HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
CHAMBER ACTION
Senate House
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5 ORIGINAL STAMP BELOW
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11 Representative(s) Green offered the following:
12
13 Amendment (with title amendment)
14 Remove from the bill: Everything after the enacting clause
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16 and insert in lieu thereof:
17 Section 1. Subsection (4) of section 400.0073, Florida
18 Statutes, is amended to read:
19 400.0073 State and local ombudsman council
20 investigations.--
21 (4) In addition to any specific investigation made
22 pursuant to a complaint, the local ombudsman council shall
23 conduct, at least annually, an investigation, which shall
24 consist, in part, of an onsite administrative inspection, of
25 each nursing home or long-term care facility within its
26 jurisdiction. This inspection shall focus on the rights,
27 health, safety, and welfare of the residents.
28 Section 2. Section 400.021, Florida Statutes, is
29 amended to read:
30 400.021 Definitions.--When used in this part, unless
31 the context otherwise requires, the term:
1
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 (1) "Administrator" means the licensed individual who
2 has the general administrative charge of a facility.
3 (2) "Agency" means the Agency for Health Care
4 Administration, which is the licensing agency under this part.
5 (3) "Bed reservation policy" means the number of
6 consecutive days and the number of days per year that a
7 resident may leave the nursing home facility for overnight
8 therapeutic visits with family or friends or for
9 hospitalization for an acute condition before the licensee may
10 discharge the resident due to his or her absence from the
11 facility.
12 (4) "Board" means the Board of Nursing Home
13 Administrators.
14 (5) "Controlling interest" means:
15 (a) The applicant for licensure or a licensee;
16 (b) A person or entity that serves as an officer of,
17 is on the board of directors of, or has a 5 percent or greater
18 ownership interest in the management company or other entity,
19 related or unrelated, which the applicant or licensee may
20 contract with to operate the facility; or
21 (c) A person or entity that serves as an officer of,
22 is on the board of directors of, or has a 5 percent or greater
23 ownership interest in the applicant or licensee.
24
25 The term does not include a voluntary board member.
26 (6)(5) "Custodial service" means care for a person
27 which entails observation of diet and sleeping habits and
28 maintenance of a watchfulness over the general health, safety,
29 and well-being of the aged or infirm.
30 (7)(6) "Department" means the Department of Children
31 and Family Services.
2
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 (8)(7) "Facility" means any institution, building,
2 residence, private home, or other place, whether operated for
3 profit or not, including a place operated by a county or
4 municipality, which undertakes through its ownership or
5 management to provide for a period exceeding 24-hour nursing
6 care, personal care, or custodial care for three or more
7 persons not related to the owner or manager by blood or
8 marriage, who by reason of illness, physical infirmity, or
9 advanced age require such services, but does not include any
10 place providing care and treatment primarily for the acutely
11 ill. A facility offering services for fewer than three persons
12 is within the meaning of this definition if it holds itself
13 out to the public to be an establishment which regularly
14 provides such services.
15 (9)(8) "Geriatric outpatient clinic" means a site for
16 providing outpatient health care to persons 60 years of age or
17 older, which is staffed by a registered nurse or a physician
18 assistant.
19 (10)(9) "Geriatric patient" means any patient who is
20 60 years of age or older.
21 (11)(10) "Local ombudsman council" means a local
22 long-term care ombudsman council established pursuant to s.
23 400.0069, located within the Older Americans Act planning and
24 service areas.
25 (12)(11) "Nursing home bed" means an accommodation
26 which is ready for immediate occupancy, or is capable of being
27 made ready for occupancy within 48 hours, excluding provision
28 of staffing; and which conforms to minimum space requirements,
29 including the availability of appropriate equipment and
30 furnishings within the 48 hours, as specified by rule of the
31 agency, for the provision of services specified in this part
3
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 to a single resident.
2 (13)(12) "Nursing home facility" means any facility
3 which provides nursing services as defined in part I of
4 chapter 464 and which is licensed according to this part.
5 (14)(13) "Nursing service" means such services or acts
6 as may be rendered, directly or indirectly, to and in behalf
7 of a person by individuals as defined in s. 464.003.
8 (15)(14) "Planning and service area" means the
9 geographic area in which the Older Americans Act programs are
10 administered and services are delivered by the Department of
11 Elderly Affairs.
12 (16)(15) "Respite care" means admission to a nursing
13 home for the purpose of providing a short period of rest or
14 relief or emergency alternative care for the primary caregiver
15 of an individual receiving care at home who, without
16 home-based care, would otherwise require institutional care.
17 (17)(16) "Resident care plan" means a written plan
18 developed, maintained, and reviewed not less than quarterly by
19 a registered nurse, with participation from other facility
20 staff and the resident or his or her designee or legal
21 representative, which includes a comprehensive assessment of
22 the needs of an individual resident, the type and frequency of
23 services required to provide the necessary care for the
24 resident to attain or maintain the highest practicable
25 physical, mental, and psychosocial well-being, a listing of
26 services provided within or outside the facility to meet those
27 needs, and an explanation of service goals. The resident care
28 plan must be signed by the director of nursing and the
29 resident, the resident's designee, or the resident's legal
30 representative.
31 (18)(17) "Resident designee" means a person, other
4
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 than the owner, administrator, or employee of the facility,
2 designated in writing by a resident or a resident's guardian,
3 if the resident is adjudicated incompetent, to be the
4 resident's representative for a specific, limited purpose.
5 (19)(18) "State ombudsman council" means the State
6 Long-Term Care Ombudsman Council established pursuant to s.
7 400.0067.
8 (20) "Voluntary board member" means a director of a
9 not-for-profit corporation or organization who serves solely
10 in a voluntary capacity for the corporation or organization,
11 does not receive any remuneration for his or her services on
12 the board of directors, and has no financial interest in the
13 corporation or organization. The agency shall recognize a
14 person as a voluntary board member following submission of a
15 statement to the agency by the director and the not-for-profit
16 corporation or organization which affirms that the director
17 conforms to this definition. The statement affirming the
18 status of the director must be submitted to the agency on a
19 form provided by the agency.
20 Section 3. The Agency for Health Care Administration
21 and the Office of the Attorney General shall jointly study the
22 potential use of electronic monitoring devices in nursing home
23 facilities licensed under part II of chapter 400, Florida
24 Statutes. The study shall include, but not be limited to, a
25 review of the current use of electronic monitoring devices by
26 nursing home facilities and their residents and other health
27 care facilities, an analysis of other state laws and proposed
28 legislation related to the mandated use of electronic
29 monitoring devices in nursing home facilities, an analysis of
30 the potential ramifications of requiring facilities to install
31 such devices when requested by or on behalf of a resident, the
5
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 impact of the devices on the privacy and dignity of both the
2 resident on whose behalf the device is installed and other
3 residents who may be affected by the device, the potential
4 impact on improving the care of residents, the potential
5 impact on the care environment and on staff recruitment and
6 retention, appropriate uses of any tapes if mandated by law,
7 including methods and time frames for reporting any
8 questionable incidents to the facility and appropriate
9 regulatory agencies, appropriate security needed to protect
10 the integrity of tapes for both the protection of the resident
11 and direct care staff, and the potential ramifications on the
12 care environment of allowing the use of recorded tapes in
13 legal proceedings, including any exceptions that should apply
14 if prohibited. The Agency for Health Care Administration shall
15 have the lead on the study and shall submit the findings and
16 recommendations of the study to the Governor, the Speaker of
17 the House of Representatives and the President of the Senate
18 by January 1, 2002.
19 Section 4. Effective May 15, 2001, and applying to
20 causes of action accruing on or after that date, section
21 400.023, Florida Statutes, is amended to read:
22 400.023 Civil enforcement.--
23 (1) Any resident whose rights as specified in this
24 part are violated deprived or infringed upon shall have a
25 cause of action against any licensee responsible for the
26 violation. The action may be brought by the resident or his or
27 her guardian, by a person or organization acting on behalf of
28 a resident with the consent of the resident or his or her
29 guardian, or by the personal representative of the estate of a
30 deceased resident regardless of the cause of death. If the
31 action alleges a claim for the resident's rights or for
6
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 negligence that caused the death of the resident, the claimant
2 shall be required to elect either survival damages pursuant to
3 s. 46.021 or wrongful death damages pursuant to s. 768.21 when
4 the cause of death resulted from the deprivation or
5 infringement of the decedent's rights. If the action alleges a
6 claim for the resident's rights or for negligence that did not
7 cause the death of the resident, the personal representative
8 of the estate may recover damages for the negligence that
9 caused injury to the resident. The action may be brought in
10 any court of competent jurisdiction to enforce such rights and
11 to recover actual and punitive damages for any violation of
12 deprivation or infringement on the rights of a resident or for
13 negligence. Any resident who prevails in seeking injunctive
14 relief or a claim for an administrative remedy is entitled to
15 recover the costs of the action, and a reasonable attorney's
16 fee assessed against the defendant not to exceed $25,000. Fees
17 shall be awarded solely for the injunctive or administrative
18 relief and not for any claim or action for damages whether
19 such claim or action is brought together with a request for an
20 injunction or administrative relief or as a separate action,
21 except as provided under s. 768.79 or the Florida Rules of
22 Civil Procedure. Sections 400.023-400.0238 provide the
23 exclusive remedy for a cause of action for recovery of damages
24 for the personal injury or death of a nursing home resident
25 arising out of negligence or a violation of rights specified
26 in s. 400.022. This section does not preclude theories of
27 recovery not arising out of negligence or s. 400.022 which are
28 available to a resident or to the agency. The provisions of
29 chapter 766 do not apply to any cause of action brought under
30 ss. 400.023-400.0238. Any plaintiff who prevails in any such
31 action may be entitled to recover reasonable attorney's fees,
7
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 costs of the action, and damages, unless the court finds that
2 the plaintiff has acted in bad faith, with malicious purpose,
3 and that there was a complete absence of a justiciable issue
4 of either law or fact. A prevailing defendant may be entitled
5 to recover reasonable attorney's fees pursuant to s. 57.105.
6 The remedies provided in this section are in addition to and
7 cumulative with other legal and administrative remedies
8 available to a resident and to the agency.
9 (2) In any claim brought pursuant to this part
10 alleging a violation of resident's rights or negligence
11 causing injury to or the death of a resident, the claimant
12 shall have the burden of proving, by a preponderance of the
13 evidence, that:
14 (a) The defendant owed a duty to the resident;
15 (b) The defendant breached the duty to the resident;
16 (c) The breach of the duty is a legal cause of loss,
17 injury, death or damage to the resident; and
18 (d) The resident sustained loss, injury, death or
19 damage as a result of the breach.
20
21 Nothing in this part shall be interpreted to create strict
22 liability. A violation of the rights set forth in s. 400.022
23 or in any other standard or guidelines specified in this part
24 or in any applicable administrative standard or guidelines of
25 this state or a federal regulatory agency shall be evidence of
26 negligence but shall not be considered negligence per se.
27 (2) Attorneys' fees shall be based on the following
28 criteria:
29 (a) The time and labor required;
30 (b) The novelty and difficulty of the questions;
31 (c) The skill requisite to perform the legal service
8
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 properly;
2 (d) The preclusion of other employment by the attorney
3 due to the acceptance of the case;
4 (e) The customary fee;
5 (f) Whether the fee is fixed or contingent;
6 (g) The amount involved or the results obtained;
7 (h) The experience, reputation, and ability of the
8 attorneys;
9 (i) The costs expended to prosecute the claim;
10 (j) The type of fee arrangement between the attorney
11 and the client;
12 (k) Whether the relevant market requires a contingency
13 fee multiplier to obtain competent counsel;
14 (l) Whether the attorney was able to mitigate the risk
15 of nonpayment in any way.
16 (3) In any claim brought pursuant to s. 400.023, a
17 licensee, person or entity shall have a duty to exercise
18 reasonable care. Reasonable care is that degree of care which
19 a reasonably careful licensee, person or entity would use
20 under like circumstances.
21 (4) In any claim for resident's rights violation or
22 negligence by a nurse licensed under Part I of chapter 464,
23 such nurse shall have the duty to exercise care consistent
24 with the prevailing professional standard of care for a nurse.
25 The prevailing professional standard of care for a nurse shall
26 be that level of care, skill, and treatment which, in light of
27 all relevant surrounding circumstances is recognized as
28 acceptable and appropriate by reasonably prudent similar
29 nurses.
30 (5)(3) A licensee shall not be liable for the medical
31 negligence of any physician rendering care or treatment to the
9
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 resident except for the administrative services of a medical
2 director as required in this part. Nothing in this subsection
3 shall be construed to protect a licensee, person, or entity
4 from liability for failure to provide a resident with
5 appropriate observation, assessment, nursing diagnosis,
6 planning, intervention, and evaluation of care by nursing
7 staff.
8 (6) The resident or the resident's legal
9 representative shall serve a copy of any complaint alleging in
10 whole or in part a violation of any rights specified in this
11 part to the Agency for Health Care Administration at the time
12 of filing the initial complaint with the clerk of the court
13 for the county in which the action is pursued. The requirement
14 of providing a copy of the complaint to the agency does not
15 impair the resident's legal rights or ability to seek relief
16 for his or her claim.
17 (7) An action under this part for a violation of
18 rights or negligence recognized herein is not a claim for
19 medical malpractice, and the provision of s. 768.21(8) do not
20 apply to a claim alleging death of the resident.
21 (4) Claimants alleging a deprivation or infringement
22 of adequate and appropriate health care pursuant to s.
23 400.022(1)(k) which resulted in personal injury to or the
24 death of a resident shall conduct an investigation which shall
25 include a review by a licensed physician or registered nurse
26 familiar with the standard of nursing care for nursing home
27 residents pursuant to this part. Any complaint alleging such
28 a deprivation or infringement shall be accompanied by a
29 verified statement from the reviewer that there exists reason
30 to believe that a deprivation or infringement occurred during
31 the resident's stay at the nursing home. Such opinion shall
10
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 be based on records or other information available at the time
2 that suit is filed. Failure to provide records in accordance
3 with the requirements of this chapter shall waive the
4 requirement of the verified statement.
5 (5) For the purpose of this section, punitive damages
6 may be awarded for conduct which is willful, wanton, gross or
7 flagrant, reckless, or consciously indifferent to the rights
8 of the resident.
9 (6) To recover attorney's fees under this section, the
10 following conditions precedent must be met:
11 (a) Within 120 days after the filing of a responsive
12 pleading or defensive motion to a complaint brought under this
13 section and before trial, the parties or their designated
14 representatives shall meet in mediation to discuss the issues
15 of liability and damages in accordance with this paragraph for
16 the purpose of an early resolution of the matter.
17 1. Within 60 days after the filing of the responsive
18 pleading or defensive motion, the parties shall:
19 a. Agree on a mediator. If the parties cannot agree on
20 a mediator, the defendant shall immediately notify the court,
21 which shall appoint a mediator within 10 days after such
22 notice.
23 b. Set a date for mediation.
24 c. Prepare an order for the court that identifies the
25 mediator, the scheduled date of the mediation, and other terms
26 of the mediation. Absent any disagreement between the parties,
27 the court may issue the order for the mediation submitted by
28 the parties without a hearing.
29 2. The mediation must be concluded within 120 days
30 after the filing of a responsive pleading or defensive motion.
31 The date may be extended only by agreement of all parties
11
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 subject to mediation under this subsection.
2 3. The mediation shall be conducted in the following
3 manner:
4 a. Each party shall ensure that all persons necessary
5 for complete settlement authority are present at the
6 mediation.
7 b. Each party shall mediate in good faith.
8 4. All aspects of the mediation which are not
9 specifically established by this subsection must be conducted
10 according to the rules of practice and procedure adopted by
11 the Supreme Court of this state.
12 (b) If the parties do not settle the case pursuant to
13 mediation, the last offer of the defendant made at mediation
14 shall be recorded by the mediator in a written report that
15 states the amount of the offer, the date the offer was made in
16 writing, and the date the offer was rejected. If the matter
17 subsequently proceeds to trial under this section and the
18 plaintiff prevails but is awarded an amount in damages,
19 exclusive of attorney's fees, which is equal to or less than
20 the last offer made by the defendant at mediation, the
21 plaintiff is not entitled to recover any attorney's fees.
22 (c) This subsection applies only to claims for
23 liability and damages and does not apply to actions for
24 injunctive relief.
25 (d) This subsection applies to all causes of action
26 that accrue on or after October 1, 1999.
27 (7) Discovery of financial information for the purpose
28 of determining the value of punitive damages may not be had
29 unless the plaintiff shows the court by proffer or evidence in
30 the record that a reasonable basis exists to support a claim
31 for punitive damages.
12
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 (8) In addition to any other standards for punitive
2 damages, any award of punitive damages must be reasonable in
3 light of the actual harm suffered by the resident and the
4 egregiousness of the conduct that caused the actual harm to
5 the resident.
6 Section 5. Effective May 15, 2001, and applying to
7 causes of action accruing on or after that date, section
8 400.0233, Florida Statutes, is created to read:
9 400.0233 Presuit notice; investigation; notification
10 of violation of resident's rights or alleged negligence;
11 claims evaluation procedure; informal discovery; review.--
12 (1) As used in this section, the term:
13 (a) "Claim for resident's rights violation or
14 negligence" means a negligence claim alleging injury to or the
15 death of a resident arising out of an asserted violation of
16 the rights of a resident under s. 400.022 or an asserted
17 deviation from the applicable standard of care.
18 (b) "Insurer" means any self-insurer authorized under
19 s. 627.357, liability insurance carrier, Joint Underwriting
20 Association, or any uninsured prospective defendant.
21 (2) Prior to filing a claim for a violation of a
22 resident's rights or a claim for negligence, a claimant
23 alleging injury to or the death of a resident shall notify
24 each prospective defendant by certified mail, return receipt
25 requested, of an asserted violation of a resident's rights
26 provided in s. 400.022 or deviation from the standard of care.
27 Such notification shall include an identification of the
28 rights the prospective defendant has violated and the
29 negligence alleged to have caused the incident or incidents
30 and a brief description of the injuries sustained by the
31 resident which are reasonably identifiable at the time of
13
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 notice. The notice shall contain a certificate of counsel that
2 counsel's reasonable investigation gave rise to a good-faith
3 belief that grounds exist for an action against each
4 prospective defendant.
5 (3)(a) No suit may be filed for a period of 75 days
6 after notice is mailed to any prospective defendant. During
7 the 75-day period, the prospective defendants or their
8 insurers shall conduct an evaluation of the claim to determine
9 the liability of each defendant and to evaluate the damages of
10 the claimants. Each defendant or insurer of the defendant
11 shall have a procedure for the prompt evaluation of claims
12 during the 75-day period. The procedure shall include one or
13 more of the following:
14 1. Internal review by a duly qualified facility risk
15 manager or claims adjuster;
16 2. Internal review by counsel for each prospective
17 defendant;
18 3. A quality assurance committee authorized under any
19 applicable state or federal statutes or regulations;
20 4. Any other similar procedure that fairly and
21 promptly evaluates the claims.
22
23 Each defendant or insurer of the defendant shall evaluate the
24 claim in good faith.
25 (b) At or before the end of the 75 days, the defendant
26 or insurer of the defendant shall provide the claimant with a
27 written response:
28 1. Rejecting the claim; or
29 2. Making a settlement offer.
30 (c) The response shall be delivered to the claimant if
31 not represented by counsel or to the claimant's attorney, by
14
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 certified mail, return receipt requested. Failure of the
2 prospective defendant or insurer of the defendant to reply to
3 the notice within 75 days after receipt shall be deemed a
4 rejection of the claim for purposes of this section.
5 (4) The notification of a violation of a resident's
6 rights or alleged negligence shall be served within the
7 applicable statute of limitations period; however, during the
8 75-day period, the statute of limitations is tolled as to all
9 prospective defendants. Upon stipulation by the parties, the
10 75-day period may be extended and the statute of limitations
11 is tolled during any such extension. Upon receiving written
12 notice by certified mail, return receipt requested, of
13 termination of negotiations in an extended period, the
14 claimant shall have 60 days or the remainder of the period of
15 the statute of limitations, whichever is greater, within which
16 to file suit.
17 (5) No statement, discussion, written document,
18 report, or other work product generated by presuit claims
19 evaluation procedures under this section is discoverable or
20 admissible in any civil action for any purpose by the opposing
21 party. All participants, including, but not limited to,
22 physicians, investigators, witnesses, and employees or
23 associates of the defendant, are immune from civil liability
24 arising from participation in the presuit claims evaluation
25 procedure. Any licensed physician or registered nurse may be
26 retained by either party to provide an opinion regarding the
27 reasonable basis of the claim. The presuit opinions of the
28 expert are not discoverable or admissible in any civil action
29 for any purpose by the opposing party.
30 (6) Upon receipt by a prospective defendant of a
31 notice of claim, the parties shall make discoverable
15
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 information available without formal discovery as provided in
2 subsection (7).
3 (7) Informal discovery may be used by a party to
4 obtain unsworn statements and the production of documents or
5 things as follows:
6 (a) Unsworn statements.--Any party may require other
7 parties to appear for the taking of an unsworn statement.
8 Such statements may be used only for the purpose of claims
9 evaluation and are not discoverable or admissible in any civil
10 action for any purpose by any party. A party seeking to take
11 the unsworn statement of any party must give reasonable notice
12 in writing to all parties. The notice must state the time and
13 place for taking the statement and the name and address of the
14 party to be examined. Unless otherwise impractical, the
15 examination of any party must be done at the same time by all
16 other parties. Any party may be represented by counsel at the
17 taking of an unsworn statement. An unsworn statement may be
18 recorded electronically, stenographically, or on videotape.
19 The taking of unsworn statements is subject to the provisions
20 of the Florida Rules of Civil Procedure and may be terminated
21 for abuses.
22 (b) Documents or things.--Any party may request
23 discovery of relevant documents or things. The documents or
24 things must be produced, at the expense of the requesting
25 party, within 20 days after the date of receipt of the
26 request. A party is required to produce relevant and
27 discoverable documents or things within that party's
28 possession or control, if in good faith it can reasonably be
29 done within the timeframe of the claims evaluation process.
30 (8) Each request for and notice concerning informal
31 discovery pursuant to this section must be in writing, and a
16
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 copy thereof must be sent to all parties. Such a request or
2 notice must bear a certificate of service identifying the name
3 and address of the person to whom the request or notice is
4 served, the date of the request or notice, and the manner of
5 service thereof.
6 (9) If a prospective defendant makes a written
7 settlement offer, the claimant shall have 15 days from the
8 date of receipt to accept the offer. An offer shall be deemed
9 rejected unless accepted by delivery of a written notice of
10 acceptance.
11 (10) To the extent not inconsistent with this part,
12 the provisions of the Florida Mediation Code, Florida Rules of
13 Civil Procedure, shall be applicable to such proceedings.
14 (11) Within 30 days after the claimant's receipt of
15 the defendant's response to the claim, the parties or their
16 designated representatives shall meet in mediation to discuss
17 the issues of liability and damages in accordance with the
18 mediation rules of practice and procedures adopted by the
19 Supreme Court. Upon stipulation of the parties, this 30-day
20 period may be extended and the statute of limitations is
21 tolled during the mediation and any such extension. At the
22 conclusion of mediation the claimant shall have 60 days or the
23 remainder of the period of the statute of limitations,
24 whichever is greater, within which to file suit.
