31

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

  2  of the facility or an employee or contractor of the facility

  3  under s. 400.0083 or s. 400.0085.

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

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

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

  7  400.023.

  8         Section 12.  Subsection (6) of section 415.107, Florida

  9  Statutes, 1998 Supplement, is amended to read:

10         415.107  Confidentiality of reports and records.--

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

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

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

14  of the department responsible for adult protective services,

15  the central abuse registry and tracking system, or the

16  appropriate state attorney or law enforcement agency,

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

18  This subsection grants protection only for the person who

19  reported the adult abuse, neglect, or exploitation and

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

21  subsection does not prohibit the subpoena of a person

22  reporting adult abuse, neglect, or exploitation when deemed

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

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

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

26  disclosed.

27         Section 13.  Present paragraphs (w) through (cc) of

28  subsection (2) of section 435.03, Florida Statutes, are

29  redesignated as paragraphs (x) through (dd), respectively, and

30  a new paragraph (w) is added to that subsection to read:

31         435.03  Level 1 screening standards.--

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




  1         (2)  Any person for whom employment screening is

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

  3  regardless of adjudication, or entered a plea of nolo

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

  5  the following provisions of the Florida Statutes or under any

  6  similar statute of another jurisdiction:

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

  8  exploitation of a nursing home resident.

  9         Section 14.  Present paragraphs (w) through (cc) of

10  subsection (2) of section 435.04, Florida Statutes, are

11  redesignated as paragraphs (x) through (dd), respectively, and

12  a new paragraph (w) is added to that subsection to read:

13         435.04  Level 2 screening standards.--

14         (2)  The security background investigations under this

15  section must ensure that no persons subject to the provisions

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

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

18  to, any offense prohibited under any of the following

19  provisions of the Florida Statutes or under any similar

20  statute of another jurisdiction:

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

22  exploitation of a nursing home resident.

23         Section 15.  Section 825.1035, Florida Statutes, is

24  created to read:

25         825.1035  Report of abuse, neglect, or exploitation of

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

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

28  including any contractor or consultant working for such a

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

30  neglect, or exploitation of an elderly person or disabled

31  adult committed upon a resident of the facility in violation

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




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

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

  3  central abuse hotline of the Department of Children and Family

  4  Services pursuant to the requirements of chapter 415. An

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

  6  report required by this section commits a misdemeanor of the

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

  8  775.083.

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

10  394.4625, Florida Statutes, is amended to read:

11         394.4625  Voluntary admissions.--

12         (1)  AUTHORITY TO RECEIVE PATIENTS.--

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

14  response service or a licensed professional who is authorized

15  to initiate an involuntary examination pursuant to s. 394.463

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

17  must, pursuant to district procedure approved by the

18  respective district administrator, conduct an initial

19  assessment of the ability of the following persons to give

20  express and informed consent to treatment before such persons

21  may be admitted voluntarily:

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

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

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

25  person has been diagnosed as suffering from dementia.

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

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

28  400.0255(8)(6).

29         3.  A person for whom all decisions concerning medical

30  treatment are currently being lawfully made by the health care

31  surrogate or proxy designated under chapter 765.

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    Florida Senate - 1999                                   SB 942
    34-792-99                                               See HB




  1         Section 17.  This act shall take effect October 1,

  2  1999.

  3

  4            *****************************************

  5                       LEGISLATIVE SUMMARY

  6
      Creates the "Nursing Home Quality Improvement Act of
  7    1999." Requires the Agency for Health Care Administration
      to perform studies and make recommendations to the
  8    Legislature. Revises rights of nursing home residents and
      provides additional rights. Requires facilities to keep
  9    complete and accurate medical records and provides a
      rebuttable presumption, in the absence of such records,
10    that care or treatment was not provided. Provides
      definitions and requirements relating to transfer or
11    discharge of residents. Authorizes payment of facility
      fines or recovery costs using setoffs from amounts
12    payable to the facility by the state. Provides minimum
      requirements for policies regarding the safekeeping of
13    residents' property. Provides for minimum staffing
      requirements, recordkeeping therefor, and reports of
14    staffing shortfalls. Revises ratings requirements,
      provides additional acts classified as deficiencies,
15    provides penalties and increases maximum fines, and
      requires issuance of amended licenses reflecting facility
16    ratings changes. Requires inclusion of information on
      facility services, fees, and deficiencies in the agency's
17    annual report. Requires the report and monthly updates to
      be made available to the public. Requires nursing home
18    employees to report known abuse, neglect, or exploitation
      of a resident to law enforcement, provides a penalty for
19    failure to report, and provides for background employment
      screening of person convicted of this offense.
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