25 Section 6. Effective May 15, 2001, and applying to
26 causes of action accruing on or after that date, section
27 400.0234, Florida Statutes, is created to read:
28 400.0234 Availability of facility records for
29 investigation of resident's rights violations and defenses;
30 penalty.--
31 (1) Failure to provide complete copies of a resident's
17
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 records including, but not limited to, all medical records and
2 the resident's chart, within the control or possession of the
3 facility in accordance with s. 400.145 shall constitute
4 evidence of failure of that party to comply with good-faith
5 discovery requirements and shall waive the good-faith
6 certificate and presuit notice requirements under this part by
7 the requesting party.
8 (2) No facility shall be held liable for any civil
9 damages as a result of complying with this section.
10 Section 7. Effective May 15, 2001, and applying to
11 causes of action accruing on or after that date, section
12 400.0235, Florida Statutes, is created to read:
13 400.0235 Certain provisions not applicable to actions
14 under this part.--An action under this part for a violation of
15 rights or negligence recognized under this part is not a claim
16 for medical malpractice, and the provisions of s. 768.21(8) do
17 not apply to a claim alleging death of the resident.
18 Section 8. Effective May 15, 2001, section 400.0236,
19 Florida Statutes, is created to read:
20 400.0236 Statute of limitations.--
21 (1) Any action for damages brought under this part
22 shall be commenced within 2 years from the time the incident
23 giving rise to the action occurred or within 2 years from the
24 time the incident is discovered or should have been discovered
25 with the exercise of due diligence; however, in no event shall
26 the action be commenced later than 4 years from the date of
27 the incident or occurrence out of which the cause of action
28 accrued.
29 (2) In those actions covered by this subsection in
30 which it can be shown that fraudulent concealment or
31 intentional misrepresentation of fact prevented the discovery
18
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Amendment No. ___ (for drafter's use only)
1 of the injury, the period of limitations is extended forward 2
2 years from the time that the injury is discovered with the
3 exercise of due diligence, but in no event for more than 6
4 years from the date the incident giving rise to the injury
5 occurred.
6 (3) This section shall apply to causes of action that
7 have accrued prior to the effective date of this section;
8 however, any such cause of action that would not have been
9 barred under prior law may be brought within the time allowed
10 by prior law or within 2 years after the effective date of
11 this section, whichever is earlier, and will be barred
12 thereafter. In actions where it can be shown that fraudulent
13 concealment or intentional misrepresentation of fact prevented
14 the discovery of the injury, the period of limitations is
15 extended forward 2 years from the time that the injury is
16 discovered with the exercise of due diligence but in no event
17 more than 4 years from the effective date of this section.
18 Section 9. Section 400.0237, Florida Statutes, is
19 created to read:
20 400.0237 Punitive damages; pleading; burden of
21 proof.--
22 (1) In any action for damages brought under this part,
23 no claim for punitive damages shall be permitted unless there
24 is a reasonable showing by evidence in the record or proffered
25 by the claimant which would provide a reasonable basis for
26 recovery of such damages. The claimant may move to amend her
27 or his complaint to assert a claim for punitive damages as
28 allowed by the rules of civil procedure. The rules of civil
29 procedure shall be liberally construed so as to allow the
30 claimant discovery of evidence which appears reasonably
31 calculated to lead to admissible evidence on the issue of
19
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 punitive damages. No discovery of financial worth shall
2 proceed until after the pleading concerning punitive damages
3 is permitted.
4 (2) A defendant may be held liable for punitive
5 damages only if the trier of fact, based on clear and
6 convincing evidence, finds that the defendant was personally
7 guilty of intentional misconduct or gross negligence. As used
8 in this section, the term:
9 (a) "Intentional misconduct" means that the defendant
10 had actual knowledge of the wrongfulness of the conduct and
11 the high probability that injury or damage to the claimant
12 would result and, despite that knowledge, intentionally
13 pursued that course of conduct, resulting in injury or damage.
14 (b) "Gross negligence" means that the defendant's
15 conduct was so reckless or wanting in care that it constituted
16 a conscious disregard or indifference to the life, safety, or
17 rights of persons exposed to such conduct.
18 (3) In the case of an employer, principal,
19 corporation, or other legal entity, punitive damages may be
20 imposed for the conduct of an employee or agent only if the
21 conduct of the employee or agent meets the criteria specified
22 in subsection (2) and:
23 (a) The employer, principal, corporation, or other
24 legal entity actively and knowingly participated in such
25 conduct;
26 (b) The officers, directors, or managers of the
27 employer, principal, corporation, or other legal entity
28 condoned, ratified, or consented to such conduct; or
29 (c) The employer, principal, corporation, or other
30 legal entity engaged in conduct that constituted gross
31 negligence and that contributed to the loss, damages, or
20
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Amendment No. ___ (for drafter's use only)
1 injury suffered by the claimant.
2 (4) The plaintiff must establish at trial, by clear
3 and convincing evidence, its entitlement to an award of
4 punitive damages. The "greater weight of the evidence" burden
5 of proof applies to a determination of the amount of damages.
6 (5) This section is remedial in nature and shall take
7 effect upon becoming a law.
8 Section 10. Section 400.0238, Florida Statutes, is
9 created to read:
10 400.0238 Punitive damages; limitation.--
11 (1)(a) Except as provided in paragraphs (b) and (c),
12 an award of punitive damages may not exceed the greater of:
13 1. Three times the amount of compensatory damages
14 awarded to each claimant entitled thereto, consistent with the
15 remaining provisions of this section; or
16 2. The sum of $1 million.
17 (b) Where the fact finder determines that the wrongful
18 conduct proven under this section was motivated primarily by
19 unreasonable financial gain and determines that the
20 unreasonably dangerous nature of the conduct, together with
21 the high likelihood of injury resulting from the conduct, was
22 actually known by the managing agent, director, officer, or
23 other person responsible for making policy decisions on behalf
24 of the defendant, it may award an amount of punitive damages
25 not to exceed the greater of:
26 1. Four times the amount of compensatory damages
27 awarded to each claimant entitled thereto, consistent with the
28 remaining provisions of this section; or
29 2. The sum of $4 million.
30 (c) Where the fact finder determines that at the time
31 of injury the defendant had a specific intent to harm the
21
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Amendment No. ___ (for drafter's use only)
1 claimant and determines that the defendant's conduct did in
2 fact harm the claimant, there shall be no cap on punitive
3 damages.
4 (d) This subsection is not intended to prohibit an
5 appropriate court from exercising its jurisdiction under s.
6 768.74 in determining the reasonableness of an award of
7 punitive damages that is less than three times the amount of
8 compensatory damages.
9 (e) In any case in which the findings of fact support
10 an award of punitive damages pursuant to paragraph (b) or
11 paragraph (c), the clerk of the court shall refer the case to
12 the appropriate law enforcement agencies, to the state
13 attorney in the circuit where the long-term care facility that
14 is the subject of the underlying civil cause of action is
15 located, and, for multijurisdictional facility owners, to the
16 Office of the Statewide Prosecutor; and such agencies, state
17 attorney, or Office of the Statewide Prosecutor shall initiate
18 a criminal investigation into the conduct giving rise to the
19 award of punitive damages. All findings by the trier of fact
20 which support an award of punitive damages under this
21 paragraph shall be admissible as evidence in any subsequent
22 civil or criminal proceeding relating to the acts giving rise
23 to the award of punitive damages under this paragraph.
24 (2) The claimant's attorney's fees, if payable from
25 the judgment, are, to the extent that the fees are based on
26 the punitive damages, calculated based on the final judgment
27 for punitive damages. This subsection does not limit the
28 payment of attorney's fees based upon an award of damages
29 other than punitive damages.
30 (3) The jury may neither be instructed nor informed as
31 to the provisions of this section.
22
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 (4) Notwithstanding any other law to the contrary, the
2 amount of punitive damages awarded pursuant to this section
3 shall be equally divided between the claimant and the Quality
4 of Long-Term Care Facility Improvement Trust Fund, in
5 accordance with the following provisions:
6 (a) The clerk of the court shall transmit a copy of
7 the jury verdict to the State Treasurer by certified mail. In
8 the final judgment the court shall order the percentages of
9 the award, payable as provided herein.
10 (b) A settlement agreement entered into between the
11 original parties to the action after a verdict has been
12 returned must provide a proportionate share payable to the
13 Quality of Long-Term Care Facility Improvement Trust Fund
14 specified herein. For purposes of this paragraph, a
15 proportionate share is a 50-percent share of that percentage
16 of the settlement amount which the punitive damages portion of
17 the verdict bore to the total of the compensatory and punitive
18 damages in the verdict.
19 (c) The Department of Banking and Finance shall
20 collect or cause to be collected all payments due the state
21 under this section. Such payments are made to the Comptroller
22 and deposited in the appropriate fund specified in this
23 subsection.
24 (d) If the full amount of punitive damages awarded
25 cannot be collected, the claimant and the other recipient
26 designated pursuant to this subsection are each entitled to a
27 proportionate share of the punitive damages collected.
28 (5) This section is remedial in nature and shall take
29 effect upon becoming a law.
30 Section 11. Subsection (1) and paragraph (a) of
31 subsection (2) of section 768.735, Florida Statutes, are
23
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 amended and subsection (3) is added to that section to read:
2 768.735 Punitive damages; exceptions; limitation.--
3 (1) Sections 768.72(2)-(4), 768.725, and 768.73 do not
4 apply to any civil action based upon child abuse, abuse of the
5 elderly under chapter 415, or abuse of the developmentally
6 disabled or any civil action arising under chapter 400. Such
7 actions are governed by applicable statutes and controlling
8 judicial precedent. This section does not apply to claims
9 brought pursuant to s. 400.023 or s. 400.429.
10 (2)(a) In any civil action based upon child abuse,
11 abuse of the elderly under chapter 415, or abuse of the
12 developmentally disabled, or actions arising under chapter 400
13 and involving the award of punitive damages, the judgment for
14 the total amount of punitive damages awarded to a claimant may
15 not exceed three times the amount of compensatory damages
16 awarded to each person entitled thereto by the trier of fact,
17 except as provided in paragraph (b). This subsection does not
18 apply to any class action.
19 (3) This section is remedial in nature and shall take
20 effect upon becoming a law.
21 Section 12. Effective May 15, 2001, and applying to
22 causes of action accruing on or after that date, section
23 415.1111, Florida Statutes, is amended to read:
24 415.1111 Civil actions.--A vulnerable adult who has
25 been abused, neglected, or exploited as specified in this
26 chapter has a cause of action against any perpetrator and may
27 recover actual and punitive damages for such abuse, neglect,
28 or exploitation. The action may be brought by the vulnerable
29 adult, or that person's guardian, by a person or organization
30 acting on behalf of the vulnerable adult with the consent of
31 that person or that person's guardian, or by the personal
24
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 representative of the estate of a deceased victim without
2 regard to whether the cause of death resulted from the abuse,
3 neglect, or exploitation. The action may be brought in any
4 court of competent jurisdiction to enforce such action and to
5 recover actual and punitive damages for any deprivation of or
6 infringement on the rights of a vulnerable adult. A party who
7 prevails in any such action may be entitled to recover
8 reasonable attorney's fees, costs of the action, and damages.
9 The remedies provided in this section are in addition to and
10 cumulative with other legal and administrative remedies
11 available to a vulnerable adult. Notwithstanding the
12 foregoing, any civil action for damages against any licensee
13 or entity who establishes, controls, conducts, manages, or
14 operates a facility licensed under part II of chapter 400
15 relating to its operation of the licensed facility shall be
16 brought pursuant to s. 400.023, or against any licensee or
17 entity who establishes, controls, conducts, manages, or
18 operates a facility licensed under part III of chapter 400
19 relating to its operation of the licensed facility shall be
20 brought pursuant to s. 400.429. Such licensee or entity shall
21 not be vicariously liable for the acts or omissions of its
22 employees or agents or any other third party in an action
23 brought under this section.
24 Section 13. Subsection (17) is added to section
25 400.0255, Florida Statutes, to read:
26 400.0255 Resident transfer or discharge; requirements
27 and procedures; hearings.--
28 (17) The provisions of this section apply to transfers
29 or discharges that are initiated by the nursing home facility,
30 and not by the resident or by the resident's physician or
31 legal guardian or representative.
25
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 Section 14. Subsection (3) of section 400.062, Florida
2 Statutes, is amended to read:
3 400.062 License required; fee; disposition; display;
4 transfer.--
5 (3) The annual license fee required for each license
6 issued under this part shall be comprised of two parts. Part
7 I of the license fee shall be the basic license fee. The rate
8 per bed for the basic license fee shall be established
9 annually and shall be $50 per bed. The agency may adjust the
10 per bed licensure fees by the Consumer Price Index based on
11 the 12 months immediately preceding the increase must be
12 reasonably calculated to cover the cost of regulation under
13 this part, but may not exceed $35 per bed. Part II of the
14 license fee shall be the resident protection fee, which shall
15 be at the rate of not less than 25 cents per bed. The rate per
16 bed shall be the minimum rate per bed, and such rate shall
17 remain in effect until the effective date of a rate per bed
18 adopted by rule by the agency pursuant to this part. At such
19 time as the amount on deposit in the Resident Protection Trust
20 Fund is less than $1 million $500,000, the agency may adopt
21 rules to establish a rate which may not exceed $10 per bed.
22 The rate per bed shall revert back to the minimum rate per bed
23 when the amount on deposit in the Resident Protection Trust
24 Fund reaches $1 million $500,000, except that any rate
25 established by rule shall remain in effect until such time as
26 the rate has been equally required for each license issued
27 under this part. Any amount in the fund in excess of $2
28 million $800,000 shall revert to the Health Care Trust Fund
29 and may not be expended without prior approval of the
30 Legislature. The agency may prorate the annual license fee
31 for those licenses which it issues under this part for less
26
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 than 1 year. Funds generated by license fees collected in
2 accordance with this section shall be deposited in the
3 following manner:
4 (a) The basic license fee collected shall be deposited
5 in the Health Care Trust Fund, established for the sole
6 purpose of carrying out this part. When the balance of the
7 account established in the Health Care Trust Fund for the
8 deposit of fees collected as authorized under this section
9 exceeds one-third of the annual cost of regulation under this
10 part, the excess shall be used to reduce the licensure fees in
11 the next year.
12 (b) The resident protection fee collected shall be
13 deposited in the Resident Protection Trust Fund for the sole
14 purpose of paying, in accordance with the provisions of s.
15 400.063, for the appropriate alternate placement, care, and
16 treatment of a resident removed from a nursing home facility
17 on a temporary, emergency basis or for the maintenance and
18 care of residents in a nursing home facility pending removal
19 and alternate placement.
20 Section 15. Subsections (2) and (5) of section
21 400.071, Florida Statutes, are amended, and subsections (11)
22 and (12) are added to that section, to read:
23 400.071 Application for license.--
24 (2) The application shall be under oath and shall
25 contain the following:
26 (a) The name, address, and social security number of
27 the applicant if an individual; if the applicant is a firm,
28 partnership, or association, its name, address, and employer
29 identification number (EIN), and the name and address of any
30 controlling interest every member; if the applicant is a
31 corporation, its name, address, and employer identification
27
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 number (EIN), and the name and address of its director and
2 officers and of each person having at least a 5 percent
3 interest in the corporation; and the name by which the
4 facility is to be known.
5 (b) The name of any person whose name is required on
6 the application under the provisions of paragraph (a) and who
7 owns at least a 10 percent interest in any professional
8 service, firm, association, partnership, or corporation
9 providing goods, leases, or services to the facility for which
10 the application is made, and the name and address of the
11 professional service, firm, association, partnership, or
12 corporation in which such interest is held.
13 (c) The location of the facility for which a license
14 is sought and an indication, as in the original application,
15 that such location conforms to the local zoning ordinances.
16 (d) The name of the person or persons under whose
17 management or supervision the facility will be conducted and
18 the name of the its licensed administrator.
19 (e) A signed affidavit disclosing any financial or
20 ownership interest that a person or entity described in
21 paragraph (a) or paragraph (d) has held in the last 5 years in
22 any entity licensed by this state or any other state to
23 provide health or residential care which has closed
24 voluntarily or involuntarily; has filed for bankruptcy; has
25 had a receiver appointed; has had a license denied, suspended,
26 or revoked; or has had an injunction issued against it which
27 was initiated by a regulatory agency. The affidavit must
28 disclose the reason any such entity was closed, whether
29 voluntarily or involuntarily.
30 (f)(e) The total number of beds and the total number
31 of Medicare and Medicaid certified beds.
28
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Amendment No. ___ (for drafter's use only)
1 (g)(f) Information relating to the number, experience,
2 and training of the employees of the facility and of the moral
3 character of the applicant and employees which the agency
4 requires by rule, including the name and address of any
5 nursing home with which the applicant or employees have been
6 affiliated through ownership or employment within 5 years of
7 the date of the application for a license and the record of
8 any criminal convictions involving the applicant and any
9 criminal convictions involving an employee if known by the
10 applicant after inquiring of the employee. The applicant must
11 demonstrate that sufficient numbers of qualified staff, by
12 training or experience, will be employed to properly care for
13 the type and number of residents who will reside in the
14 facility.
15 (h)(g) Copies of any civil verdict or judgment
16 involving the applicant rendered within the 10 years preceding
17 the application, relating to medical negligence, violation of
18 residents' rights, or wrongful death. As a condition of
19 licensure, the licensee agrees to provide to the agency copies
20 of any new verdict or judgment involving the applicant,
21 relating to such matters, within 30 days after filing with the
22 clerk of the court. The information required in this
23 paragraph shall be maintained in the facility's licensure file
24 and in an agency database which is available as a public
25 record.
26 (5) The applicant shall furnish satisfactory proof of
27 financial ability to operate and conduct the nursing home in
28 accordance with the requirements of this part and all rules
29 adopted under this part, and the agency shall establish
30 standards for this purpose, including information reported
31 under paragraph (2)(e). The agency also shall establish
29
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 documentation requirements, to be completed by each applicant,
2 that show anticipated facility revenues and expenditures, the
3 basis for financing the anticipated cash-flow requirements of
4 the facility, and an applicant's access to contingency
5 financing.
6 (11) The agency may issue an inactive license to a
7 nursing home that will be temporarily unable to provide
8 services but that is reasonably expected to resume services.
9 Such designation may be made for a period not to exceed 12
10 months but may be renewed by the agency for up to 6 additional
11 months. Any request by a licensee that a nursing home become
12 inactive must be submitted to the agency and approved by the
13 agency prior to initiating any suspension of service or
14 notifying residents. Upon agency approval, the nursing home
15 shall notify residents of any necessary discharge or transfer
16 as provided in s. 400.0255.
17 (12) As a condition of licensure, each facility must
18 establish and submit with its application a plan for quality
19 assurance and for conducting risk management.
20 Section 16. Subsection (1) of section 400.102, Florida
21 Statutes, is amended to read:
22 400.102 Action by agency against licensee; grounds.--
23 (1) Any of the following conditions shall be grounds
24 for action by the agency against a licensee:
25 (a) An intentional or negligent act materially
26 affecting the health or safety of residents of the facility;
27 (b) Misappropriation or conversion of the property of
28 a resident of the facility;
29 (c) Failure to follow the criteria and procedures
30 provided under part I of chapter 394 relating to the
31 transportation, voluntary admission, and involuntary
30
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 examination of a nursing home resident;
2 (d) Violation of provisions of this part or rules
3 adopted under this part; or
4 (e) Fraudulent altering, defacing, or falsifying any
5 medical or nursing home records, or causing or procuring any
6 of these offenses to be committed; or
7 (f)(e) Any act constituting a ground upon which
8 application for a license may be denied.
9 Section 17. Subsections (3) and (4) are added to
10 section 400.111, Florida Statutes, to read:
11 400.111 Expiration of license; renewal.--
12 (3) The agency may not renew a license if the
13 applicant has failed to pay any fines assessed by final order
14 of the agency or final order of the Health Care Financing
15 Administration under requirements for federal certification.
16 The agency may renew the license of an applicant following the
17 assessment of a fine by final order if such fine has been paid
18 into an escrow account pending an appeal of a final order.
19 (4) The licensee shall submit a signed affidavit
20 disclosing any financial or ownership interest that a licensee
21 has held within the last 5 years in any entity licensed by the
22 state or any other state to provide health or residential care
23 which entity has closed voluntarily or involuntarily; has
24 filed for bankruptcy; has had a receiver appointed; has had a
25 license denied, suspended, or revoked; or has had an
26 injunction issued against it which was initiated by a
27 regulatory agency. The affidavit must disclose the reason such
28 entity was closed, whether voluntarily or involuntarily.
29 Section 18. Subsection (2) of section 400.118, Florida
30 Statutes, is amended to read:
31 400.118 Quality assurance; early warning system;
31
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 monitoring; rapid response teams.--
2 (2)(a) The agency shall establish within each district
3 office one or more quality-of-care monitors, based on the
4 number of nursing facilities in the district, to monitor all
5 nursing facilities in the district on a regular, unannounced,
6 aperiodic basis, including nights, evenings, weekends, and
7 holidays. Quality-of-care monitors shall visit each nursing
8 facility at least quarterly. Priority for additional
9 monitoring visits shall be given to nursing facilities with a
10 history of resident patient care deficiencies. Quality-of-care
11 monitors shall be registered nurses who are trained and
12 experienced in nursing facility regulation, standards of
13 practice in long-term care, and evaluation of patient care.
14 Individuals in these positions shall not be deployed by the
15 agency as a part of the district survey team in the conduct of
16 routine, scheduled surveys, but shall function solely and
17 independently as quality-of-care monitors. Quality-of-care
18 monitors shall assess the overall quality of life in the
19 nursing facility and shall assess specific conditions in the
20 facility directly related to resident patient care, including
21 the operations of internal quality improvement and risk
22 management programs and adverse incident reports. The
23 quality-of-care monitor shall include in an assessment visit
24 observation of the care and services rendered to residents and
25 formal and informal interviews with residents, family members,
26 facility staff, resident guests, volunteers, other regulatory
27 staff, and representatives of a long-term care ombudsman
28 council or Florida advocacy council.
29 (b) Findings of a monitoring visit, both positive and
30 negative, shall be provided orally and in writing to the
31 facility administrator or, in the absence of the facility
32
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 administrator, to the administrator on duty or the director of
2 nursing. The quality-of-care monitor may recommend to the
3 facility administrator procedural and policy changes and staff
4 training, as needed, to improve the care or quality of life of
5 facility residents. Conditions observed by the quality-of-care
6 monitor which threaten the health or safety of a resident
7 shall be reported immediately to the agency area office
8 supervisor for appropriate regulatory action and, as
9 appropriate or as required by law, to law enforcement, adult
10 protective services, or other responsible agencies.
11 (c) Any record, whether written or oral, or any
12 written or oral communication generated pursuant to paragraph
13 (a) or paragraph (b) shall not be subject to discovery or
14 introduction into evidence in any civil or administrative
15 action against a nursing facility arising out of matters which
16 are the subject of quality-of-care monitoring, and a person
17 who was in attendance at a monitoring visit or evaluation may
18 not be permitted or required to testify in any such civil or
19 administrative action as to any evidence or other matters
20 produced or presented during the monitoring visits or
21 evaluations. However, information, documents, or records
22 otherwise available from original sources are not to be
23 construed as immune from discovery or use in any such civil or
24 administrative action merely because they were presented
25 during monitoring visits or evaluations, and any person who
26 participates in such activities may not be prevented from
27 testifying as to matters within his or her knowledge, but such
28 witness may not be asked about his or her participation in
29 such activities. The exclusion from the discovery or
30 introduction of evidence in any civil or administrative action
31 provided for herein shall not apply when the quality-of-care
33
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Amendment No. ___ (for drafter's use only)
1 monitor makes a report to the appropriate authorities
2 regarding a threat to the health or safety of a resident.
3 Section 19. Section 400.1183, Florida Statutes, is
4 created to read:
5 400.1183 Resident grievance procedures.--
6 (1) Every nursing home must have a grievance procedure
7 available to its residents and their families. The grievance
8 procedure must include:
9 (a) An explanation of how to pursue redress of a
10 grievance.
11 (b) The names, job titles, and telephone numbers of
12 the employees responsible for implementing the facility's
13 grievance procedure. The list must include the address and the
14 toll-free telephone numbers of the ombudsman and the agency.
15 (c) A simple description of the process through which
16 a resident may, at any time, contact the toll-free telephone
17 hotline of the ombudsman or the agency to report the
18 unresolved grievance.
19 (d) A procedure for providing assistance to residents
20 who cannot prepare a written grievance without help.
21 (2) Each facility shall maintain records of all
22 grievances and shall report annually to the agency the total
23 number of grievances handled, a categorization of the cases
24 underlying the grievances, and the final disposition of the
25 grievances.
26 (3) Each facility must respond to the grievance within
27 a reasonable time after its submission.
28 (4) The agency may investigate any grievance at any
29 time.
30 (5) The agency may impose an administrative fine, in
31 accordance with s. 400.121, against a nursing home facility
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Amendment No. ___ (for drafter's use only)
1 for noncompliance with this section.
2 Section 20. Section 400.121, Florida Statutes, is
3 amended to read:
4 400.121 Denial, suspension, revocation of license;
5 moratorium on admissions; administrative fines; procedure;
6 order to increase staffing.--
7 (1) The agency may deny an application, revoke, or
8 suspend a license, or impose an administrative fine, not to
9 exceed $500 per violation per day, against any applicant or
10 licensee for the following violations by the applicant,
11 licensee, or other controlling interest: for
12 (a) A violation of any provision of s. 400.102(1);.
13 (b) A demonstrated pattern of deficient practice;
14 (c) Failure to pay any outstanding fines assessed by
15 final order of the agency or final order of the Health Care
16 Financing Administration pursuant to requirements for federal
17 certification. The agency may renew or approve the license of
18 an applicant following the assessment of a fine by final order
19 if such fine has been paid into an escrow account pending an
20 appeal of a final order;
21 (d) Exclusion from the Medicare or Medicaid program;
22 or
23 (e) An adverse action by a regulatory agency against
24 any other licensed facility that has a common controlling
25 interest with the licensee or applicant against whom the
26 action under this section is being brought. If the adverse
27 action involves solely the management company, the applicant
28 or licensee shall be given 30 days to remedy before final
29 action is taken. If the adverse action is based solely upon
30 actions by a controlling interest, the applicant or licensee
31 may present factors in mitigation of any proposed penalty
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Amendment No. ___ (for drafter's use only)
1 based upon a showing that such penalty is inappropriate under
2 the circumstances.
3
4 All hearings shall be held within the county in which the
5 licensee or applicant operates or applies for a license to
6 operate a facility as defined herein.
7 (2) Except as provided in s. 400.23(8), a $500 fine
8 shall be imposed The agency, as a part of any final order
9 issued by it under this part, may impose such fine as it deems
10 proper, except that such fine may not exceed $500 for each
11 violation. Each day a violation of this part occurs
12 constitutes a separate violation and is subject to a separate
13 fine, but in no event may any fine aggregate more than $5,000.
14 A fine may be levied pursuant to this section in lieu of and
15 notwithstanding the provisions of s. 400.23. Fines paid by any
16 nursing home facility licensee under this subsection shall be
17 deposited in the Resident Protection Trust Fund and expended
18 as provided in s. 400.063.
19 (3) The agency shall revoke or deny a nursing home
20 license if the licensee or controlling interest operates a
21 facility in this state that:
22 (a) Has had two moratoria imposed by final order for
23 substandard quality of care, as defined by Title 42, C.F.R.
24 part 483, within any 30-month period;
25 (b) Is conditionally licensed for 180 or more
26 continuous days;
27 (c) Is cited for two class I deficiencies arising from
28 unrelated circumstances during the same survey or
29 investigation; or
30 (d) Is cited for two class I deficiencies arising from
31 separate surveys or investigations within a 30-month period.
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1
2 The licensee may present factors in mitigation of revocation,
3 and the agency may make a determination not to revoke a
4 license based upon a showing that revocation is inappropriate
5 under the circumstances.
6 (4)(3) The agency may issue an order immediately
7 suspending or revoking a license when it determines that any
8 condition in the facility presents a danger to the health,
9 safety, or welfare of the residents in the facility.
10 (5)(4)(a) The agency may impose an immediate
11 moratorium on admissions to any facility when the agency
12 determines that any condition in the facility presents a
13 threat to the health, safety, or welfare of the residents in
14 the facility.
15 (b) Where the agency has placed a moratorium on
16 admissions on any facility two times within a 7-year period,
17 the agency may suspend the license of the nursing home and the
18 facility's management company, if any. The licensee shall be
19 afforded an administrative hearing within 90 days after the
20 suspension to determine whether the license should be revoked.
21 During the suspension, the agency shall take the facility into
22 receivership and shall operate the facility.
23 (6)(5) An action taken by the agency to deny, suspend,
24 or revoke a facility's license under this part, in which the
25 agency claims that the facility owner or an employee of the
26 facility has threatened the health, safety, or welfare of a
27 resident of the facility, shall be heard by the Division of
28 Administrative Hearings of the Department of Management
29 Services within 60 120 days after the assignment of an
30 administrative law judge receipt of the facility's request for
31 a hearing, unless the time limitation is waived by both
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Amendment No. ___ (for drafter's use only)
1 parties. The administrative law judge must render a decision
2 within 30 days after receipt of a proposed recommended order.
3 This subsection does not modify the requirement that an
4 administrative hearing be held within 90 days after a license
5 is suspended under paragraph (4)(b).
6 (7)(6) The agency is authorized to require a facility
7 to increase staffing beyond the minimum required by law, if
8 the agency has taken administrative action against the
9 facility for care-related deficiencies directly attributable
10 to insufficient staff. Under such circumstances, the facility
11 may request an expedited interim rate increase. The agency
12 shall process the request within 10 days after receipt of all
13 required documentation from the facility. A facility that
14 fails to maintain the required increased staffing is subject
15 to a fine of $500 per day for each day the staffing is below
16 the level required by the agency.
17 (8) An administrative proceeding challenging an action
18 taken by the agency pursuant to this section shall be reviewed
19 on the basis of the facts and conditions that resulted in such
20 agency action.
21 (9) Notwithstanding any other provision of law to the
22 contrary, agency action in an administrative proceeding under
23 this section may be overcome by the licensee upon a showing by
24 a preponderance of the evidence to the contrary.
25 (10) In addition to any other sanction imposed under
26 this part, in any final order that imposes sanctions, the
27 agency may assess costs related to the investigation and
28 prosecution of the case. Payment of agency costs shall be
29 deposited into the Health Care Trust Fund.
30 Section 21. Subsection (12) is added to section
31 400.126, Florida Statutes, to read:
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Amendment No. ___ (for drafter's use only)
1 400.126 Receivership proceedings.--
2 (12) Concurrently with the appointment of a receiver,
3 the agency and the Department of Elderly Affairs shall
4 coordinate an assessment of each resident in the facility by
5 the Comprehensive Assessment and Review for Long-Term-Care
6 (CARES) Program for the purpose of evaluating each resident's
7 need for the level of care provided in a nursing facility and
8 the potential for providing such care in alternative settings.
9 If the CARES assessment determines that a resident could be
10 cared for in a less restrictive setting or does not meet the
11 criteria for skilled or intermediate care in a nursing home,
12 the department and agency shall refer the resident for such
13 care, as is appropriate for the resident. Residents referred
14 pursuant to this subsection shall be given primary
15 consideration for receiving services under the Community Care
16 for the Elderly program in the same manner as persons
17 classified to receive such services pursuant to s. 430.205.
18 Section 22. Subsections (14), (15), (16), (17), (18),
19 (19), and (20) are added to section 400.141, Florida Statutes,
20 to read:
21 400.141 Administration and management of nursing home
22 facilities.--Every licensed facility shall comply with all
23 applicable standards and rules of the agency and shall:
24 (14) Submit to the agency the information specified in
25 s. 400.071(2)(e) for a management company within 30 days after
26 the effective date of the management agreement.
27 (15) Submit semiannually to the agency, or more
28 frequently if requested by the agency, information regarding
29 facility staff-to-resident ratios, staff turnover, and staff
30 stability, including information regarding certified nursing
31 assistants, licensed nurses, the director of nursing, and the
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Amendment No. ___ (for drafter's use only)
1 facility administrator. For purposes of this reporting:
2 (a) Staff-to-resident ratios must be reported in the
3 categories specified in s. 400.23(3)(a) and applicable rules.
4 The ratio must be reported as an average for the most recent
5 calendar quarter.
6 (b) Staff turnover must be reported for the most
7 recent 12-month period ending on the last workday of the most
8 recent calendar quarter prior to the date the information is
9 submitted. The turnover rate must be computed quarterly, with
10 the annual rate being the cumulative sum of the quarterly
11 rates. the turnover rate is the total number of terminations
12 or separations experienced during the quarter, excluding any
13 employee terminated during a probationary period of 3 months
14 or less, divided by the total number of staff employed at the
15 end of the period for which the rate is computed, and
16 expressed as a percentage.
17 (c) The formula for determining staff stability is the
18 total number of employees that have been employed for more
19 than 12 months, divided by the total number of employees
20 employed at the end of the most recent calendar quarter, and
21 expressed as a percentage.
22 (d) A licensed facility shall impose a moratorium on
23 new admissions to the facility during any period that the
24 staff-to-resident ratio falls below the minimum required by
25 the agency.
26 (16) Report monthly the number of vacant beds in the
27 facility which are available for resident occupancy on the day
28 the information is reported.
29 (17) Notify a licensed physician when a resident
30 exhibits signs of dementia or cognitive impairment or has a
31 change of condition in order to rule out the presence of an
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Amendment No. ___ (for drafter's use only)
1 underlying physiological condition that may be contributing to
2 such dementia or impairment. The notification must occur
3 within 30 days after the acknowledgement of such signs by
4 facility staff. If an underlying condition is determined to
5 exist, the facility shall arrange, with the appropriate health
6 care provider, the necessary care and services to treat the
7 condition.
8 (18) If the facility implements a dining and
9 hospitality attendant program, ensure that the program is
10 developed and implemented under the supervision of the
11 facility director of nursing. A licensed nurse, licensed
12 speech or occupational therapist, or a registered dietitian
13 must conduct training of dining and hospitality attendants. A
14 person employed by a facility as a dining and hospitality
15 attendant must perform tasks under the direct supervision of a
16 licensed nurse.
17 (19) Report to the agency any filing for bankruptcy
18 protection by the facility or its parent corporation,
19 divestiture or spin-off of its assets, or corporate
20 reorganization within 30 days after the completion of such
21 activity.
22 (20) Maintain liability insurance coverage that is in
23 force at all times.
24 (21) Maintain in the medical record for each resident
25 a daily chart of certified nursing assistant services provided
26 to the resident. The certified nursing assistant who is caring
27 for the resident must complete this record by the end of his
28 or her shift. This record must indicate assistance with
29 activities of daily living, assistance with eating, and
30 assistance with drinking, and must record each offering of
31 nutrition and hydration for those residents whose plan of care
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Amendment No. ___ (for drafter's use only)
1 or assessment indicates a risk for malnutrition or
2 dehydration.
3
4 Facilities that have been awarded a Gold Seal under the
5 program established in s. 400.235 may develop a plan to
6 provide certified nursing assistant training as prescribed by
7 federal regulations and state rules and may apply to the
8 agency for approval of its program.
9 Section 23. Section 400.1413, Florida Statutes, is
10 created to read:
11 400.1413 Volunteers in nursing homes.--
12 (1) It is the intent of the Legislature to encourage
13 the involvement of volunteers in nursing homes in this state.
14 The Legislature also acknowledges that the licensee is
15 responsible for all the activities that take place in the
16 nursing home and recognizes the licensee's need to be aware of
17 and coordinate volunteer activities in the nursing home.
18 Therefore, a nursing home may require that volunteers:
19 (a) Sign in and out with staff of the nursing home
20 upon entering or leaving the facility.
21 (b) Wear an identification badge while in the
22 building.
23 (c) Participate in a facility orientation and training
24 program.
25 (2) This section does not affect the activities of
26 state or local long-term-care ombudsman councils authorized
27 under part I.
28 Section 24. Section 400.147, Florida Statutes, is
29 created to read:
30 400.147 Internal risk management and quality assurance
31 program.--
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Amendment No. ___ (for drafter's use only)
1 (1) Every facility shall, as part of its
2 administrative functions, establish an internal risk
3 management and quality assurance program, the purpose of which
4 is to assess resident care practices; review facility quality
5 indicators, facility incident reports, deficiencies cited by
6 the agency, and resident grievances; and develop plans of
7 action to correct and respond quickly to identified quality
8 deficiencies. The program must include:
9 (a) A designated person to serve as risk manager, who
10 is responsible for implementation and oversight of the
11 facility's risk management and quality assurance program as
12 required by this section.
13 (b) A risk management and quality assurance committee
14 consisting of the facility risk manager, the administrator,
15 the director of nursing, the medical director, and at least
16 three other members of the facility staff. The risk management
17 and quality assurance committee shall meet at least monthly.
18 (c) Policies and procedures to implement the internal
19 risk management and quality assurance program, which must
20 include the investigation and analysis of the frequency and
21 causes of general categories and specific types of adverse
22 incidents to residents.
23 (d) The development and implementation of an incident
24 reporting system based upon the affirmative duty of all health
25 care providers and all agents and employees of the licensed
26 health care facility to report adverse incidents to the risk
27 manager, or to his or her designee, within 3 business days
28 after their occurrence.
29 (e) The development of appropriate measures to
30 minimize the risk of adverse incidents to residents,
31 including, but not limited to, education and training in risk
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Amendment No. ___ (for drafter's use only)
1 management and risk prevention for all nonphysician personnel,
2 as follows:
3 1. Such education and training of all nonphysician
4 personnel must be part of their initial orientation; and
5 2. At least 1 hour of such education and training must
6 be provided annually for all nonphysician personnel of the
7 licensed facility working in clinical areas and providing
8 resident care.
9 (f) The analysis of resident grievances that relate to
10 resident care and the quality of clinical services.
11 (2) The internal risk management and quality assurance
12 program is the responsibility of the facility administrator.
13 (3) In addition to the programs mandated by this
14 section, other innovative approaches intended to reduce the
15 frequency and severity of adverse incidents to residents and
16 violations of residents' rights shall be encouraged and their
17 implementation and operation facilitated.
18 (4) Each internal risk management and quality
19 assurance program shall include the use of incident reports to
20 be filed with the risk manager and the facility administrator.
21 The risk manager shall have free access to all resident
22 records of the licensed facility. The incident reports are
23 part of the work papers of the attorney defending the licensed
24 facility in litigation relating to the licensed facility and
25 are subject to discovery, but are not admissible as evidence
26 in court. A person filing an incident report is not subject to
27 civil suit by virtue of such incident report. As a part of
28 each internal risk management and quality assurance program,
29 the incident reports shall be used to develop categories of
30 incidents which identify problem areas. Once identified,
31 procedures shall be adjusted to correct the problem areas.
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1 (5) For purposes of reporting to the agency under this
2 section, the term "adverse incident" means:
3 (a) An event over which facility personnel could
4 exercise control and which is associated in whole or in part
5 with the facility's intervention, rather than the condition
6 for which such intervention occurred, and which results in one
7 of the following:
8 1. Death;
9 2. Brain or spinal damage;
10 3. Permanent disfigurement;
11 4. Fracture or dislocation of bones or joints;
12 5. A limitation of neurological, physical, or sensory
13 function;
14 6. Any condition that required medical attention to
15 which the resident has not given his or her informed consent,
16 including failure to honor advanced directives; or
17 7. Any condition that required the transfer of the
18 resident, within or outside the facility, to a unit providing
19 a more acute level of care due to the adverse incident, rather
20 than the resident's condition prior to the adverse incident;
21 (b) Abuse, neglect, or exploitation as defined in s.
22 415.102;
23 (c) Abuse, neglect and harm as defined in s. 39.01;
24 (d) Resident elopement; or
25 (e) An event that is reported to law enforcement.
26 (6) The internal risk manager of each licensed
27 facility shall:
28 (a) Investigate every allegation of sexual misconduct
29 which is made against a member of the facility's personnel who
30 has direct patient contact when the allegation is that the
31 sexual misconduct occurred at the facility or at the grounds
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Amendment No. ___ (for drafter's use only)
1 of the facility;
2 (b) Report every allegation of sexual misconduct to
3 the administrator of the licensed facility; and
4 (c) Notify the resident representative or guardian of
5 the victim that an allegation of sexual misconduct has been
6 made and that an investigation is being conducted.
7 (7) The facility shall initiate an investigation and
8 shall notify the agency within 1 business day after the risk
9 manager or his or her designee has received a report pursuant
10 to paragraph (1)(d). The notification must be made in writing
11 and be provided electronically, by facsimile device or
12 overnight mail delivery. The notification must include
13 information regarding the identity of the affected resident,
14 the type of adverse incident, the initiation of an
15 investigation by the facility, and whether the events causing
16 or resulting in the adverse incident represent a potential
17 risk to any other resident. The notification is confidential
18 as provided by law and is not discoverable or admissible in
19 any civil or administrative action, except in disciplinary
20 proceedings by the agency or the appropriate regulatory board.
21 The agency may investigate, as it deems appropriate, any such
22 incident and prescribe measures that must or may be taken in
23 response to the incident. The agency shall review each
24 incident and determine whether it potentially involved conduct
25 by the health care professional who is subject to disciplinary
26 action, in which case the provisions of s. 456.073 shall
27 apply.
28 (8)(a) Each facility shall complete the investigation
29 and submit an adverse incident report to the agency for each
30 adverse incident within 15 calendar days after its occurrence.
31 If after a complete investigation, the risk manager determines
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Amendment No. ___ (for drafter's use only)
1 that the incident was not an adverse incident as defined in
2 subsection (5), the facility shall include this information in
3 the report. The agency shall develop a form for reporting this
4 information.
5 (b) The information reported to the agency pursuant to
6 paragraph (a) which relates to persons licensed under chapter
7 458, chapter 459, chapter 461, or chapter 466 shall be
8 reviewed by the agency. The agency shall determine whether any
9 of the incidents potentially involved conduct by a health care
10 professional who is subject to disciplinary action, in which
11 case the provisions of s. 456.073 shall apply.
12 (c) The report submitted to the agency must also
13 contain the name of the risk manager of the facility.
14 (d) The adverse incident report is confidential as
15 provided by law and is not discoverable or admissible in any
16 civil or administrative action, except in disciplinary
17 proceedings by the agency or the appropriate regulatory board.
18 (9) Each facility subject to this section shall report
19 monthly any liability claim filed against it. The report must
20 include the name of the resident, the date or dates of the
21 incident leading to the claim, if applicable, and the type of
22 injury or violation of rights alleged to have occurred. This
23 report is confidential as provided by law and is not
24 discoverable or admissible in any civil or administrative
25 action, except in such actions brought by the agency to
26 enforce the provisions of this part.
27 (10) The agency shall review, as part of its licensure
28 inspection process, the internal risk management and quality
29 assurance program at each facility regulated by this section
30 to determine whether the program meets standards established
31 in statutory laws and rules, is being conducted in a manner
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1 designed to reduce adverse incidents, and is appropriately
2 reporting incidents as required by this section.
3 (11) There is no monetary liability on the part of,
4 and a cause of action for damages may not arise against, any
5 risk manager for the implementation and oversight of the
6 internal risk management and quality assurance program in a
7 facility licensed under this part as required by this section,
8 or for any act or proceeding undertaken or performed within
9 the scope of the functions of such internal risk management
10 and quality assurance program if the risk manager acts without
11 intentional fraud.
12 (12) If the agency, through its receipt of the adverse
13 incident reports prescribed in subsection (7), or through any
14 investigation, has a reasonable belief that conduct by a staff
15 member or employee of a facility is grounds for disciplinary
16 action by the appropriate regulatory board, the agency shall
17 report this fact to the regulatory board.
18 (13) The agency may adopt rules to administer this
19 section.
20 (14) The agency shall annually submit to the
21 Legislature a report on nursing home adverse incidents. The
22 report must include the following information arranged by
23 county:
24 (a) The total number of adverse incidents.
25 (b) A listing, by category, of the types of adverse
26 incidents, the number of incidents occurring within each
27 category, and the type of staff involved.
28 (c) A listing, by category, of the types of injury
29 caused and the number of injuries occurring within each
30 category.
31 (d) Types of liability claims filed based on an
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1 adverse incident or reportable injury.
2 (e) Disciplinary action taken against staff,
3 categorized by type of staff involved.
4 (15) Information gathered by a credentialing
5 organization under a quality assurance program is not
6 discoverable from the credentialing organization. This
7 subsection does not limit discovery of, access to, or use of
8 facility records, including those records from which the
9 credentialing organization gathered its information.
10 Section 25. Section 400.148, Florida Statutes, is
11 created to read:
12 400.148 Medicaid "Up-or-Out" Quality of Care Contract
13 Management Program.--
14 (1) The Legislature finds that the federal Medicare
15 program has implemented successful models of managing the
16 medical and supportive-care needs of long-term nursing home
17 residents. These programs have maintained the highest
18 practicable level of good health and have the potential to
19 reduce the incidence of preventable illnesses among long-stay
20 residents of nursing homes, thereby increasing the quality of
21 care for residents and reducing the number of lawsuits against
22 nursing homes. Such models are operated at no cost to the
23 state.
24 (2) The Agency for Health Care Administration shall
25 develop a pilot project in selected counties to demonstrate
26 the effect of assigning skilled and trained medical personnel
27 to ensure the quality of care, safety, and continuity of care
28 for long-stay Medicaid recipients in the highest scoring
29 nursing homes in the Florida Nursing Home Guide on the date
30 the project is implemented. The agency is authorized to begin
31 the pilot project in the highest scoring homes in counties
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Amendment No. ___ (for drafter's use only)
1 where Evercare services are immediately available. On January
2 1 of each year of the pilot project the agency shall submit to
3 the fiscal and substantive committees of the Legislature and
4 to the Governor an assessment of the program and a proposal
5 for expansion of the program to additional facilities. The
6 staff of the pilot project shall assist regulatory staff in
7 imposing regulatory sanctions, including revocation of
8 licensure, pursuant to s. 400.121, against nursing homes that
9 have quality-of-care violations.
10 (3) The pilot project must ensure:
11 (a) Oversight and coordination of all aspects of a
12 resident's medical care and stay in a nursing home.
13 (b) Facilitation of close communication between the
14 resident, the resident's guardian or legal representative, the
15 resident's attending physician, the resident's family, and
16 staff of the nursing facility.
17 (c) Frequent onsite visits to the resident.
18 (d) Early detection of medical or quality problems
19 that have the potential to lead to adverse outcomes and
20 unnecessary hospitalization.
21 (e) Close communication with regulatory staff.
22 (f) Immediate investigation of resident
23 quality-of-care complaints and communication and cooperation
24 with the appropriate entity to address those complaints,
25 including the ombudsman, state agencies, agencies responsible
26 for Medicaid program integrity, and local law enforcement
27 agencies.
28 (g) Assistance to the resident or the resident's
29 representative to relocate the resident if quality-of-care
30 issues are not otherwise addressed.
31 (h) Use of Medicare and other third-party funds to
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 support activities of the program.
2 (4) The agency shall coordinate the pilot project
3 activities with providers approved by Medicare to operate
4 Evercare demonstration projects.
5 Section 26. Subsections (3) and (4) of section 400.19,
6 Florida Statutes, are amended to read:
7 400.19 Right of entry and inspection.--
8 (3) The agency shall every 15 months conduct at least
9 one unannounced inspection to determine compliance by the
10 licensee with statutes, and with rules promulgated under the
11 provisions of those statutes, governing minimum standards of
12 construction, quality and adequacy of care, and rights of
13 residents. The survey shall be conducted every 6 months for
14 the next 2-year period if the facility has been cited for a
15 class I deficiency, has been cited for two or more class II
16 deficiencies arising from separate surveys or investigations
17 within a 60-day period, or has had three or more substantiated
18 complaints within a 6-month period, each resulting in at least
19 one class I or class II deficiency. In addition to any other
20 fees or fines in this part, the agency shall assess a fine for
21 each facility that is subject to the 6-month survey cycle. The
22 fine for the 2-year period shall be $6,000, one-half to be
23 paid at the completion of each survey. The agency may adjust
24 this fine by the change in the Consumer Price Index, based on
25 the 12 months immediately preceding the increase, to cover the
26 cost of the additional surveys. The agency shall verify
27 through subsequent inspection that any deficiency identified
28 during the annual inspection is corrected. However, the
29 agency may verify the correction of a class III or class IV
30 deficiency unrelated to resident rights or resident care
31 without reinspecting the facility if adequate written
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 documentation has been received from the facility, which
2 provides assurance that the deficiency has been corrected.
3 The giving or causing to be given of advance notice of such
4 unannounced inspections by an employee of the agency to any
5 unauthorized person shall constitute cause for suspension of
6 not fewer than 5 working days according to the provisions of
7 chapter 110.
8 (4) The agency shall conduct unannounced onsite
9 facility reviews following written verification of licensee
10 noncompliance in instances in which a long-term care ombudsman
11 council, pursuant to ss. 400.0071 and 400.0075, has received a
12 complaint and has documented deficiencies in resident care or
13 in the physical plant of the facility that threaten the
14 health, safety, or security of residents, or when the agency
15 documents through inspection that conditions in a facility
16 present a direct or indirect threat to the health, safety, or
17 security of residents. However, the agency shall conduct four
18 or more unannounced onsite reviews every 3 months within a
19 12-month period of each facility while the facility which has
20 a conditional license licensure status. Deficiencies related
21 to physical plant do not require followup reviews after the
22 agency has determined that correction of the deficiency has
23 been accomplished and that the correction is of the nature
24 that continued compliance can be reasonably expected.
25 Section 27. Subsection (3) and paragraph (a) of
26 subsection (5) of section 400.191, Florida Statutes, are
27 amended to read:
28 400.191 Availability, distribution, and posting of
29 reports and records.--
30 (3) Each nursing home facility licensee shall maintain
31 as public information, available upon request, records of all
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 cost and inspection reports pertaining to that facility that
2 have been filed with, or issued by, any governmental agency.
3 Copies of such reports shall be retained in such records for
4 not less than 5 years from the date the reports are filed or
5 issued.
6 (a) The agency shall quarterly publish a "Nursing Home
7 Guide Watch List" to assist consumers in evaluating the
8 quality of nursing home care in Florida. The watch list must
9 identify each facility that met the criteria for a conditional
10 licensure status on any day within the quarter covered by the
11 list and each facility that was operating under bankruptcy
12 protection on any day within the quarter. The watch list must
13 include, but is not limited to, the facility's name, address,
14 and ownership; the county in which the facility operates; the
15 license expiration date; the number of licensed beds; a
16 description of the deficiency causing the facility to be
17 placed on the list; any corrective action taken; and the
18 cumulative number of times the facility has been on a watch
19 list. The watch list must include a brief description
20 regarding how to choose a nursing home, the categories of
21 licensure, the agency's inspection process, an explanation of
22 terms used in the watch list, and the addresses and phone
23 numbers of the agency's managed care and health quality area
24 offices.
25 (b) Upon publication of each quarterly watch list, the
26 agency must transmit a copy of the watch list to each nursing
27 home facility by mail and must make the watch list available
28 on the agency's Internet web site.
29 (5) Every nursing home facility licensee shall:
30 (a) Post, in a sufficient number of prominent
31 positions in the nursing home so as to be accessible to all
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 residents and to the general public:,
2 1. A concise summary of the last inspection report
3 pertaining to the nursing home and issued by the agency, with
4 references to the page numbers of the full reports, noting any
5 deficiencies found by the agency and the actions taken by the
6 licensee to rectify such deficiencies and indicating in such
7 summaries where the full reports may be inspected in the
8 nursing home.
9 2. A copy of the most recent version of the Florida
10 Nursing Home Guide Watch List.
11 Section 28. Subsection (2) of section 400.211, Florida
12 Statutes, is amended, and subsection (4) is added to that
13 section, to read:
14 400.211 Persons employed as nursing assistants;
15 certification requirement.--
16 (2) The following categories of persons who are not
17 certified as nursing assistants under part II of chapter 464
18 may be employed by a nursing facility for a period of 4
19 months:
20 (a) Persons who are enrolled in, or have completed, a
21 state-approved nursing assistant program; or
22 (b) Persons who have been positively verified as
23 actively certified and on the registry in another state with
24 no findings of abuse, neglect, or exploitation in that state;
25 or
26 (c) Persons who have preliminarily passed the state's
27 certification exam.
28
29 The certification requirement must be met within 4 months
30 after initial employment as a nursing assistant in a licensed
31 nursing facility.
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 (4) When employed by a nursing home facility for a
2 12-month period or longer, a nursing assistant, to maintain
3 certification, shall submit to a performance review every 12
4 months and must receive regular inservice education based on
5 the outcome of such reviews. The inservice training must:
6 (a) Be sufficient to ensure the continuing competence
7 of nursing assistants, must be at least 18 hours per year, and
8 may include hours accrued under s. 464.203(8);
9 (b) Include, at a minimum:
10 1. Techniques for assisting with eating and proper
11 feeding;
12 2. Principles of adequate nutrition and hydration;
13 3. Techniques for assisting and responding to the
14 cognitively impaired resident or the resident with difficult
15 behaviors;
16 4. Techniques for caring for the resident at the
17 end-of-life; and
18 5. Recognizing changes that place a resident at risk
19 for pressure ulcers and falls; and
20 (c) Address areas of weakness as determined in nursing
21 assistant performance reviews and may address the special
22 needs of residents as determined by the nursing home facility
23 staff.
24 Section 29. Subsections (2), (3), (7), and (8) of
25 section 400.23, Florida Statutes, are amended to read:
26 400.23 Rules; evaluation and deficiencies; licensure
27 status.--
28 (2) Pursuant to the intention of the Legislature, the
29 agency, in consultation with the Department of Health and the
30 Department of Elderly Affairs, shall adopt and enforce rules
31 to implement this part, which shall include reasonable and
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 fair criteria in relation to:
2 (a) The location and construction of the facility;
3 including fire and life safety, plumbing, heating, cooling,
4 lighting, ventilation, and other housing conditions which will
5 ensure the health, safety, and comfort of residents, including
6 an adequate call system. The agency shall establish standards
7 for facilities and equipment to increase the extent to which
8 new facilities and a new wing or floor added to an existing
9 facility after July 1, 1999, are structurally capable of
10 serving as shelters only for residents, staff, and families of
11 residents and staff, and equipped to be self-supporting during
12 and immediately following disasters. The agency shall work
13 with facilities licensed under this part and report to the
14 Governor and Legislature by April 1, 1999, its recommendations
15 for cost-effective renovation standards to be applied to
16 existing facilities. In making such rules, the agency shall be
17 guided by criteria recommended by nationally recognized
18 reputable professional groups and associations with knowledge
19 of such subject matters. The agency shall update or revise
20 such criteria as the need arises. All nursing homes must
21 comply with those lifesafety code requirements and building
22 code standards applicable at the time of approval of their
23 construction plans. The agency may require alterations to a
24 building if it determines that an existing condition
25 constitutes a distinct hazard to life, health, or safety. The
26 agency shall adopt fair and reasonable rules setting forth
27 conditions under which existing facilities undergoing
28 additions, alterations, conversions, renovations, or repairs
29 shall be required to comply with the most recent updated or
30 revised standards.
31 (b) The number and qualifications of all personnel,
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 including management, medical, nursing, and other professional
2 personnel, and nursing assistants, orderlies, and support
3 personnel, having responsibility for any part of the care
4 given residents.
5 (c) All sanitary conditions within the facility and
6 its surroundings, including water supply, sewage disposal,
7 food handling, and general hygiene which will ensure the
8 health and comfort of residents.
9 (d) The equipment essential to the health and welfare
10 of the residents.
11 (e) A uniform accounting system.
12 (f) The care, treatment, and maintenance of residents
13 and measurement of the quality and adequacy thereof, based on
14 rules developed under this chapter and the Omnibus Budget
15 Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22,
16 1987), Title IV (Medicare, Medicaid, and Other Health-Related
17 Programs), Subtitle C (Nursing Home Reform), as amended.
18 (g) The preparation and annual update of a
19 comprehensive emergency management plan. The agency shall
20 adopt rules establishing minimum criteria for the plan after
21 consultation with the Department of Community Affairs. At a
22 minimum, the rules must provide for plan components that
23 address emergency evacuation transportation; adequate
24 sheltering arrangements; postdisaster activities, including
25 emergency power, food, and water; postdisaster transportation;
26 supplies; staffing; emergency equipment; individual
27 identification of residents and transfer of records; and
28 responding to family inquiries. The comprehensive emergency
29 management plan is subject to review and approval by the local
30 emergency management agency. During its review, the local
31 emergency management agency shall ensure that the following
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 agencies, at a minimum, are given the opportunity to review
2 the plan: the Department of Elderly Affairs, the Department
3 of Health, the Agency for Health Care Administration, and the
4 Department of Community Affairs. Also, appropriate volunteer
5 organizations must be given the opportunity to review the
6 plan. The local emergency management agency shall complete
7 its review within 60 days and either approve the plan or
8 advise the facility of necessary revisions.
9 (h) The implementation of the consumer satisfaction
10 survey pursuant to s. 400.0225; the availability,
11 distribution, and posting of reports and records pursuant to
12 s. 400.191; and the Gold Seal Program pursuant to s. 400.235.
13 (3)(a) The agency shall adopt rules providing for the
14 minimum staffing requirements for nursing homes. These
15 requirements shall include, for each nursing home facility, a
16 minimum certified nursing assistant staffing and a minimum
17 licensed nursing staffing per resident per day, including
18 evening and night shifts and weekends. The minimum certified
19 nursing assistant staffing shall be 2.6 hours of direct care
20 per resident per day beginning January 1, 2002, and shall
21 increase to 2.9 hours of direct care per resident per day
22 beginning January 1, 2003. Beginning January 1, 2002, no
23 facility shall staff at less than one certified nursing
24 assistant per 20 residents. Facilities that have been free of
25 any class I or class II violation for the past 30 months may
26 provide a minimum of 2.3 hours of certified nursing assistant
27 service per resident per day until January 1, 2003. Nursing
28 assistants employed under s. 400.211(2) may be included in
29 computing the staffing ratio for certified nursing assistants
30 only if they provide nursing assistance services to residents
31 on a full-time basis. Each nursing home must document
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 compliance with staffing standards as required under this
2 paragraph and post daily Agency rules shall specify
3 requirements for documentation of compliance with staffing
4 standards, sanctions for violation of such standards, and
5 requirements for daily posting of the names of staff on duty
6 for the benefit of facility residents and the public. The
7 agency shall recognize the use of licensed nurses for
8 compliance with minimum staffing requirements for certified
9 nursing assistants, provided that the facility otherwise meets
10 the minimum staffing requirements for licensed nurses and that
11 the licensed nurses so recognized are performing the duties of
12 a certified nursing assistant. Unless otherwise approved by
13 the agency, licensed nurses counted towards the minimum
14 staffing requirements for certified nursing assistants must
15 exclusively perform the duties of a certified nursing
16 assistant for the entire shift and shall not also be counted
17 towards the minimum staffing requirements for licensed nurses.
18 If the agency approved a facility's request to use a licensed
19 nurse to perform both licensed nursing and certified nursing
20 assistant duties, the facility must allocate the amount of
21 staff time specifically spent on certified nursing assistant
22 duties for the purpose of documenting compliance with minimum
23 staffing requirements for certified and licensed nursing
24 staff. In no event may the hours of a licensed nurse with dual
25 job responsibilities be counted twice.
26 (b) The agency shall adopt rules to allow properly
27 trained staff of a nursing facility, in addition to certified
28 nursing assistants and licensed nurses, to assist residents
29 with eating. The rules shall specify the minimum training
30 requirements and shall specify the physiological conditions or
31 disorders of residents which would necessitate that the eating
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 assistance be provided by nursing personnel of the facility.
2 Nonnursing staff providing eating assistance to residents
3 under the provisions of this subsection shall not count
4 towards compliance with minimum staffing standards.
5 (c) Licensed practical nurses licensed under chapter
6 464 who are providing nursing services in nursing home
7 facilities under this part may supervise the activities of
8 other licensed practical nurses, certified nursing assistants,
9 and other unlicensed personnel providing services in such
10 facilities in accordance with rules adopted by the Board of
11 Nursing.
12 (7) The agency shall, at least every 15 months,
13 evaluate all nursing home facilities and make a determination
14 as to the degree of compliance by each licensee with the
15 established rules adopted under this part as a basis for
16 assigning a licensure status to that facility. The agency
17 shall base its evaluation on the most recent inspection
18 report, taking into consideration findings from other official
19 reports, surveys, interviews, investigations, and inspections.
20 The agency shall assign a licensure status of standard or
21 conditional to each nursing home.
22 (a) A standard licensure status means that a facility
23 has no class I or class II deficiencies, has corrected all
24 class III deficiencies within the time established by the
25 agency, and is in substantial compliance at the time of the
26 survey with criteria established under this part, with rules
27 adopted by the agency, and, if applicable, with rules adopted
28 under the Omnibus Budget Reconciliation Act of 1987 (Pub. L.
29 No. 100-203) (December 22, 1987), Title IV (Medicare,
30 Medicaid, and Other Health-Related Programs), Subtitle C
31 (Nursing Home Reform), as amended.
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 (b) A conditional licensure status means that a
2 facility, due to the presence of one or more class I or class
3 II deficiencies, or class III deficiencies not corrected
4 within the time established by the agency, is not in
5 substantial compliance at the time of the survey with criteria
6 established under this part or, with rules adopted by the
7 agency, or, if applicable, with rules adopted under the
8 Omnibus Budget Reconciliation Act of 1987 (Pub. L. No.
9 100-203) (December 22, 1987), Title IV (Medicare, Medicaid,
10 and Other Health-Related Programs), Subtitle C (Nursing Home
11 Reform), as amended. If the facility has no class I, class
12 II, or class III deficiencies comes into substantial
13 compliance at the time of the followup survey, a standard
14 licensure status may be assigned.
15 (c) In evaluating the overall quality of care and
16 services and determining whether the facility will receive a
17 conditional or standard license, the agency shall consider the
18 needs and limitations of residents in the facility and the
19 results of interviews and surveys of a representative sampling
20 of residents, families of residents, ombudsman council members
21 in the planning and service area in which the facility is
22 located, guardians of residents, and staff of the nursing home
23 facility.
24 (d) The current licensure status of each facility must
25 be indicated in bold print on the face of the license. A list
26 of the deficiencies of the facility shall be posted in a
27 prominent place that is in clear and unobstructed public view
28 at or near the place where residents are being admitted to
29 that facility. Licensees receiving a conditional licensure
30 status for a facility shall prepare, within 10 working days
31 after receiving notice of deficiencies, a plan for correction
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 of all deficiencies and shall submit the plan to the agency
2 for approval. Correction of all deficiencies, within the
3 period approved by the agency, shall result in termination of
4 the conditional licensure status. Failure to correct the
5 deficiencies within a reasonable period approved by the agency
6 shall be grounds for the imposition of sanctions pursuant to
7 this part.
8 (e) Each licensee shall post its license in a
9 prominent place that is in clear and unobstructed public view
10 at or near the place where residents are being admitted to the
11 facility.
12 (f) Not later than January 1, 1994, The agency shall
13 adopt rules that:
14 1. Establish uniform procedures for the evaluation of
15 facilities.
16 2. Provide criteria in the areas referenced in
17 paragraph (c).
18 3. Address other areas necessary for carrying out the
19 intent of this section.
20 (8) The agency shall adopt rules to provide that, when
21 the criteria established under subsection (2) are not met,
22 such deficiencies shall be classified according to the nature
23 and the scope of the deficiency. The scope shall be cited as
24 isolated, patterned, or widespread. An isolated deficiency is
25 a deficiency affecting one or a very limited number of
26 residents, or involving one or a very limited number of staff,
27 or a situation that occurred only occasionally or in a very
28 limited number of locations. A patterned deficiency is a
29 deficiency where more than a very limited number of residents
30 are affected, or more than a very limited number of staff are
31 involved, or the situation has occurred in several locations,
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 or the same resident or residents have been affected by
2 repeated occurrences of the same deficient practice but the
3 effect of the deficient practice is not found to be pervasive
4 throughout the facility. A widespread deficiency is a
5 deficiency in which the problems causing the deficiency are
6 pervasive in the facility or represent systemic failure that
7 has affected or has the potential to affect a large portion of
8 the facility's residents. The agency shall indicate the
9 classification on the face of the notice of deficiencies as
10 follows:
11 (a) A class I deficiency is a deficiency that
12 deficiencies are those which the agency determines presents a
13 situation in which immediate corrective action is necessary
14 because the facility's noncompliance has caused, or is likely
15 to cause, serious injury, harm, impairment, or death to a
16 resident receiving care in a facility present an imminent
17 danger to the residents or guests of the nursing home facility
18 or a substantial probability that death or serious physical
19 harm would result therefrom. The condition or practice
20 constituting a class I violation shall be abated or eliminated
21 immediately, unless a fixed period of time, as determined by
22 the agency, is required for correction. Notwithstanding s.
23 400.121(2), A class I deficiency is subject to a civil penalty
24 of $10,000 for an isolated deficiency, $12,500 for a patterned
25 deficiency, and $15,000 for a widespread in an amount not less
26 than $5,000 and not exceeding $25,000 for each and every
27 deficiency. The fine amount shall be doubled for each
28 deficiency if the facility was previously cited for one or
29 more class I or class II deficiencies during the last annual
30 inspection or any inspection or complaint investigation since
31 the last annual inspection. A fine must may be levied
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 notwithstanding the correction of the deficiency.
2 (b) A class II deficiency is a deficiency that
3 deficiencies are those which the agency determines has
4 compromised the resident's ability to maintain or reach his or
5 her highest practicable physical, mental, and psychosocial
6 well-being, as defined by an accurate and comprehensive
7 resident assessment, plan of care, and provision of services
8 have a direct or immediate relationship to the health, safety,
9 or security of the nursing home facility residents, other than
10 class I deficiencies. A class II deficiency is subject to a
11 civil penalty of $2,500 for an isolated deficiency, $5,000 for
12 a patterned deficiency, and $7,500 for a widespread in an
13 amount not less than $1,000 and not exceeding $10,000 for each
14 and every deficiency. The fine amount shall be doubled for
15 each deficiency if the facility was previously cited for one
16 or more class I or class II deficiencies during the last
17 annual inspection or any inspection or complaint investigation
18 since the last annual inspection. A fine shall be levied
19 notwithstanding the correction of the deficiency. A citation
20 for a class II deficiency shall specify the time within which
21 the deficiency is required to be corrected. If a class II
22 deficiency is corrected within the time specified, no civil
23 penalty shall be imposed, unless it is a repeated offense.
24 (c) A class III deficiency is a deficiency that
25 deficiencies are those which the agency determines will result
26 in no more than minimal physical, mental, or psychosocial
27 discomfort to the resident or has the potential to compromise
28 the resident's ability to maintain or reach his or her highest
29 practical physical, mental, or psychosocial well-being, as
30 defined by an accurate and comprehensive resident assessment,
31 plan of care, and provision of services to have an indirect or
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 potential relationship to the health, safety, or security of
2 the nursing home facility residents, other than class I or
3 class II deficiencies. A class III deficiency is shall be
4 subject to a civil penalty of $1,000 for an isolated
5 deficiency, $2,000 for a patterned deficiency, and $3,000 for
6 a widespread not less than $500 and not exceeding $2,500 for
7 each and every deficiency. The fine amount shall be doubled
8 for each deficiency if the facility was previously cited for
9 one or more class I or class II deficiencies during the last
10 annual inspection or any inspection or complaint investigation
11 since the last annual inspection. A citation for a class III
12 deficiency must shall specify the time within which the
13 deficiency is required to be corrected. If a class III
14 deficiency is corrected within the time specified, no civil
15 penalty shall be imposed, unless it is a repeated offense.
16 (d) A class IV deficiency is a deficiency that the
17 agency determines has the potential for causing no more than a
18 minor negative impact on the resident. If the class IV
19 deficiency is isolated, no plan of correction is required.
20 Section 30. Subsection (5) of section 400.235, Florida
21 Statutes, is amended to read:
22 400.235 Nursing home quality and licensure status;
23 Gold Seal Program.--
24 (5) Facilities must meet the following additional
25 criteria for recognition as a Gold Seal Program facility:
26 (a) Had no class I or class II deficiencies within the
27 30 months preceding application for the program.
28 (b) Evidence financial soundness and stability
29 according to standards adopted by the agency in administrative
30 rule.
31 (c) Participate consistently in the required consumer
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 satisfaction process as prescribed by the agency, and
2 demonstrate that information is elicited from residents,
3 family members, and guardians about satisfaction with the
4 nursing facility, its environment, the services and care
5 provided, the staff's skills and interactions with residents,
6 attention to resident's needs, and the facility's efforts to
7 act on information gathered from the consumer satisfaction
8 measures.
9 (d) Evidence the involvement of families and members
10 of the community in the facility on a regular basis.
11 (e) Have a stable workforce, as described in s.
12 400.141, as evidenced by a relatively low rate of turnover
13 among certified nursing assistants and licensed nurses within
14 the 30 months preceding application for the Gold Seal Program,
15 and demonstrate a continuing effort to maintain a stable
16 workforce and to reduce turnover of licensed nurses and
17 certified nursing assistants.
18 (f) Evidence an outstanding record regarding the
19 number and types of substantiated complaints reported to the
20 State Long-Term Care Ombudsman Council within the 30 months
21 preceding application for the program.
22 (g) Provide targeted inservice training provided to
23 meet training needs identified by internal or external quality
24 assurance efforts.
25
26 A facility assigned a conditional licensure status may not
27 qualify for consideration for the Gold Seal Program until
28 after it has operated for 30 months with no class I or class
29 II deficiencies and has completed a regularly scheduled
30 relicensure survey.
31 Section 31. Section 400.275, Florida Statutes, is
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 created to read:
2 400.275 Agency duties.--
3 (1) The agency shall ensure that each newly hired
4 nursing home surveyor, as a part of basic training, is
5 assigned full-time to a licensed nursing home for at least 2
6 days within a 7-day period to observe facility operations
7 outside of the survey process before the surveyor begins
8 survey responsibilities. Such observations may not be the sole
9 basis of a deficiency citation against the facility. The
10 agency may not assign an individual to be a member of a survey
11 team for purposes of a survey, evaluation, or consultation
12 visit at a nursing home facility in which the surveyor was an
13 employee within the preceding 5 years.
14 (2) The agency shall semiannually provide for joint
15 training of nursing home surveyors and staff of facilities
16 licensed under this part on at least one of the 10 federal
17 citations that were most frequently issued against nursing
18 facilities in this state during the previous calendar year.
19 (3) Each member of a nursing home survey team who is a
20 health professional licensed under part I of chapter 464, part
21 X of chapter 468, or chapter 491, shall earn not less than 50
22 percent of required continuing education credits in geriatric
23 care. Each member of a nursing home survey team who is a
24 health professional licensed under chapter 465 shall earn not
25 less than 30 percent of required continuing education credits
26 in geriatric care.
27 (4) The agency must ensure that when a deficiency is
28 related to substandard quality of care, a physician with
29 geriatric experience licensed under chapter 458 or chapter 459
30 or a registered nurse with geriatric experience licensed under
31 chapter 464 participates in the agency's informal
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 dispute-resolution process.
2 Section 32. Subsections (3) and (4) of section
3 400.407, Florida Statutes, are amended to read:
4 400.407 License required; fee, display.--
5 (3) Any license granted by the agency must state the
6 maximum resident capacity of the facility, the type of care
7 for which the license is granted, the date the license is
8 issued, the expiration date of the license, and any other
9 information deemed necessary by the agency. Licenses shall be
10 issued for one or more of the following categories of care:
11 standard, extended congregate care, limited nursing services,
12 or limited mental health.
13 (a) A standard license shall be issued to facilities
14 providing one or more of the personal services identified in
15 s. 400.402. Such facilities may also employ or contract with a
16 person licensed under part I of chapter 464 to administer
17 medications and perform other tasks as specified in s.
18 400.4255.
19 (b) An extended congregate care license shall be
20 issued to facilities providing, directly or through contract,
21 services beyond those authorized in paragraph (a), including
22 acts performed pursuant to part I of chapter 464 by persons
23 licensed thereunder, and supportive services defined by rule
24 to persons who otherwise would be disqualified from continued
25 residence in a facility licensed under this part.
26 1. In order for extended congregate care services to
27 be provided in a facility licensed under this part, the agency
28 must first determine that all requirements established in law
29 and rule are met and must specifically designate, on the
30 facility's license, that such services may be provided and
31 whether the designation applies to all or part of a facility.
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Amendment No. ___ (for drafter's use only)
1 Such designation may be made at the time of initial licensure
2 or biennial relicensure, or upon request in writing by a
3 licensee under this part. Notification of approval or denial
4 of such request shall be made within 90 days after receipt of
5 such request and all necessary documentation. Existing
6 facilities qualifying to provide extended congregate care
7 services must have maintained a standard license and may not
8 have been subject to administrative sanctions during the
9 previous 2 years, or since initial licensure if the facility
10 has been licensed for less than 2 years, for any of the
11 following reasons:
12 a. A class I or class II violation;
13 b. Three or more repeat or recurring class III
14 violations of identical or similar resident care standards as
15 specified in rule from which a pattern of noncompliance is
16 found by the agency;
17 c. Three or more class III violations that were not
18 corrected in accordance with the corrective action plan
19 approved by the agency;
20 d. Violation of resident care standards resulting in a
21 requirement to employ the services of a consultant pharmacist
22 or consultant dietitian;
23 e. Denial, suspension, or revocation of a license for
24 another facility under this part in which the applicant for an
25 extended congregate care license has at least 25 percent
26 ownership interest; or
27 f. Imposition of a moratorium on admissions or
28 initiation of injunctive proceedings.
29 2. Facilities that are licensed to provide extended
30 congregate care services shall maintain a written progress
31 report on each person who receives such services, which report
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 describes the type, amount, duration, scope, and outcome of
2 services that are rendered and the general status of the
3 resident's health. A registered nurse, or appropriate
4 designee, representing the agency shall visit such facilities
5 at least quarterly two times a year to monitor residents who
6 are receiving extended congregate care services and to
7 determine if the facility is in compliance with this part and
8 with rules that relate to extended congregate care. One of
9 these visits may be in conjunction with the regular biennial
10 survey. The monitoring visits may be provided through
11 contractual arrangements with appropriate community agencies.
12 A registered nurse shall serve as part of the team that
13 biennially inspects such facility. The agency may waive one of
14 the required yearly monitoring visits for a facility that has
15 been licensed for at least 24 months to provide extended
16 congregate care services, if, during the biennial inspection,
17 the registered nurse determines that extended congregate care
18 services are being provided appropriately, and if the facility
19 has no class I or class II violations and no uncorrected class
20 III violations. Before such decision is made, the agency shall
21 consult with the long-term care ombudsman council for the area
22 in which the facility is located to determine if any
23 complaints have been made and substantiated about the quality
24 of services or care. The agency may not waive one of the
25 required yearly monitoring visits if complaints have been made
26 and substantiated.
27 3. Facilities that are licensed to provide extended
28 congregate care services shall:
29 a. Demonstrate the capability to meet unanticipated
30 resident service needs.
31 b. Offer a physical environment that promotes a
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 homelike setting, provides for resident privacy, promotes
2 resident independence, and allows sufficient congregate space
3 as defined by rule.
4 c. Have sufficient staff available, taking into
5 account the physical plant and firesafety features of the
6 building, to assist with the evacuation of residents in an
7 emergency, as necessary.
8 d. Adopt and follow policies and procedures that
9 maximize resident independence, dignity, choice, and
10 decisionmaking to permit residents to age in place to the
11 extent possible, so that moves due to changes in functional
12 status are minimized or avoided.
13 e. Allow residents or, if applicable, a resident's
14 representative, designee, surrogate, guardian, or attorney in
15 fact to make a variety of personal choices, participate in
16 developing service plans, and share responsibility in
17 decisionmaking.
18 f. Implement the concept of managed risk.
19 g. Provide, either directly or through contract, the
20 services of a person licensed pursuant to part I of chapter
21 464.
22 h. In addition to the training mandated in s. 400.452,
23 provide specialized training as defined by rule for facility
24 staff.
25 4. Facilities licensed to provide extended congregate
26 care services are exempt from the criteria for continued
27 residency as set forth in rules adopted under s. 400.441.
28 Facilities so licensed shall adopt their own requirements
29 within guidelines for continued residency set forth by the
30 department in rule. However, such facilities may not serve
31 residents who require 24-hour nursing supervision. Facilities
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 licensed to provide extended congregate care services shall
2 provide each resident with a written copy of facility policies
3 governing admission and retention.
4 5. The primary purpose of extended congregate care
5 services is to allow residents, as they become more impaired,
6 the option of remaining in a familiar setting from which they
7 would otherwise be disqualified for continued residency. A
8 facility licensed to provide extended congregate care services
9 may also admit an individual who exceeds the admission
10 criteria for a facility with a standard license, if the
11 individual is determined appropriate for admission to the
12 extended congregate care facility.
13 6. Before admission of an individual to a facility
14 licensed to provide extended congregate care services, the
15 individual must undergo a medical examination as provided in
16 s. 400.426(4) and the facility must develop a preliminary
17 service plan for the individual.
18 7. When a facility can no longer provide or arrange
19 for services in accordance with the resident's service plan
20 and needs and the facility's policy, the facility shall make
21 arrangements for relocating the person in accordance with s.
22 400.428(1)(k).
23 8. Failure to provide extended congregate care
24 services may result in denial of extended congregate care
25 license renewal.
26 9. No later than January 1 of each year, the
27 department, in consultation with the agency, shall prepare and
28 submit to the Governor, the President of the Senate, the
29 Speaker of the House of Representatives, and the chairs of
30 appropriate legislative committees, a report on the status of,
31 and recommendations related to, extended congregate care
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 services. The status report must include, but need not be
2 limited to, the following information:
3 a. A description of the facilities licensed to provide
4 such services, including total number of beds licensed under
5 this part.
6 b. The number and characteristics of residents
7 receiving such services.
8 c. The types of services rendered that could not be
9 provided through a standard license.
10 d. An analysis of deficiencies cited during licensure
11 biennial inspections.
12 e. The number of residents who required extended
13 congregate care services at admission and the source of
14 admission.
15 f. Recommendations for statutory or regulatory
16 changes.
17 g. The availability of extended congregate care to
18 state clients residing in facilities licensed under this part
19 and in need of additional services, and recommendations for
20 appropriations to subsidize extended congregate care services
21 for such persons.
22 h. Such other information as the department considers
23 appropriate.
24 (c) A limited nursing services license shall be issued
25 to a facility that provides services beyond those authorized
26 in paragraph (a) and as specified in this paragraph.
27 1. In order for limited nursing services to be
28 provided in a facility licensed under this part, the agency
29 must first determine that all requirements established in law
30 and rule are met and must specifically designate, on the
31 facility's license, that such services may be provided. Such
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 designation may be made at the time of initial licensure or
2 biennial relicensure, or upon request in writing by a licensee
3 under this part. Notification of approval or denial of such
4 request shall be made within 90 days after receipt of such
5 request and all necessary documentation. Existing facilities
6 qualifying to provide limited nursing services shall have
7 maintained a standard license and may not have been subject to
8 administrative sanctions that affect the health, safety, and
9 welfare of residents for the previous 2 years or since initial
10 licensure if the facility has been licensed for less than 2
11 years.
12 2. Facilities that are licensed to provide limited
13 nursing services shall maintain a written progress report on
14 each person who receives such nursing services, which report
15 describes the type, amount, duration, scope, and outcome of
16 services that are rendered and the general status of the
17 resident's health. A registered nurse representing the agency
18 shall visit such facilities at least twice once a year to
19 monitor residents who are receiving limited nursing services
20 and to determine if the facility is in compliance with
21 applicable provisions of this part and with related rules. The
22 monitoring visits may be provided through contractual
23 arrangements with appropriate community agencies. A
24 registered nurse shall also serve as part of the team that
25 biennially inspects such facility.
26 3. A person who receives limited nursing services
27 under this part must meet the admission criteria established
28 by the agency for assisted living facilities. When a resident
29 no longer meets the admission criteria for a facility licensed
30 under this part, arrangements for relocating the person shall
31 be made in accordance with s. 400.428(1)(k), unless the
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 facility is licensed to provide extended congregate care
2 services.
3 (4)(a) The biennial license fee required of a facility
4 is $300 $240 per license, with an additional fee of $50 $30
5 per resident based on the total licensed resident capacity of
6 the facility, except that no additional fee will be assessed
7 for beds designated for recipients of optional state
8 supplementation payments provided for in s. 409.212. The total
9 fee may not exceed $10,000, no part of which shall be returned
10 to the facility. The agency shall adjust the per bed license
11 fee and the total licensure fee annually by not more than the
12 change in the consumer price index based on the 12 months
13 immediately preceding the increase.
14 (b) In addition to the total fee assessed under
15 paragraph (a), the agency shall require facilities that are
16 licensed to provide extended congregate care services under
17 this part to pay an additional fee per licensed facility. The
18 amount of the biennial fee shall be $400 per license, with an
19 additional fee of $10 per resident based on the total licensed
20 resident capacity of the facility. No part of this fee which
21 shall be returned to the facility. The agency may adjust the
22 per-bed license fee and the annual license fee once each year
23 by not more than the average rate of inflation for the 12
24 months immediately preceding the increase.
25 (c) In addition to the total fee assessed under
26 paragraph (a), the agency shall require facilities that are
27 licensed to provide limited nursing services under this part
28 to pay an additional fee per licensed facility. The amount of
29 the biennial fee shall be $250 $200 per license, with an
30 additional fee of $10 per resident based on the total licensed
31 resident capacity of the facility. The total biennial fee may
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 not exceed $2,000, No part of this fee which shall be returned
2 to the facility. The agency may adjust the per-bed license
3 fee and the $200 biennial license fee and the maximum total
4 license fee once each year by not more than the average rate
5 of inflation for the 12 months immediately preceding the
6 increase.
7 Section 33. Paragraph (n) is added to subsection (1)
8 of section 400.414, Florida Statutes, and subsection (8) is
9 added to that section, to read:
10 400.414 Denial, revocation, or suspension of license;
11 imposition of administrative fine; grounds.--
12 (1) The agency may deny, revoke, or suspend any
13 license issued under this part, or impose an administrative
14 fine in the manner provided in chapter 120, for any of the
15 following actions by an assisted living facility, any person
16 subject to level 2 background screening under s. 400.4174, or
17 any facility employee:
18 (n) Any act constituting a ground upon which
19 application for a license may be denied.
20
21 Administrative proceedings challenging agency action under
22 this subsection shall be reviewed on the basis of the facts
23 and conditions that resulted in the agency action.
24 (8) The agency may issue a temporary license pending
25 final disposition of a proceeding involving the suspension or
26 revocation of an assisted living facility license.
27 Section 34. Section 400.419, Florida Statutes, is
28 amended to read:
29 400.419 Violations; administrative fines.--
30 (1) Each violation of this part and adopted rules
31 shall be classified according to the nature of the violation
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 and the gravity of its probable effect on facility residents.
2 The agency shall indicate the classification on the written
3 notice of the violation as follows:
4 (a) Class "I" violations are those conditions or
5 occurrences related to the operation and maintenance of a
6 facility or to the personal care of residents which the agency
7 determines present an imminent danger to the residents or
8 guests of the facility or a substantial probability that death
9 or serious physical or emotional harm would result therefrom.
10 The condition or practice constituting a class I violation
11 shall be abated or eliminated within 24 hours, unless a fixed
12 period, as determined by the agency, is required for
13 correction. A class I violation is subject to an
14 administrative fine in an amount not less than $5,000 $1,000
15 and not exceeding $10,000 for each violation. A fine may be
16 levied notwithstanding the correction of the violation.
17 (b) Class "II" violations are those conditions or
18 occurrences related to the operation and maintenance of a
19 facility or to the personal care of residents which the agency
20 determines directly threaten the physical or emotional health,
21 safety, or security of the facility residents, other than
22 class I violations. A class II violation is subject to an
23 administrative fine in an amount not less than $1,000 $500 and
24 not exceeding $5,000 for each violation. A citation for a
25 class II violation must shall specify the time within which
26 the violation is required to be corrected. If a class II
27 violation is corrected within the time specified, no fine may
28 be imposed, unless it is a repeated offense.
29 (c) Class "III" violations are those conditions or
30 occurrences related to the operation and maintenance of a
31 facility or to the personal care of residents which the agency
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 determines indirectly or potentially threaten the physical or
2 emotional health, safety, or security of facility residents,
3 other than class I or class II violations. A class III
4 violation is subject to an administrative fine of not less
5 than $500 $100 and not exceeding $1,000 for each violation. A
6 citation for a class III violation must shall specify the time
7 within which the violation is required to be corrected. If a
8 class III violation is corrected within the time specified, no
9 fine may be imposed, unless it is a repeated offense.
10 (d) Class "IV" violations are those conditions or
11 occurrences related to the operation and maintenance of a
12 building or to required reports, forms, or documents that do
13 not have the potential of negatively affecting residents.
14 These violations are of a type that the agency determines do
15 not threaten the health, safety, or security of residents of
16 the facility. A facility that does not correct a class IV
17 violation within the time specified in the agency-approved
18 corrective action plan is subject to an administrative fine of
19 not less than $100 $50 nor more than $200 for each violation.
20 Any class IV violation that is corrected during the time an
21 agency survey is being conducted will be identified as an
22 agency finding and not as a violation.
23 (2) The agency may set and levy a fine not to exceed
24 $1,000 for each violation which cannot be classified according
25 to subsection (1). Such fines in the aggregate may not exceed
26 $10,000 per survey.
27 (2)(3) In determining if a penalty is to be imposed
28 and in fixing the amount of the fine, the agency shall
29 consider the following factors:
30 (a) The gravity of the violation, including the
31 probability that death or serious physical or emotional harm
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 to a resident will result or has resulted, the severity of the
2 action or potential harm, and the extent to which the
3 provisions of the applicable laws or rules were violated.
4 (b) Actions taken by the owner or administrator to
5 correct violations.
6 (c) Any previous violations.
7 (d) The financial benefit to the facility of
8 committing or continuing the violation.
9 (e) The licensed capacity of the facility.
10 (3)(4) Each day of continuing violation after the date
11 fixed for termination of the violation, as ordered by the
12 agency, constitutes an additional, separate, and distinct
13 violation.
14 (4)(5) Any action taken to correct a violation shall
15 be documented in writing by the owner or administrator of the
16 facility and verified through followup visits by agency
17 personnel. The agency may impose a fine and, in the case of an
18 owner-operated facility, revoke or deny a facility's license
19 when a facility administrator fraudulently misrepresents
20 action taken to correct a violation.
21 (5)(6) For fines that are upheld following
22 administrative or judicial review, the violator shall pay the
23 fine, plus interest at the rate as specified in s. 55.03, for
24 each day beyond the date set by the agency for payment of the
25 fine.
26 (6)(7) Any unlicensed facility that continues to
27 operate after agency notification is subject to a $1,000 fine
28 per day. Each day beyond 5 working days after agency
29 notification constitutes a separate violation, and the
30 facility is subject to a fine of $500 per day.
31 (7)(8) Any licensed facility whose owner or
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 administrator concurrently operates an unlicensed facility
2 shall be subject to an administrative fine of $5,000 per day.
3 Each day that the unlicensed facility continues to operate
4 beyond 5 working days after agency notification constitutes a
5 separate violation, and the licensed facility shall be subject
6 to a fine of $500 per day retroactive to the date of agency
7 notification.
8 (8)(9) Any facility whose owner fails to apply for a
9 change-of-ownership license in accordance with s. 400.412 and
10 operates the facility under the new ownership is subject to a
11 fine of not to exceed $5,000.
12 (9)(10) In addition to any administrative fines
13 imposed, the agency may assess a survey fee, equal to the
14 lesser of one half of the facility's biennial license and bed
15 fee or $500, to cover the cost of conducting initial complaint
16 investigations that result in the finding of a violation that
17 was the subject of the complaint or monitoring visits
18 conducted under s. 400.428(3)(c) to verify the correction of
19 the violations.
20 (10)(11) The agency, as an alternative to or in
21 conjunction with an administrative action against a facility
22 for violations of this part and adopted rules, shall make a
23 reasonable attempt to discuss each violation and recommended
24 corrective action with the owner or administrator of the
25 facility, prior to written notification. The agency, instead
26 of fixing a period within which the facility shall enter into
27 compliance with standards, may request a plan of corrective
28 action from the facility which demonstrates a good faith
29 effort to remedy each violation by a specific date, subject to
30 the approval of the agency.
31 (11)(12) Administrative fines paid by any facility
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 under this section shall be deposited into the Health Care
2 Trust Fund and expended as provided in s. 400.418.
3 (12)(13) The agency shall develop and disseminate an
4 annual list of all facilities sanctioned or fined $5,000 or
5 more for violations of state standards, the number and class
6 of violations involved, the penalties imposed, and the current
7 status of cases. The list shall be disseminated, at no charge,
8 to the Department of Elderly Affairs, the Department of
9 Health, the Department of Children and Family Services, the
10 area agencies on aging, the Florida Statewide Advocacy
11 Council, and the state and local ombudsman councils. The
12 Department of Children and Family Services shall disseminate
13 the list to service providers under contract to the department
14 who are responsible for referring persons to a facility for
15 residency. The agency may charge a fee commensurate with the
16 cost of printing and postage to other interested parties
17 requesting a copy of this list.
18 Section 35. Section 400.423, Florida Statutes, is
19 created to read:
20 400.423 Internal risk management and quality assurance
21 program; adverse incidents and reporting requirements.--
22 (1) Every facility licensed under this part may, as
23 part of its administrative functions, voluntarily establish a
24 risk management and quality assurance program, the purpose of
25 which is to assess resident care practices, facility incident
26 reports, deficiencies cited by the agency, adverse incident
27 reports, and resident grievances and develop plans of action
28 to correct and respond quickly to identify quality
29 differences.
30 (2) Every facility licensed under this part is
31 required to maintain adverse incident reports. For purposes of
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 this section, the term, "adverse incident" means:
2 (a) An event over which facility personnel could
3 exercise control rather than as a result of the resident's
4 condition and results in:
5 1. Death;
6 2. Brain or spinal damage;
7 3. Permanent disfigurement;
8 4. Fracture or dislocation of bones or joints;
9 5. Any condition that required medical attention to
10 which the resident has not given his or her consent, including
11 failure to honor advanced directives;
12 6. Any condition that requires the transfer of the
13 resident from the facility to a unit providing more acute care
14 due to the incident rather than the resident's condition
15 before the incident.
16 (b) Abuse, neglect, or exploitation as defined in s.
17 415.102;
18 (c) Events reported to law enforcement; or
19 (d) Elopement.
20 (3) Licensed facilities shall provide within 1
21 business day after the occurrence of an adverse incident, by
22 electronic mail, facsimile, or United States mail, a
23 preliminary report to the agency on all adverse incidents
24 specified under this section. The report must include
25 information regarding the identity of the affected resident,
26 the type of adverse incident, and the status of the facility's
27 investigation of the incident.
28 (4) Licensed facilities shall provide within 15 days,
29 by electronic mail, facsimile, or United States mail, a full
30 report to the agency on all adverse incidents specified in
31 this section. The report must include the results of the
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 facility's investigation into the adverse incident.
2 (5) Each facility shall report monthly to the agency
3 any liability claim filed against it. The report must include
4 the name of the resident, the dates of the incident leading to
5 the claim, if applicable, and the type of injury or violation
6 of rights alleged to have occurred. This report is not
7 discoverable in any civil or administrative action, except in
8 such actions brought by the agency to enforce the provisions
9 of this part.
10 (6) The agency shall annually submit to the
11 Legislature a report on assisted living facility adverse
12 incident reports. The report must include the following
13 information arranged by county:
14 (a) A total number of adverse incidents;
15 (b) A listing, by category, of the type of adverse
16 incidents occurring within each category and the type of staff
17 involved;
18 (c) A listing, by category, of the types of injuries,
19 if any, and the number of injuries occurring within each
20 category;
21 (d) Types of liability claims filed based on an
22 adverse incident report or reportable injury; and
23 (e) Disciplinary action taken against staff,
24 categorized by the type of staff involved.
25 (7) The information reported to the agency pursuant to
26 subsection (3) which relates to persons licensed under chapter
27 458, chapter 459, chapter 461, chapter 464, or chapter 465
28 shall be reviewed by the agency. The agency shall determine
29 whether any of the incidents potentially involved conduct by a
30 health care professional who is subject to disciplinary
31 action, in which case the provisions of s. 456.073 apply. The
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 agency may investigate, as it deems appropriate, any such
2 incident and prescribe measures that must or may be taken in
3 response to the incident. The agency shall review each
4 incident and determine whether it potentially involved conduct
5 by a health care professional who is subject to disciplinary
6 action, in which case the provisions of s. 456.073 apply.
7 (8) If the agency, through its receipt of the adverse
8 incident reports prescribed in this part or through any
9 investigation, has reasonable belief that conduct by a staff
10 member or employee of a licensed facility is grounds for
11 disciplinary action by the appropriate board, the agency shall
12 report this fact to such regulatory board.
13 (9) The adverse incident reports and preliminary
14 adverse incident reports required under this section are
15 confidential as provided by law and are not discoverable or
16 admissible in any civil or administrative action, except in
17 disciplinary proceedings by the agency or appropriate
18 regulatory board.
19 (10) The Department of Elderly Affairs may adopt rules
20 necessary to administer this section.
21 Section 36. Present subsections (7), (8), (9), (10),
22 and (11) of section 400.426, Florida Statutes, are
23 redesignated as subsections (8), (9), (10), (11), and (12),
24 respectively, and a new subsection (7) is added to that
25 section, to read:
26 400.426 Appropriateness of placements; examinations of
27 residents.--
28 (7) The facility must notify a licensed physician when
29 a resident exhibits signs of dementia or cognitive impairment
30 or has a change of condition in order to rule out the presence
31 of an underlying physiological condition that may be
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1 contributing to such dementia or impairment. The notification
2 must occur within 30 days after the acknowledgement of such
3 signs by facility staff. If an underlying condition is
4 determined to exist, the facility shall arrange, with the
5 appropriate health care provider, the necessary care and
6 services to treat the condition.
7 Section 37. Paragraph (k) of subsection (1) of section
8 400.428, Florida Statutes, is amended to read:
9 400.428 Resident bill of rights.--
10 (1) No resident of a facility shall be deprived of any
11 civil or legal rights, benefits, or privileges guaranteed by
12 law, the Constitution of the State of Florida, or the
13 Constitution of the United States as a resident of a facility.
14 Every resident of a facility shall have the right to:
15 (k) At least 45 30 days' notice of relocation or
16 termination of residency from the facility unless, for medical
17 reasons, the resident is certified by a physician to require
18 an emergency relocation to a facility providing a more skilled
19 level of care or the resident engages in a pattern of conduct
20 that is harmful or offensive to other residents. In the case
21 of a resident who has been adjudicated mentally incapacitated,
22 the guardian shall be given at least 45 30 days' notice of a
23 nonemergency relocation or residency termination. Reasons for
24 relocation shall be set forth in writing. In order for a
25 facility to terminate the residency of an individual without
26 notice as provided herein, the facility shall show good cause
27 in a court of competent jurisdiction.
28 Section 38. Effective May 15, 2001, and applying to
29 causes of action accruing on or after that date, section
30 400.429, Florida Statutes, is amended to read:
31 400.429 Civil actions to enforce rights.--
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1 (1) Any person or resident whose rights as specified
2 in this part are violated shall have a cause of action against
3 any facility owner, administrator, or staff responsible for
4 the violation. The action may be brought by the resident or
5 his or her guardian, or by a person or organization acting on
6 behalf of a resident with the consent of the resident or his
7 or her guardian, or by the personal representative of the
8 estate of a deceased resident regardless of the cause of death
9 when the cause of death resulted from a violation of the
10 decedent's rights, to enforce such rights. If the action
11 alleges a claim for the resident's rights or for negligence
12 that caused the death of the resident, the claimant shall be
13 required to elect either survival damages pursuant to s.
14 46.021 or wrongful death damages pursuant to s. 768.21. If the
15 action alleges a claim for the resident's rights or for
16 negligence that did not cause the death of the resident, the
17 personal representative of the estate may recover damages for
18 the negligence that caused injury to the resident. The action
19 may be brought in any court of competent jurisdiction to
20 enforce such rights and to recover actual damages, and
21 punitive damages for violation of the rights of a resident or
22 negligence when malicious, wanton, or willful disregard of the
23 rights of others can be shown. Any resident who prevails in
24 seeking injunctive relief or a claim for an administrative
25 remedy is entitled to recover the costs of the action and a
26 reasonable attorney's fee assessed against the defendant not
27 to exceed $25,000. Fees shall be awarded solely for the
28 injunctive or administrative relief and not for any claim or
29 action for damages whether such claim or action is brought
30 together with a request for an injunction or administrative
31 relief or as a separate action, except as provided under s.
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Amendment No. ___ (for drafter's use only)
1 768.79 or the Florida Rules of Civil Procedure. Sections
2 400.429-400.4303 provide the exclusive remedy for a cause of
3 action for recovery of damages for the personal injury or
4 death of a resident arising out of negligence or a violation
5 of rights specified in s. 400.428. This section does not
6 preclude theories of recovery not arising out of negligence or
7 s. 400.428 which are available to a resident or to the agency.
8 The provisions of chapter 766 do not apply to any cause of
9 action brought under ss. 400.429-400.4303. Any plaintiff who
10 prevails in any such action may be entitled to recover
11 reasonable attorney's fees, costs of the action, and damages,
12 unless the court finds that the plaintiff has acted in bad
13 faith, with malicious purpose, and that there was a complete
14 absence of a justiciable issue of either law or fact. A
15 prevailing defendant may be entitled to recover reasonable
16 attorney's fees pursuant to s. 57.105. The remedies provided
17 in this section are in addition to and cumulative with other
18 legal and administrative remedies available to a resident or
19 to the agency.
20 (2) In any claim brought pursuant to this part
21 alleging a violation of resident's rights or negligence
22 causing injury to or the death of a resident, the claimant
23 shall have the burden of proving, by a preponderance of the
24 evidence, that:
25 (a) The defendant owed a duty to the resident;
26 (b) The defendant breached the duty to the resident;
27 (c) The breach of the duty is a legal cause of loss,
28 injury, death or damage to the resident; and
29 (d) The resident sustained loss, injury, death, or
30 damage as a result of the breach.
31
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1 Nothing in this part shall be interpreted to create strict
2 liability. A violation of the rights set forth in s. 400.428
3 or in any other standard or guidelines specified in this part
4 or in any applicable administrative standard or guidelines of
5 this state or a federal regulatory agency shall be evidence of
6 negligence but shall not be considered negligence per se.
7 (3) In any claim brought pursuant to s. 400.429, a
8 licensee, person or entity shall have a duty to exercise
9 reasonable care. Reasonable care is that degree of care which
10 a reasonably careful licensee, person or entity would use
11 under like circumstances.
12 (4) In any claim for resident's rights violation or
13 negligence by a nurse licensed under part I of chapter 464,
14 such nurse shall have the duty to exercise care consistent
15 with the prevailing professional standard of care for a nurse.
16 The prevailing professional standard of care for a nurse shall
17 be that level of care, skill, and treatment which, in light of
18 all relevant surrounding circumstances is recognized as
19 acceptable and appropriate by reasonably prudent similar
20 nurses. To recover attorney's fees under this section, the
21 following conditions precedent must be met:
22 (a) Within 120 days after the filing of a responsive
23 pleading or defensive motion to a complaint brought under this
24 section and before trial, the parties or their designated
25 representatives shall meet in mediation to discuss the issues
26 of liability and damages in accordance with this paragraph for
27 the purpose of an early resolution of the matter.
28 1. Within 60 days after the filing of the responsive
29 pleading or defensive motion, the parties shall:
30 a. Agree on a mediator. If the parties cannot agree on
31 a mediator, the defendant shall immediately notify the court,
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Amendment No. ___ (for drafter's use only)
1 which shall appoint a mediator within 10 days after such
2 notice.
3 b. Set a date for mediation.
4 c. Prepare an order for the court that identifies the
5 mediator, the scheduled date of the mediation, and other terms
6 of the mediation. Absent any disagreement between the parties,
7 the court may issue the order for the mediation submitted by
8 the parties without a hearing.
9 2. The mediation must be concluded within 120 days
10 after the filing of a responsive pleading or defensive motion.
11 The date may be extended only by agreement of all parties
12 subject to mediation under this subsection.
13 3. The mediation shall be conducted in the following
14 manner:
15 a. Each party shall ensure that all persons necessary
16 for complete settlement authority are present at the
17 mediation.
18 b. Each party shall mediate in good faith.
19 4. All aspects of the mediation which are not
20 specifically established by this subsection must be conducted
21 according to the rules of practice and procedure adopted by
22 the Supreme Court of this state.
23 (b) If the parties do not settle the case pursuant to
24 mediation, the last offer of the defendant made at mediation
25 shall be recorded by the mediator in a written report that
26 states the amount of the offer, the date the offer was made in
27 writing, and the date the offer was rejected. If the matter
28 subsequently proceeds to trial under this section and the
29 plaintiff prevails but is awarded an amount in damages,
30 exclusive of attorney's fees, which is equal to or less than
31 the last offer made by the defendant at mediation, the
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Amendment No. ___ (for drafter's use only)
1 plaintiff is not entitled to recover any attorney's fees.
2 (c) This subsection applies only to claims for
3 liability and damages and does not apply to actions for
4 injunctive relief.
5 (d) This subsection applies to all causes of action
6 that accrue on or after October 1, 1999.
7 (5)(3) Discovery of financial information for the
8 purpose of determining the value of punitive damages may not
9 be had unless the plaintiff shows the court by proffer or
10 evidence in the record that a reasonable basis exists to
11 support a claim for punitive damages.
12 (6)(4) In addition to any other standards for punitive
13 damages, any award of punitive damages must be reasonable in
14 light of the actual harm suffered by the resident and the
15 egregiousness of the conduct that caused the actual harm to
16 the resident.
17 (7) The resident or the resident's legal
18 representative shall serve a copy of any complaint alleging in
19 whole or in part a violation of any rights specified in this
20 part to the Agency for Health Care Administration at the time
21 of filing the initial complaint with the clerk of the court
22 for the county in which the action is pursued. The requirement
23 of providing a copy of the complaint to the agency does not
24 impair the resident's legal rights or ability to seek relief
25 for his or her claim.
26 Section 39. Effective May 15, 2001, and applying to
27 causes of action accruing on or after that date, section
28 400.4293, Florida Statutes, is created to read:
29 400.4293 Presuit notice; investigation; notification
30 of violation of residents' rights or alleged negligence;
31 claims evaluation procedure; informal discovery; review.--
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Amendment No. ___ (for drafter's use only)
1 (1) As used in this section, the term:
2 (a) "Claim for residents' rights violation or
3 negligence" means a negligence claim alleging injury to or the
4 death of a resident arising out of an asserted violation of
5 the rights of a resident under s. 400.428 or an asserted
6 deviation from the applicable standard of care.
7 (b) "Insurer" means any self-insurer authorized under
8 s. 627.357, liability insurance carrier, Joint Underwriting
9 Association, or any uninsured prospective defendant.
10 (2) Prior to filing a claim for a violation of a
11 resident's rights or a claim for negligence, a claimant
12 alleging injury to or the death of a resident shall notify
13 each prospective defendant by certified mail, return receipt
14 requested, of an asserted violation of a resident's rights
15 provided in s. 400.428 or deviation from the standard of care.
16 Such notification shall include an identification of the
17 rights the prospective defendant has violated and the
18 negligence alleged to have caused the incident or incidents
19 and a brief description of the injuries sustained by the
20 resident which are reasonably identifiable at the time of
21 notice. The notice shall contain a certificate of counsel that
22 counsel's reasonable investigation gave rise to a good-faith
23 belief that grounds exist for an action against each
24 prospective defendant.
25 (3)(a) No suit may be filed for a period of 75 days
26 after notice is mailed to any prospective defendant. During
27 the 75-day period, the prospective defendants or their
28 insurers shall conduct an evaluation of the claim to determine
29 the liability of each defendant and to evaluate the damages of
30 the claimants. Each defendant or insurer of the defendant
31 shall have a procedure for the prompt evaluation of claims
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1 during the 75-day period. The procedure shall include one or
2 more of the following:
3 1. Internal review by a duly qualified facility risk
4 manager or claims adjuster;
5 2. Internal review by counsel for each prospective
6 defendant;
7 3. A quality assurance committee authorized under any
8 applicable state or federal statutes or regulations;
9 4. Any other similar procedure that fairly and
10 promptly evaluates the claims.
11
12 Each defendant or insurer of the defendant shall evaluate the
13 claim in good faith.
14 (b) At or before the end of the 75 days, the defendant
15 or insurer of the defendant shall provide the claimant with a
16 written response:
17 1. Rejecting the claim; or
18 2. Making a settlement offer.
19 (c) The response shall be delivered to the claimant if
20 not represented by counsel or to the claimant's attorney, by
21 certified mail, return receipt requested. Failure of the
22 prospective defendant or insurer of the defendant to reply to
23 the notice within 75 days after receipt shall be deemed a
24 rejection of the claim for purposes of this section.
25 (4) The notification of a violation of a resident's
26 rights or alleged negligence shall be served within the
27 applicable statute of limitations period; however, during the
28 75-day period, the statute of limitations is tolled as to all
29 prospective defendants. Upon stipulation by the parties, the
30 75-day period may be extended and the statute of limitations
31 is tolled during any such extension. Upon receiving written
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1 notice by certified mail, return receipt requested, of
2 termination of negotiations in an extended period, the
3 claimant shall have 60 days or the remainder of the period of
4 the statute of limitations, whichever is greater, within which
5 to file suit.
6 (5) No statement, discussion, written document,
7 report, or other work product generated by presuit claims
8 evaluation procedures under this section is discoverable or
9 admissible in any civil action for any purpose by the opposing
10 party. All participants, including, but not limited to,
11 physicians, investigators, witnesses, and employees or
12 associates of the defendant, are immune from civil liability
13 arising from participation in the presuit claims evaluation
14 procedure. Any licensed physician or registered nurse may be
15 retained by either party to provide an opinion regarding the
16 reasonable basis of the claim. The presuit opinions of the
17 expert are not discoverable or admissible in any civil action
18 for any purpose by the opposing party.
19 (6) Upon receipt by a prospective defendant of a
20 notice of claim, the parties shall make discoverable
21 information available without formal discovery as provided in
22 subsection (7).
23 (7) Informal discovery may be used by a party to
24 obtain unsworn statements and the production of documents or
25 things, as follows:
26 (a) Unsworn statements.--Any party may require other
27 parties to appear for the taking of an unsworn statement. Such
28 statements may be used only for the purpose of claims
29 evaluation and are not discoverable or admissible in any civil
30 action for any purpose by any party. A party seeking to take
31 the unsworn statement of any party must give reasonable notice
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1 in writing to all parties. The notice must state the time and
2 place for taking the statement and the name and address of the
3 party to be examined. Unless otherwise impractical, the
4 examination of any party must be done at the same time by all
5 other parties. Any party may be represented by counsel at the
6 taking of an unsworn statement. An unsworn statement may be
7 recorded electronically, stenographically, or on videotape.
8 The taking of unsworn statements is subject to the provisions
9 of the Florida Rules of Civil Procedure and may be terminated
10 for abuses.
11 (b) Documents or things.--Any party may request
12 discovery of relevant documents or things. The documents or
13 things must be produced, at the expense of the requesting
14 party, within 20 days after the date of receipt of the
15 request. A party is required to produce relevant and
16 discoverable documents or things within that party's
17 possession or control, if in good faith it can reasonably be
18 done within the timeframe of the claims evaluation process.
19 (8) Each request for and notice concerning informal
20 discovery pursuant to this section must be in writing, and a
21 copy thereof must be sent to all parties. Such a request or
22 notice must bear a certificate of service identifying the name
23 and address of the person to whom the request or notice is
24 served, the date of the request or notice, and the manner of
25 service thereof.
26 (9) If a prospective defendant makes a written
27 settlement offer, the claimant shall have 15 days from the
28 date of receipt to accept the offer. An offer shall be deemed
29 rejected unless accepted by delivery of a written notice of
30 acceptance.
31 (10) To the extent not inconsistent with this part,
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Amendment No. ___ (for drafter's use only)
1 the provisions of the Florida Mediation Code, Florida Rules of
2 Civil Procedure, shall be applicable to such proceedings.
3 (11) Within 30 days after the claimant's receipt of
4 defendant's response to the claim, the parties or their
5 designated representatives shall meet in mediation to discuss
6 the issues of liability and damages in accordance with the
7 mediation rules of practice and procedures adopted by the
8 Supreme Court. Upon stipulation of the parties, this 30-day
9 period may be extended and the statute of limitations is
10 tolled during the mediation and any such extension. At the
11 conclusion of mediation the claimant shall have 60 days or the
12 remainder of the period of the statute of limitations,
13 whichever is greater, within which to file suit.
14 Section 40. Effective May 15, 2001, and applying to
15 causes of action accruing on or after that date, section
16 400.4294, Florida Statutes, is created to read:
17 400.4294 Availability of facility records for
18 investigation of resident's rights violations and defenses;
19 penalty.--
20 (1) Failure to provide complete copies of a resident's
21 records including, but not limited to, all medical records and
22 the resident's chart, within the control or possession of the
23 facility within 10 days, in accordance with the provisions of
24 s. 400.145, shall constitute evidence of failure of that party
25 to comply with good-faith discovery requirements and shall
26 waive the good-faith certificate and presuit notice
27 requirements under this part by the requesting party.
28 (2) No facility shall be held liable for any civil
29 damages as a result of complying with this section.
30 Section 41. Effective May 15, 2001, and applying to
31 causes of action accruing on or after that date, section
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Amendment No. ___ (for drafter's use only)
1 400.4295, Florida Statutes, is created to read:
2 400.4295 Certain provisions not applicable to actions
3 under this part.--An action under this part for a violation of
4 rights or negligence recognized herein is not a claim for
5 medical malpractice, and the provisions of s. 768.21(8) do not
6 apply to a claim alleging death of the resident.
7 Section 42. Effective May 15, 2001, section 400.4296,
8 Florida Statutes, is created to read:
9 400.4296 Statute of limitations.--
10 (1) Any action for damages brought under this part
11 shall be commenced within 2 years from the time the incident
12 giving rise to the action occurred or within 2 years from the
13 time the incident is discovered, or should have been
14 discovered with the exercise of due diligence; however, in no
15 event shall the action be commenced later than 4 years from
16 the date of the incident or occurrence out of which the cause
17 of action accrued.
18 (2) In those actions covered by this subsection in
19 which it can be shown that fraudulent concealment or
20 intentional misrepresentation of fact prevented the discovery
21 of the injury, the period of limitations is extended forward 2
22 years from the time that the injury is discovered with the
23 exercise of due diligence, but in no event not more than 6
24 years from the date the incident giving rise to the injury
25 occurred.
26 (3) This section shall apply to causes of action that
27 have accrued prior to the effective date of this section;
28 however, any such cause of action that would not have been
29 barred under prior law may be brought within the time allowed
30 by prior law or within 2 years after the effective date of
31 this section, whichever is earlier, and will be barred
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Amendment No. ___ (for drafter's use only)
1 thereafter. In actions where it can be shown that fraudulent
2 concealment or intentional misrepresentation of fact prevented
3 the discovery of the injury, the period of limitations is
4 extended forward 2 years from the time that the injury is
5 discovered with the exercise of due diligence but in no event
6 more than 4 years from the effective date of this section.
7 Section 43. Section 400.4297, Florida Statutes, is
8 created to read:
9 400.4297 Punitive damages; pleading; burden of
10 proof.--
11 (1) In any action for damages brought under this part,
12 no claim for punitive damages shall be permitted unless there
13 is a reasonable showing by evidence in the record or proffered
14 by the claimant which would provide a reasonable basis for
15 recovery of such damages. The claimant may move to amend her
16 or his complaint to assert a claim for punitive damages as
17 allowed by the rules of civil procedure. The rules of civil
18 procedure shall be liberally construed so as to allow the
19 claimant discovery of evidence which appears reasonably
20 calculated to lead to admissible evidence on the issue of
21 punitive damages. No discovery of financial worth shall
22 proceed until after the pleading concerning punitive damages
23 is permitted.
24 (2) A defendant may be held liable for punitive
25 damages only if the trier of fact, based on clear and
26 convincing evidence, finds that the defendant was personally
27 guilty of intentional misconduct or gross negligence. As used
28 in this section, the term:
29 (a) "Intentional misconduct" means that the defendant
30 had actual knowledge of the wrongfulness of the conduct and
31 the high probability that injury or damage to the claimant
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1 would result and, despite that knowledge, intentionally
2 pursued that course of conduct, resulting in injury or damage.
3 (b) "Gross negligence" means that the defendant's
4 conduct was so reckless or wanting in care that it constituted
5 a conscious disregard or indifference to the life, safety, or
6 rights of persons exposed to such conduct.
7 (3) In the case of an employer, principal,
8 corporation, or other legal entity, punitive damages may be
9 imposed for the conduct of an employee or agent only if the
10 conduct of the employee or agent meets the criteria specified
11 in subsection (2) and:
12 (a) The employer, principal, corporation, or other
13 legal entity actively and knowingly participated in such
14 conduct;
15 (b) The officers, directors, or managers of the
16 employer, principal, corporation, or other legal entity
17 condoned, ratified, or consented to such conduct; or
18 (c) The employer, principal, corporation, or other
19 legal entity engaged in conduct that constituted gross
20 negligence and that contributed to the loss, damages, or
21 injury suffered by the claimant.
22 (4) The plaintiff must establish at trial, by clear
23 and convincing evidence, its entitlement to an award of
24 punitive damages. The "greater weight of the evidence" burden
25 of proof applies to a determination of the amount of damages.
26 (5) This section is remedial in nature and shall take
27 effect upon becoming a law.
28 Section 44. Section 400.4298, Florida Statutes, is
29 created to read:
30 400.4298 Punitive damages; limitation.--
31 (1)(a) Except as provided in paragraphs (b) and (c),
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Amendment No. ___ (for drafter's use only)
1 an award of punitive damages may not exceed the greater of:
2 1. Three times the amount of compensatory damages
3 awarded to each claimant entitled thereto, consistent with the
4 remaining provisions of this section; or
5 2. The sum of $1 million.
6 (b) Where the fact finder determines that the wrongful
7 conduct proven under this section was motivated primarily by
8 unreasonable financial gain and determines that the
9 unreasonably dangerous nature of the conduct, together with
10 the high likelihood of injury resulting from the conduct, was
11 actually known by the managing agent, director, officer, or
12 other person responsible for making policy decisions on behalf
13 of the defendant, it may award an amount of punitive damages
14 not to exceed the greater of:
15 1. Four times the amount of compensatory damages
16 awarded to each claimant entitled thereto, consistent with the
17 remaining provisions of this section; or
18 2. The sum of $4 million.
19 (c) Where the fact finder determines that at the time
20 of injury the defendant had a specific intent to harm the
21 claimant and determines that the defendant's conduct did in
22 fact harm the claimant, there shall be no cap on punitive
23 damages.
24 (d) This subsection is not intended to prohibit an
25 appropriate court from exercising its jurisdiction under s.
26 768.74 in determining the reasonableness of an award of
27 punitive damages that is less than three times the amount of
28 compensatory damages.
29 (e) In any case in which the findings of fact support
30 an award of punitive damages pursuant to paragraph (b) or
31 paragraph (c), the clerk of the court shall refer the case to
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Amendment No. ___ (for drafter's use only)
1 the appropriate law enforcement agencies, to the state
2 attorney in the circuit where the long-term care facility that
3 is the subject of the underlying civil cause of action is
4 located, and, for multijurisdictional facility owners, to the
5 Office of the Statewide Prosecutor; and such agencies, state
6 attorney, or Office of the Statewide Prosecutor shall initiate
7 a criminal investigation into the conduct giving rise to the
8 award of punitive damages. All findings by the trier of fact
9 which support an award of punitive damages under this
10 paragraph shall be admissible as evidence in any subsequent
11 civil or criminal proceeding relating to the acts giving rise
12 to the award of punitive damages under this paragraph.
13 (2) The claimant's attorney's fees, if payable from
14 the judgment, are, to the extent that the fees are based on
15 the punitive damages, calculated based on the final judgment
16 for punitive damages. This subsection does not limit the
17 payment of attorney's fees based upon an award of damages
18 other than punitive damages.
19 (3) The jury may neither be instructed nor informed as
20 to the provisions of this section.
21 (4) Notwithstanding any other law to the contrary, the
22 amount of punitive damages awarded pursuant to this section
23 shall be equally divided between the claimant and the Quality
24 of Long-Term Care Facility Improvement Trust Fund, in
25 accordance with the following provisions:
26 (a) The clerk of the court shall transmit a copy of
27 the jury verdict to the State Treasurer by certified mail. In
28 the final judgment the court shall order the percentages of
29 the award, payable as provided herein.
30 (b) A settlement agreement entered into between the
31 original parties to the action after a verdict has been
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1 returned must provide a proportionate share payable to the
2 Quality of Long-Term Care Facility Improvement Trust Fund
3 specified herein. For purposes of this paragraph, a
4 proportionate share is a 50-percent share of that percentage
5 of the settlement amount which the punitive damages portion of
6 the verdict bore to the total of the compensatory and punitive
7 damages in the verdict.
8 (c) The Department of Banking and Finance shall
9 collect or cause to be collected all payments due the state
10 under this section. Such payments are made to the Comptroller
11 and deposited in the appropriate fund specified in this
12 subsection.
13 (d) If the full amount of punitive damages awarded
14 cannot be collected, the claimant and the other recipient
15 designated pursuant to this subsection are each entitled to a
16 proportionate share of the punitive damages collected.
17 (5) This section is remedial in nature and shall take
18 effect upon becoming a law.
19 Section 45. Section 400.434, Florida Statutes, is
20 amended to read:
21 400.434 Right of entry and inspection.--Any duly
22 designated officer or employee of the department, the
23 Department of Children and Family Services, the agency, the
24 state or local fire marshal, or a member of the state or local
25 long-term care ombudsman council shall have the right to enter
26 unannounced upon and into the premises of any facility
27 licensed pursuant to this part in order to determine the state
28 of compliance with the provisions of this part and of rules or
29 standards in force pursuant thereto. The right of entry and
30 inspection shall also extend to any premises which the agency
31 has reason to believe is being operated or maintained as a
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Amendment No. ___ (for drafter's use only)
1 facility without a license; but no such entry or inspection of
2 any premises may be made without the permission of the owner
3 or person in charge thereof, unless a warrant is first
4 obtained from the circuit court authorizing such entry. The
5 warrant requirement shall extend only to a facility which the
6 agency has reason to believe is being operated or maintained
7 as a facility without a license. Any application for a
8 license or renewal thereof made pursuant to this part shall
9 constitute permission for, and complete acquiescence in, any
10 entry or inspection of the premises for which the license is
11 sought, in order to facilitate verification of the information
12 submitted on or in connection with the application; to
13 discover, investigate, and determine the existence of abuse or
14 neglect; or to elicit, receive, respond to, and resolve
15 complaints. Any current valid license shall constitute
16 unconditional permission for, and complete acquiescence in,
17 any entry or inspection of the premises by authorized
18 personnel. The agency shall retain the right of entry and
19 inspection of facilities that have had a license revoked or
20 suspended within the previous 24 months, to ensure that the
21 facility is not operating unlawfully. However, before entering
22 the facility, a statement of probable cause must be filed with
23 the director of the agency, who must approve or disapprove the
24 action within 48 hours. Probable cause shall include, but is
25 not limited to, evidence that the facility holds itself out to
26 the public as a provider of personal care services or the
27 receipt of a complaint by the long-term care ombudsman council
28 about the facility. Data collected by the state or local
29 long-term care ombudsman councils or the state or local
30 advocacy councils may be used by the agency in investigations
31 involving violations of regulatory standards.
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1 Section 46. Paragraph (h) of subsection (1) and
2 subsection (4) of section 400.441, Florida Statutes, are
3 amended to read:
4 400.441 Rules establishing standards.--
5 (1) It is the intent of the Legislature that rules
6 published and enforced pursuant to this section shall include
7 criteria by which a reasonable and consistent quality of
8 resident care and quality of life may be ensured and the
9 results of such resident care may be demonstrated. Such rules
10 shall also ensure a safe and sanitary environment that is
11 residential and noninstitutional in design or nature. It is
12 further intended that reasonable efforts be made to
13 accommodate the needs and preferences of residents to enhance
14 the quality of life in a facility. In order to provide safe
15 and sanitary facilities and the highest quality of resident
16 care accommodating the needs and preferences of residents, the
17 department, in consultation with the agency, the Department of
18 Children and Family Services, and the Department of Health,
19 shall adopt rules, policies, and procedures to administer this
20 part, which must include reasonable and fair minimum standards
21 in relation to:
22 (h) The care and maintenance of residents, which must
23 include, but is not limited to:
24 1. The supervision of residents;
25 2. The provision of personal services;
26 3. The provision of, or arrangement for, social and
27 leisure activities;
28 4. The arrangement for appointments and transportation
29 to appropriate medical, dental, nursing, or mental health
30 services, as needed by residents;
31 5. The management of medication;
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1 6. The nutritional needs of residents; and
2 7. Resident records; and.
3 8. Internal risk management and quality assurance.
4 (4) The agency may use an abbreviated biennial
5 standard licensure inspection that which consists of a review
6 of key quality-of-care standards in lieu of a full inspection
7 in facilities which have a good record of past performance.
8 However, a full inspection shall be conducted in facilities
9 which have had a history of class I or class II violations,
10 uncorrected class III violations, confirmed ombudsman council
11 complaints, or confirmed licensure complaints, within the
12 previous licensure period immediately preceding the inspection
13 or when a potentially serious problem is identified during the
14 abbreviated inspection. The agency, in consultation with the
15 department, shall develop the key quality-of-care standards
16 with input from the State Long-Term Care Ombudsman Council and
17 representatives of provider groups for incorporation into its
18 rules. Beginning on or before March 1, 1991, The department,
19 in consultation with the agency, shall report annually to the
20 Legislature concerning its implementation of this subsection.
21 The report shall include, at a minimum, the key
22 quality-of-care standards which have been developed; the
23 number of facilities identified as being eligible for the
24 abbreviated inspection; the number of facilities which have
25 received the abbreviated inspection and, of those, the number
26 that were converted to full inspection; the number and type of
27 subsequent complaints received by the agency or department on
28 facilities which have had abbreviated inspections; any
29 recommendations for modification to this subsection; any plans
30 by the agency to modify its implementation of this subsection;
31 and any other information which the department believes should
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Amendment No. ___ (for drafter's use only)
1 be reported.
2 Section 47. Section 400.449, Florida Statutes, is
3 created to read:
4 400.449 Resident records; penalties for alteration.--
5 (1) Any person who fraudulently alters, defaces, or
6 falsifies any medical or other record of an assisted living
7 facility, or causes or procures any such offense to be
8 committed, commits a misdemeanor of the second degree,
9 punishable as provided in s. 775.082 or s. 775.083.
10 (2) A conviction under subsection (1) is also grounds
11 for restriction, suspension, or termination of license
12 privileges.
13 Section 48. Paragraph (b) of subsection (2) of section
14 409.908, Florida Statutes, is amended to read:
15 409.908 Reimbursement of Medicaid providers.--Subject
16 to specific appropriations, the agency shall reimburse
17 Medicaid providers, in accordance with state and federal law,
18 according to methodologies set forth in the rules of the
19 agency and in policy manuals and handbooks incorporated by
20 reference therein. These methodologies may include fee
21 schedules, reimbursement methods based on cost reporting,
22 negotiated fees, competitive bidding pursuant to s. 287.057,
23 and other mechanisms the agency considers efficient and
24 effective for purchasing services or goods on behalf of
25 recipients. Payment for Medicaid compensable services made on
26 behalf of Medicaid eligible persons is subject to the
27 availability of moneys and any limitations or directions
28 provided for in the General Appropriations Act or chapter 216.
29 Further, nothing in this section shall be construed to prevent
30 or limit the agency from adjusting fees, reimbursement rates,
31 lengths of stay, number of visits, or number of services, or
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Amendment No. ___ (for drafter's use only)
1 making any other adjustments necessary to comply with the
2 availability of moneys and any limitations or directions
3 provided for in the General Appropriations Act, provided the
4 adjustment is consistent with legislative intent.
5 (2)
6 (b) Subject to any limitations or directions provided
7 for in the General Appropriations Act, the agency shall
8 establish and implement a Florida Title XIX Long-Term Care
9 Reimbursement Plan (Medicaid) for nursing home care in order
10 to provide care and services in conformance with the
11 applicable state and federal laws, rules, regulations, and
12 quality and safety standards and to ensure that individuals
13 eligible for medical assistance have reasonable geographic
14 access to such care.
15 1. Changes of ownership or of licensed operator do not
16 qualify for increases in reimbursement rates associated with
17 the change of ownership or of licensed operator. The agency
18 shall amend the Title XIX Long Term Care Reimbursement Plan to
19 provide that the initial nursing home reimbursement rates, for
20 the operating, patient care, and MAR components, associated
21 with changes of ownership filed on or after July 1, 2001, are
22 equivalent to the previous owner's reimbursement rate.
23 2. The agency shall amend the long-term care
24 reimbursement plan and cost reporting system to create direct
25 care and indirect care subcomponents of the patient care
26 component of the per diem rate. These two subcomponents
27 together shall equal the patient care component of the per
28 diem rate. Separate cost-based ceilings shall be calculated
29 for each patient care subcomponent. The direct care
30 subcomponent of the per diem rate shall be limited by the
31 cost-based class ceiling and the indirect care subcomponent
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1 shall be limited by the lower of the cost-based class ceiling,
2 by the target rate class ceiling or by the individual provider
3 target. The agency shall adjust the direct care subcomponent
4 effective October 1, 2001. The cost to adjust the direct care
5 subcomponent shall be net of the total funds previously
6 allocated for the case mix add-on. The indirect subcomponent
7 shall not be adjusted and the individual provider targets, and
8 the target rate class ceilings for the indirect care
9 subcomponent shall be lowered proportionately to account for
10 the separation of costs into a direct and an indirect care
11 subcomponent. The agency shall make the required changes to
12 the nursing home cost reporting forms to implement this
13 requirement effective January 1, 2002.
14 3. The direct care subcomponent shall include salaries
15 and benefits of direct care staff providing nursing services
16 including registered nurses, licensed practical nurses, and
17 certified nursing assistants who deliver care directly to
18 residents in the nursing home facility. This excludes nursing
19 administration, MDS, and care plan coordinators, staff
20 development, staffing coordinator, and contract nursing
21 services.
22 4. All other patient care costs shall be included in
23 the indirect care cost subcomponent of the patient care per
24 diem rate. There shall be no costs directly or indirectly
25 allocated to the direct care subcomponent from a home office
26 or management company.
27 5. On July 1 of each year, the agency shall report to
28 the Legislature direct and indirect care costs, including
29 average direct and indirect care costs per resident per
30 facility and direct care and indirect care salaries and
31 benefits per category of staff member per facility.
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1 6. Under the plan, interim rate adjustments shall not
2 be granted to reflect increases in the cost of general or
3 professional liability insurance for nursing homes unless the
4 following criteria are met: have at least a 65 percent
5 Medicaid utilization in the most recent cost report submitted
6 to the agency, and the increase in general or professional
7 liability costs to the facility for the most recent policy
8 period affects the total Medicaid per diem by at least 5
9 percent. This rate adjustment shall not result in the per diem
10 exceeding the class ceiling. This provision shall apply only
11 to fiscal year 2000-2001 and shall be implemented to the
12 extent existing appropriations are available. The agency shall
13 report to the Governor, the Speaker of the House of
14 Representatives, and the President of the Senate by December
15 31, 2000, on the cost of liability insurance for Florida
16 nursing homes for fiscal years 1999 and 2000 and the extent to
17 which these costs are not being compensated by the Medicaid
18 program. Medicaid-participating nursing homes shall be
19 required to report to the agency information necessary to
20 compile this report. Effective no earlier than the
21 rate-setting period beginning April 1, 1999, the agency shall
22 establish a case-mix reimbursement methodology for the rate of
23 payment for long-term care services for nursing home
24 residents. The agency shall compute a per diem rate for
25 Medicaid residents, adjusted for case mix, which is based on a
26 resident classification system that accounts for the relative
27 resource utilization by different types of residents and which
28 is based on level-of-care data and other appropriate data. The
29 case-mix methodology developed by the agency shall take into
30 account the medical, behavioral, and cognitive deficits of
31 residents. In developing the reimbursement methodology, the
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Amendment No. ___ (for drafter's use only)
1 agency shall evaluate and modify other aspects of the
2 reimbursement plan as necessary to improve the overall
3 effectiveness of the plan with respect to the costs of patient
4 care, operating costs, and property costs. In the event
5 adequate data are not available, the agency is authorized to
6 adjust the patient's care component or the per diem rate to
7 more adequately cover the cost of services provided in the
8 patient's care component. The agency shall work with the
9 Department of Elderly Affairs, the Florida Health Care
10 Association, and the Florida Association of Homes for the
11 Aging in developing the methodology.
12
13 It is the intent of the Legislature that the reimbursement
14 plan achieve the goal of providing access to health care for
15 nursing home residents who require large amounts of care while
16 encouraging diversion services as an alternative to nursing
17 home care for residents who can be served within the
18 community. The agency shall base the establishment of any
19 maximum rate of payment, whether overall or component, on the
20 available moneys as provided for in the General Appropriations
21 Act. The agency may base the maximum rate of payment on the
22 results of scientifically valid analysis and conclusions
23 derived from objective statistical data pertinent to the
24 particular maximum rate of payment.
25 Section 49. Subsections (2) and (3) of section
26 430.709, Florida Statutes, are amended to read:
27 430.709 Reports and evaluations.--
28 (2) The agency, in consultation with the department,
29 shall contract for an independent evaluation of the community
30 diversion pilot projects. Such evaluation must include a
31 careful review and assessment of the actual cost for the
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Amendment No. ___ (for drafter's use only)
1 provision of services to enrollees participants. No later than
2 120 days after the effective date of this section, the agency
3 shall select a contractor with experience and expertise in
4 evaluating capitation rates for managed care organizations
5 serving a disabled or frail elderly population to conduct the
6 evaluation of the community diversion pilot project as defined
7 in s. 430.703. The contractor shall demonstrate the capacity
8 to evaluate managed care arrangements that seek to test the
9 blending of Medicaid and Medicare capitation as a strategy to
10 provide efficient, cost-effective care. The contractor shall
11 report to the agency and the Legislature the specific array of
12 services provided to each enrollee, the average number of
13 times per week each service was provided, the unit cost and
14 total cost per week to provide the service, the total cost of
15 all services provided to the enrollee, and the enrollment
16 period for which total costs were calculated. In addition, the
17 contractor shall report to the agency and the Legislature the
18 total number of enrollees to date; the total payment to the
19 managed care organization for enrollees; the number of
20 enrollees who have been admitted to a nursing facility; the
21 total number of days enrollees have spent in nursing home
22 facilities; the number of enrollees who have disenrolled from
23 the project; the average length of time participants were
24 enrolled, expressed as the mean number of days and standard
25 deviation; the number of persons who disenrolled and
26 subsequently became a nursing home resident; the number of
27 enrollees who have died while enrolled in the project and the
28 mean number of days enrolled prior to death; the list of
29 available services delivered in-home by percentage of
30 enrollees receiving the service; the list of available
31 services delivered out-of-home by percentage of enrollees
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Amendment No. ___ (for drafter's use only)
1 receiving the service. The evaluation contractor shall analyze
2 and report the individual services and the array of services
3 most associated with effective diversion of frail elderly
4 enrollees from nursing home placement. Further, the contractor
5 will evaluate the project responses to at least the following
6 questions:
7 (a) Was the cost of the diversion project per person
8 less than the cost of providing services through
9 fee-for-service Medicaid?
10 (b) Did the diversion project increase access to
11 physical health care, mental health care, and social services?
12 (c) Did the diversion project maintain or improve the
13 quality of care and quality of life of the participants?
14 (d) What was the functional status of participants
15 before enrolling in the diversion project, and what was the
16 functional status at various points during and after
17 enrollment?
18 (e) How many participants disenrolled and at what
19 point after enrolling?
20 (f) Why did participants disenroll?
21 (g) Did the department develop specialized contract
22 standards and quality assurance measures?
23 (h) Did the department assess quality of care,
24 appropriateness of care claims data analysis, and consumer
25 self-report data?
26 (i) Does the cost analysis show savings to the state?
27 (j) What were the results of recipient profile and
28 enrollment analyses?
29 (k) What were the results of the family satisfaction
30 and consumer outcome analyses?
31 (l) How did hospital admissions and preventable
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Amendment No. ___ (for drafter's use only)
1 readmissions differ among nursing home enrollees in the
2 diversion project, nursing home residents not in the project,
3 and frail elders living in the community? Did payer or
4 provider type have a significant relationship to the number of
5 hospital admissions?
6 (m) What agencies or providers did the diversion
7 project contractor engage to provide noninstitutional
8 services?
9 (n) Was there a volume-outcome or dose-response
10 relationship between the utilization rate of noninstitutional
11 services, functional assessment, and the ability of the
12 enrollee to remain in the community?
13 (3) The evaluation contractor shall submit the final
14 report to the Speaker of the House of Representatives and the
15 President of the Senate on or before February 15, 2002.
16 Subsequent to the completion of the evaluation and submission
17 of the evaluation report to the Legislature, the agency, in
18 consultation with the department, in consultation with the
19 agency, shall assess and make specific recommendations to the
20 Legislature as to the feasibility of implementing a managed
21 long-term care system throughout the state to serve
22 appropriate Medicaid-eligible long-term care recipients age 60
23 years and older.
24 Section 50. Section 464.203, Florida Statutes, is
25 amended to read:
26 464.203 Certified nursing assistants; certification
27 requirement.--
28 (1) The board shall issue a certificate to practice as
29 a certified nursing assistant to any person who demonstrates a
30 minimum competency to read and write and successfully passes
31 the required Level I or Level II screening pursuant to s.
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1 400.215 and meets one of the following requirements:
2 (a) Has successfully completed an approved training
3 program and achieved a minimum score, established by rule of
4 the board, on the nursing assistant competency examination,
5 which consists of a written portion and skills-demonstration
6 portion approved by the board and administered at a site and
7 by personnel approved by the department.
8 (b) Has achieved a minimum score, established by rule
9 of the board, on the nursing assistant competency examination,
10 which consists of a written portion and skills-demonstration
11 portion, approved by the board and administered at a site and
12 by personnel approved by the department and:
13 1. Has a high school diploma, or its equivalent; or
14 2. Is at least 18 years of age.
15 (c) Is currently certified in another state; is listed
16 on that state's certified nursing assistant registry; and has
17 not been found to have committed abuse, neglect, or
18 exploitation in that state.
19 (d) Has completed the curriculum developed under the
20 Enterprise Florida Jobs and Education Partnership Grant and
21 achieved a minimum score, established by rule of the board, on
22 the nursing assistant competency examination, which consists
23 of a written portion and skills-demonstration portion,
24 approved by the board and administered at a site and by
25 personnel approved by the department.
26 (2) If an applicant fails to pass the nursing
27 assistant competency examination in three attempts, the
28 applicant is not eligible for reexamination unless the
29 applicant completes an approved training program.
30 (3) An oral examination shall be administered as a
31 substitute for the written portion of the examination upon
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Amendment No. ___ (for drafter's use only)
1 request. The oral examination shall be administered at a site
2 and by personnel approved by the department.
3 (4) The board shall adopt rules to provide for the
4 initial certification of certified nursing assistants.
5 (5) Certification as a nursing assistant, in
6 accordance with this part, continues in effect until such time
7 as the nursing assistant allows a period of 24 consecutive
8 months to pass during which period the nursing assistant fails
9 to perform any nursing-related services for monetary
10 compensation. When a nursing assistant fails to perform any
11 nursing-related services for monetary compensation for a
12 period of 24 consecutive months, the nursing assistant must
13 complete a new training and competency evaluation program or a
14 new competency evaluation program.
15 (6)(5) A certified nursing assistant shall maintain a
16 current address with the board in accordance with s. 456.035.
17 (7) A certified nursing assistant shall complete 18
18 hours of inservice training during each calendar year. The
19 certified nursing assistant shall be responsible for
20 maintaining documentation demonstrating compliance with these
21 provisions. The Council on Certified Nursing Assistants, in
22 accordance with s. 464.0285(2)(b), shall propose rules to
23 implement this subsection.
24 Section 51. Subsection (2) of section 397.405, Florida
25 Statutes, is amended to read:
26 397.405 Exemptions from licensure.--The following are
27 exempt from the licensing provisions of this chapter:
28 (2) A nursing home facility as defined in s. 400.021
29 s. 400.021(12).
30
31 The exemptions from licensure in this section do not apply to
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Amendment No. ___ (for drafter's use only)
1 any facility or entity which receives an appropriation, grant,
2 or contract from the state to operate as a service provider as
3 defined in this chapter or to any substance abuse program
4 regulated pursuant to s. 397.406. No provision of this
5 chapter shall be construed to limit the practice of a
6 physician licensed under chapter 458 or chapter 459, a
7 psychologist licensed under chapter 490, or a psychotherapist
8 licensed under chapter 491, providing outpatient or inpatient
9 substance abuse treatment to a voluntary patient, so long as
10 the physician, psychologist, or psychotherapist does not
11 represent to the public that he or she is a licensed service
12 provider under this act. Failure to comply with any
13 requirement necessary to maintain an exempt status under this
14 section is a misdemeanor of the first degree, punishable as
15 provided in s. 775.082 or s. 775.083.
16 Section 52. Notwithstanding the establishment of need
17 as provided for in chapter 408, Florida Statutes, no
18 certificate of need for additional community nursing home beds
19 shall be approved by the agency until July 1, 2006. The
20 Legislature finds that the continued growth in the Medicaid
21 budget for nursing home care has constrained the ability of
22 the state to meet the needs of its elderly residents through
23 the use of less restrictive and less institutional methods of
24 long-term care. It is therefore the intent of the Legislature
25 to limit the increase in Medicaid nursing home expenditures in
26 order to provide funds to invest in long-term care that is
27 community-based and provides supportive services in a manner
28 that is both more cost-effective and more in keeping with the
29 wishes of the elderly residents of this state. This moratorium
30 on certificates of need shall not apply to nursing home beds
31 that are not eligible for Medicaid reimbursement in a
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Amendment No. ___ (for drafter's use only)
1 continuing care retirement community certified by the
2 Department of Insurance pursuant to chapter 651, Florida
3 Statutes.
4 Section 53. Subsections (3) and (8) of section
5 400.0255, Florida Statutes, as amended by section 138 of
6 chapter 2000-349, section 3 of chapter 2000-350, and section
7 58 of chapter 2000-367, Laws of Florida, are reenacted to
8 read:
9 400.0255 Resident transfer or discharge; requirements
10 and procedures; hearings.--
11 (3) When a discharge or transfer is initiated by the
12 nursing home, the nursing home administrator employed by the
13 nursing home that is discharging or transferring the resident,
14 or an individual employed by the nursing home who is
15 designated by the nursing home administrator to act on behalf
16 of the administration, must sign the notice of discharge or
17 transfer. Any notice indicating a medical reason for transfer
18 or discharge must either be signed by the resident's attending
19 physician or the medical director of the facility, or include
20 an attached written order for the discharge or transfer. The
21 notice or the order must be signed by the resident's
22 physician, medical director, treating physician, nurse
23 practitioner, or physician assistant.
24 (8) The notice required by subsection (7) must be in
25 writing and must contain all information required by state and
26 federal law, rules, or regulations applicable to Medicaid or
27 Medicare cases. The agency shall develop a standard document
28 to be used by all facilities licensed under this part for
29 purposes of notifying residents of a discharge or transfer.
30 Such document must include a means for a resident to request
31 the local long-term care ombudsman council to review the
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Amendment No. ___ (for drafter's use only)
1 notice and request information about or assistance with
2 initiating a fair hearing with the department's Office of
3 Appeals Hearings. In addition to any other pertinent
4 information included, the form shall specify the reason
5 allowed under federal or state law that the resident is being
6 discharged or transferred, with an explanation to support this
7 action. Further, the form shall state the effective date of
8 the discharge or transfer and the location to which the
9 resident is being discharged or transferred. The form shall
10 clearly describe the resident's appeal rights and the
11 procedures for filing an appeal, including the right to
12 request the local ombudsman council to review the notice of
13 discharge or transfer. A copy of the notice must be placed in
14 the resident's clinical record, and a copy must be transmitted
15 to the resident's legal guardian or representative and to the
16 local ombudsman council within 5 business days after signature
17 by the resident or resident designee.
18 Section 54. Subsection (5) of section 400.23, Florida
19 Statutes, as amended by section 6 of chapter 2000-350, Laws of
20 Florida, is reenacted to read:
21 400.23 Rules; evaluation and deficiencies; licensure
22 status.--
23 (5) The agency, in collaboration with the Division of
24 Children's Medical Services of the Department of Health, must,
25 no later than December 31, 1993, adopt rules for minimum
26 standards of care for persons under 21 years of age who reside
27 in nursing home facilities. The rules must include a
28 methodology for reviewing a nursing home facility under ss.
29 408.031-408.045 which serves only persons under 21 years of
30 age. A facility may be exempt from these standards for
31 specific persons between 18 and 21 years of age, if the
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Amendment No. ___ (for drafter's use only)
1 person's physician agrees that minimum standards of care based
2 on age are not necessary.
3 Section 55. Subsection (2) of section 400.191, Florida
4 Statutes, as amended by section 5 of chapter 2000-350, Laws of
5 Florida, and subsection (6) of that section, as created by
6 section 5 of chapter 2000-350, Laws of Florida, are reenacted
7 to read:
8 400.191 Availability, distribution, and posting of
9 reports and records.--
10 (2) The agency shall provide additional information in
11 consumer-friendly printed and electronic formats to assist
12 consumers and their families in comparing and evaluating
13 nursing home facilities.
14 (a) The agency shall provide an Internet site which
15 shall include at least the following information either
16 directly or indirectly through a link to another established
17 site or sites of the agency's choosing:
18 1. A list by name and address of all nursing home
19 facilities in this state.
20 2. Whether such nursing home facilities are
21 proprietary or nonproprietary.
22 3. The current owner of the facility's license and the
23 year that that entity became the owner of the license.
24 4. The name of the owner or owners of each facility
25 and whether the facility is affiliated with a company or other
26 organization owning or managing more than one nursing facility
27 in this state.
28 5. The total number of beds in each facility.
29 6. The number of private and semiprivate rooms in each
30 facility.
31 7. The religious affiliation, if any, of each
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Amendment No. ___ (for drafter's use only)
1 facility.
2 8. The languages spoken by the administrator and staff
3 of each facility.
4 9. Whether or not each facility accepts Medicare or
5 Medicaid recipients or insurance, health maintenance
6 organization, Veterans Administration, CHAMPUS program, or
7 workers' compensation coverage.
8 10. Recreational and other programs available at each
9 facility.
10 11. Special care units or programs offered at each
11 facility.
12 12. Whether the facility is a part of a retirement
13 community that offers other services pursuant to part III,
14 part IV, or part V.
15 13. The results of consumer and family satisfaction
16 surveys for each facility, as described in s. 400.0225. The
17 results may be converted to a score or scores, which may be
18 presented in either numeric or symbolic form for the intended
19 consumer audience.
20 14. Survey and deficiency information contained on the
21 Online Survey Certification and Reporting (OSCAR) system of
22 the federal Health Care Financing Administration, including
23 annual survey, revisit, and complaint survey information, for
24 each facility for the past 45 months. For noncertified
25 nursing homes, state survey and deficiency information,
26 including annual survey, revisit, and complaint survey
27 information for the past 45 months shall be provided.
28 15. A summary of the Online Survey Certification and
29 Reporting (OSCAR) data for each facility over the past 45
30 months. Such summary may include a score, rating, or
31 comparison ranking with respect to other facilities based on
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Amendment No. ___ (for drafter's use only)
1 the number of citations received by the facility of annual,
2 revisit, and complaint surveys; the severity and scope of the
3 citations; and the number of annual recertification surveys
4 the facility has had during the past 45 months. The score,
5 rating, or comparison ranking may be presented in either
6 numeric or symbolic form for the intended consumer audience.
7 (b) The agency shall provide the following information
8 in printed form:
9 1. A list by name and address of all nursing home
10 facilities in this state.
11 2. Whether such nursing home facilities are
12 proprietary or nonproprietary.
13 3. The current owner or owners of the facility's
14 license and the year that entity became the owner of the
15 license.
16 4. The total number of beds, and of private and
17 semiprivate rooms, in each facility.
18 5. The religious affiliation, if any, of each
19 facility.
20 6. The name of the owner of each facility and whether
21 the facility is affiliated with a company or other
22 organization owning or managing more than one nursing facility
23 in this state.
24 7. The languages spoken by the administrator and staff
25 of each facility.
26 8. Whether or not each facility accepts Medicare or
27 Medicaid recipients or insurance, health maintenance
28 organization, Veterans Administration, CHAMPUS program, or
29 workers' compensation coverage.
30 9. Recreational programs, special care units, and
31 other programs available at each facility.
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Amendment No. ___ (for drafter's use only)
1 10. The results of consumer and family satisfaction
2 surveys for each facility, as described in s. 400.0225. The
3 results may be converted to a score or scores, which may be
4 presented in either numeric or symbolic form for the intended
5 consumer audience.
6 11. The Internet address for the site where more
7 detailed information can be seen.
8 12. A statement advising consumers that each facility
9 will have its own policies and procedures related to
10 protecting resident property.
11 13. A summary of the Online Survey Certification and
12 Reporting (OSCAR) data for each facility over the past 45
13 months. Such summary may include a score, rating, or
14 comparison ranking with respect to other facilities based on
15 the number of citations received by the facility on annual,
16 revisit, and complaint surveys; the severity and scope of the
17 citations; the number of citations; and the number of annual
18 recertification surveys the facility has had during the past
19 45 months. The score, rating, or comparison ranking may be
20 presented in either numeric or symbolic form for the intended
21 consumer audience.
22 (c) For purposes of this subsection, references to the
23 Online Survey Certification and Reporting (OSCAR) system shall
24 refer to any future system that the Health Care Financing
25 Administration develops to replace the current OSCAR system.
26 (d) The agency may provide the following additional
27 information on an Internet site or in printed form as the
28 information becomes available:
29 1. The licensure status history of each facility.
30 2. The rating history of each facility.
31 3. The regulatory history of each facility, which may
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Amendment No. ___ (for drafter's use only)
1 include federal sanctions, state sanctions, federal fines,
2 state fines, and other actions.
3 4. Whether the facility currently possesses the Gold
4 Seal designation awarded pursuant to s. 400.235.
5 5. Internet links to the Internet sites of the
6 facilities or their affiliates.
7 (6) The agency may adopt rules as necessary to
8 administer this section.
9 Section 56. Section 400.0225, Florida Statutes, as
10 amended by section 2 of chapter 2000-350, Laws of Florida, is
11 reenacted to read:
12 400.0225 Consumer satisfaction surveys.--The agency,
13 or its contractor, in consultation with the nursing home
14 industry and consumer representatives, shall develop an
15 easy-to-use consumer satisfaction survey, shall ensure that
16 every nursing facility licensed pursuant to this part
17 participates in assessing consumer satisfaction, and shall
18 establish procedures to ensure that, at least annually, a
19 representative sample of residents of each facility is
20 selected to participate in the survey. The sample shall be of
21 sufficient size to allow comparisons between and among
22 facilities. Family members, guardians, or other resident
23 designees may assist the resident in completing the survey.
24 Employees and volunteers of the nursing facility or of a
25 corporation or business entity with an ownership interest in
26 the facility are prohibited from assisting a resident with or
27 attempting to influence a resident's responses to the consumer
28 satisfaction survey. The agency, or its contractor, shall
29 survey family members, guardians, or other resident designees.
30 The agency, or its contractor, shall specify the protocol for
31 conducting and reporting the consumer satisfaction surveys.
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Amendment No. ___ (for drafter's use only)
1 Reports of consumer satisfaction surveys shall protect the
2 identity of individual respondents. The agency shall contract
3 for consumer satisfaction surveys and report the results of
4 those surveys in the consumer information materials prepared
5 and distributed by the agency. The agency may adopt rules as
6 necessary to administer this section.
7 Section 57. Subsections (4) and (5) of section
8 400.141, Florida Statutes, as renumbered and amended by
9 section 4 of chapter 2000-350, Laws of Florida, are reenacted
10 to read:
11 400.141 Administration and management of nursing home
12 facilities.--Every licensed facility shall comply with all
13 applicable standards and rules of the agency and shall:
14 (4) Provide for resident use of a community pharmacy
15 as specified in s. 400.022(1)(q). Any other law to the
16 contrary notwithstanding, a registered pharmacist licensed in
17 Florida, that is under contract with a facility licensed under
18 this chapter, shall repackage a nursing facility resident's
19 bulk prescription medication which has been packaged by
20 another pharmacist licensed in any state in the United States
21 into a unit dose system compatible with the system used by the
22 nursing facility, if the pharmacist is requested to offer such
23 service. To be eligible for repackaging, a resident or the
24 resident's spouse must receive prescription medication
25 benefits provided through a former employer as part of his or
26 her retirement benefits a qualified pension plan as specified
27 in s. 4972 of the Internal Revenue Code, a federal retirement
28 program as specified under 5 C.F.R. s. 831, or a long-term
29 care policy as defined in s. 627.9404(1). A pharmacist who
30 correctly repackages and relabels the medication and the
31 nursing facility which correctly administers such repackaged
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Amendment No. ___ (for drafter's use only)
1 medication under the provisions of this subsection shall not
2 be held liable in any civil or administrative action arising
3 from the repackaging. In order to be eligible for the
4 repackaging, a nursing facility resident for whom the
5 medication is to be repackaged shall sign an informed consent
6 form provided by the facility which includes an explanation of
7 the repackaging process and which notifies the resident of the
8 immunities from liability provided herein. A pharmacist who
9 repackages and relabels prescription medications, as
10 authorized under this subsection, may charge a reasonable fee
11 for costs resulting from the implementation of this provision.
12 (5) Provide for the access of the facility residents
13 to dental and other health-related services, recreational
14 services, rehabilitative services, and social work services
15 appropriate to their needs and conditions and not directly
16 furnished by the licensee. When a geriatric outpatient nurse
17 clinic is conducted in accordance with rules adopted by the
18 agency, outpatients attending such clinic shall not be counted
19 as part of the general resident population of the nursing home
20 facility, nor shall the nursing staff of the geriatric
21 outpatient clinic be counted as part of the nursing staff of
22 the facility, until the outpatient clinic load exceeds 15 a
23 day.
24
25 Facilities that have been awarded a Gold Seal under the
26 program established in s. 400.235 may develop a plan to
27 provide certified nursing assistant training as prescribed by
28 federal regulations and state rules and may apply to the
29 agency for approval of its program.
30 Section 58. Paragraph (a) of subsection (3) and
31 subsection (4) of section 400.235, Florida Statutes, as
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 amended by section 12 of chapter 2000-305 and section 7 of
2 chapter 2000-350, Laws of Florida, and subsection (9) of
3 section 400.235, Florida Statutes, as created by section 7 of
4 chapter 2000-350, Laws of Florida, are reenacted to read:
5 400.235 Nursing home quality and licensure status;
6 Gold Seal Program.--
7 (3)(a) The Gold Seal Program shall be developed and
8 implemented by the Governor's Panel on Excellence in Long-Term
9 Care which shall operate under the authority of the Executive
10 Office of the Governor. The panel shall be composed of three
11 persons appointed by the Governor, to include a consumer
12 advocate for senior citizens and two persons with expertise in
13 the fields of quality management, service delivery excellence,
14 or public sector accountability; three persons appointed by
15 the Secretary of Elderly Affairs, to include an active member
16 of a nursing facility family and resident care council and a
17 member of the University Consortium on Aging; the State
18 Long-Term Care Ombudsman; one person appointed by the Florida
19 Life Care Residents Association; one person appointed by the
20 Secretary of Health; two persons appointed by the Secretary of
21 Health Care Administration; one person appointed by the
22 Florida Association of Homes for the Aging; and one person
23 appointed by the Florida Health Care Association. Vacancies on
24 the panel shall be filled in the same manner as the original
25 appointments.
26 (4) The panel shall consider the quality of care
27 provided to residents when evaluating a facility for the Gold
28 Seal Program. The panel shall determine the procedure or
29 procedures for measuring the quality of care.
30 (9) The agency may adopt rules as necessary to
31 administer this section.
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Amendment No. ___ (for drafter's use only)
1 Section 59. Subsection (1) of section 400.962, Florida
2 Statutes, as amended by section 8 of chapter 2000-350, Laws of
3 Florida, is reenacted to read:
4 400.962 License required; license application.--
5 (1) It is unlawful to operate an intermediate care
6 facility for the developmentally disabled without a license.
7 Section 60. Section 10 of chapter 2000-350, Laws of
8 Florida, is reenacted to read:
9 Section 10. The Board of Pharmacy, in cooperation with
10 the Agency for Health Care Administration, shall undertake a
11 study of the feasibility, efficiency, cost-effectiveness, and
12 safety of using automated medication dispensing machines in
13 nursing facilities. The board and the agency may authorize the
14 establishment of demonstration projects in up to five nursing
15 facilities with a class I institutional pharmacy as part of
16 the study. Demonstration projects may be allowed to continue
17 for up to 12 months. A report summarizing the results of the
18 study shall be submitted by the board and the agency to the
19 Speaker of the House of Representatives and the President of
20 the Senate by January 1, 2001. If the study determines that
21 such dispensing machines would benefit residents of nursing
22 facilities and should be allowed, the report shall identify
23 those specific statutory changes necessary to allow nursing
24 facilities to use automated medication dispensing machines.
25 Section 61. Paragraph (g) is added to subsection (1)
26 of section 400.562, Florida Statutes, to read:
27 400.562 Rules establishing standards.--
28 (1) The Department of Elderly Affairs, in conjunction
29 with the agency, shall adopt rules to implement the provisions
30 of this part. The rules must include reasonable and fair
31 standards. Any conflict between these standards and those that
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Amendment No. ___ (for drafter's use only)
1 may be set forth in local, county, or municipal ordinances
2 shall be resolved in favor of those having statewide effect.
3 Such standards must relate to:
4 (g) Components of a comprehensive emergency management
5 plan, developed in consultation with the Department of Health,
6 the Agency for Health Care Administration, and the Department
7 of Community Affairs.
8 Section 62. Notwithstanding any other provision of
9 this act to the contrary, sections 400.0237, 400.0238,
10 400.4297, 400.4298, Florida Statutes, as created by this act,
11 and section 768.735, Florida Statutes, as amended by this act,
12 shall become effective May 15, 2001; shall apply to causes of
13 action accruing on or after May 15, 2001; and shall be applied
14 retroactively to causes of action accruing before May 15,
15 2001, for which no case has been filed prior to October 5,
16 2001.
17 Section 63. The Agency for Health Care Administration
18 shall develop by October 31, 2001, a standard chart of
19 accounts to govern the content and manner of presentation of
20 financial information to be submitted by Medicaid long-term
21 care providers in their cost reports. The Auditor General
22 shall approve the standard chart of accounts developed by the
23 Agency for Health Care Administration not later than December
24 31, 2001. The agency shall amend the Florida Title XIX
25 Long-Term Care Reimbursement Plan to incorporate this standard
26 chart of accounts and shall implement use of this standard
27 chart of accounts effective for cost reports filed for the
28 periods ending on or after December 31, 2002. The standard
29 chart of accounts shall include specific accounts for each
30 component of direct care staff by type of personnel and may
31 not be revised without the written consent of the Auditor
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Amendment No. ___ (for drafter's use only)
1 General.
2 Section 64. The Agency for Health Care Administration
3 shall amend the Medicaid Title XIX Long-Term Care
4 Reimbursement Plan effective December 31, 2001, to include the
5 following provisions:
6 (1) Effective with nursing facility cost reports filed
7 for periods ending on or after December 31, 2002, the cost
8 report shall contain detailed information on the salary,
9 benefits, agency, and overtime costs and corresponding hours
10 for direct care staffing for registered nurses, licensed
11 practical nurses, and certified nursing assistants.
12 (2) Effective for cost reports filed for periods
13 ending on or after December 31, 2003, the cost reports shall
14 be submitted electronically in a format and manner prescribed
15 by the agency.
16 Section 65. The Office of State Long-Term Care
17 Ombudsman shall be responsible for the cost of leasing its own
18 office space, but shall not be colocated with the headquarters
19 office of the Department of Elderly Affairs.
20 Section 66. The sum of $5,602,460 is appropriated from
21 the Health Care Trust Fund to the Agency for Health Care
22 Administration and 79 positions are authorized for the purpose
23 of implementing the provisions of this act during the
24 2001-2002 fiscal year.
25 Section 67. The sum of $948,782 is appropriated from
26 the General Revenue Fund to the Department of Elderly Affairs
27 for the purpose of paying the salaries and other
28 administrative expenses of the Office of State Long-Term Care
29 Ombudsman to carry out the provisions of this act during the
30 2001-2002 fiscal year.
31 Section 68. If any provision of this act or its
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 application to any person or circumstance is held invalid, the
2 invalidity does not affect other provisions or applications of
3 the act which can be given effect without the invalid
4 provision or application, and to this end the provisions of
5 this act are severable.
6 Section 69. Except as otherwise expressly provided in
7 this act, this act shall take effect upon becoming a law.
8
9
10 ================ T I T L E A M E N D M E N T ===============
11 And the title is amended as follows:
12 remove from the title of the bill: the entire title
13
14 and insert in lieu thereof:
15 A bill to be entitled
16 An act relating to long-term care; amending s.
17 400.0073, F.S.; clarifying duties of the local
18 ombudsman councils with respect to inspections
19 of nursing homes and long-term care facilities;
20 amending s. 400.021, F.S.; defining the terms
21 "controlling interest" and "voluntary board
22 member" and revising the definition of
23 "resident care plan" for purposes of part II of
24 ch. 400, F.S., relating to the regulation of
25 nursing homes; requiring the Agency for Health
26 Care Administration and the Office of the
27 Attorney General to study the use of electronic
28 monitoring devices in nursing homes; requiring
29 a report; amending s. 400.023, F.S.; providing
30 for election of survival damages, wrongful
31 death damages, or recovery for negligence;
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 providing for attorney's fees for injunctive
2 relief or administrative remedy; providing that
3 ch. 766, F.S., does not apply to actions under
4 this section; providing burden of proof;
5 providing that a violation of a right is not
6 negligence per se; prescribing the duty of
7 care; prescribing a nurse's duty of care;
8 eliminating presuit provisions; eliminating the
9 requirement for presuit mediation; creating s.
10 400.0233, F.S; providing for presuit notice;
11 prohibiting the filing of suit for a specified
12 time; requiring a response to the notice;
13 tolling the statute of limitations; limiting
14 discovery of presuit investigation documents;
15 limiting liability of presuit investigation
16 participants; authorizing the obtaining of
17 opinions from a nurse or doctor; authorizing
18 the obtaining of unsworn statements;
19 authorizing discovery of relevant documents;
20 prescribing the time for acceptance of
21 settlement offers; requiring mediation;
22 prescribing the time to file suit; creating s.
23 400.0234, F.S.; requiring the availability of
24 facility records for presuit investigation;
25 specifying the records to be made available;
26 specifying what constitutes evidence of failure
27 to make records available in good faith;
28 specifying the consequences of such failure;
29 creating s. 400.0235, F.S.; providing that the
30 provisions of s. 768.21(8), F.S., do not apply
31 to actions under part II of ch. 400, F.S.;
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 creating s. 400.0236, F.S.; providing a statute
2 of limitations; providing a statute of
3 limitations when there is fraudulent
4 concealment or intentional misrepresentation of
5 fact; providing for application of the statute
6 of limitation to accrued actions; creating s.
7 400.0237, F.S.; requiring evidence of the basis
8 for punitive damages; prohibiting discovery
9 relating to financial worth; providing for
10 proof of punitive damages; defining the terms
11 "intentional misconduct" and "gross
12 negligence"; prescribing criteria governing
13 employers' liability for punitive damages;
14 providing for the remedial nature of
15 provisions; creating s. 400.0238, F.S.;
16 prescribing limits on the amount of punitive
17 damages; providing for a criminal investigation
18 with a finding of liability for punitive
19 damages under certain circumstances; providing
20 for the admissibility of findings in subsequent
21 civil and criminal actions; providing for the
22 calculation of attorney's fees; providing for a
23 division of punitive damages; amending s.
24 768.735, F.S.; providing that the section is
25 inapplicable to actions brought under ch. 400,
26 F.S.; amending s. 415.1111, F.S.; limiting
27 actions against nursing homes and assisted
28 living facilities; amending s. 400.0255, F.S.;
29 providing for applicability of provisions
30 relating to transfer or discharge of nursing
31 home residents; amending s. 400.062, F.S.;
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 increasing the bed license fee for nursing home
2 facilities; amending s. 400.071, F.S.; revising
3 license application requirements; requiring
4 certain disclosures; authorizing the Agency for
5 Health Care Administration to issue an inactive
6 license; requiring quality assurance and
7 risk-management plans; amending s. 400.102,
8 F.S.; providing additional grounds for action
9 by the agency against a licensee; amending s.
10 400.111, F.S.; prohibiting renewal of a license
11 if an applicant has failed to pay certain
12 fines; requiring licensees to disclose
13 financial or ownership interests in certain
14 entities; authorizing placing fines in escrow;
15 amending s. 400.118, F.S.; revising duties of
16 quality-of-care monitors in nursing facilities;
17 creating s. 400.1183, F.S.; providing for
18 resident grievance procedures; amending s.
19 400.121, F.S.; specifying additional
20 circumstances under which the agency may deny,
21 revoke, or suspend a facility's license or
22 impose a fine; authorizing placing fines in
23 escrow; requiring that the agency revoke or
24 deny a nursing home license under specified
25 circumstances; providing standards for
26 administrative proceedings; providing for the
27 agency to assess the costs of an investigation
28 and prosecution; specifying facts and
29 conditions upon which administrative actions
30 that are challenged must be reviewed; amending
31 s. 400.126, F.S.; requiring an assessment of
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705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 residents in nursing homes under receivership;
2 providing for alternative care for qualified
3 residents; amending s. 400.141, F.S.; providing
4 additional administrative and management
5 requirements for licensed nursing home
6 facilities; requiring a facility to submit
7 information on staff-to-resident ratios, staff
8 turnover, and staff stability; requiring that
9 certain residents be examined by a licensed
10 physician; providing requirements for dining
11 and hospitality attendants; requiring
12 additional reports to the agency; requiring
13 minimum amounts of liability insurance
14 coverage; requiring daily charting of specified
15 certified nursing assistant services; creating
16 s. 400.1413, F.S.; authorizing nursing homes to
17 impose certain requirements on volunteers;
18 creating s. 400.147, F.S.; requiring each
19 licensed nursing home facility to establish an
20 internal risk management and quality assurance
21 program; providing requirements of the program;
22 requiring the use of incident reports; defining
23 the term "adverse incident"; requiring that the
24 agency be notified of adverse incidents;
25 requiring reporting of liability claims;
26 specifying duties of the internal risk manager;
27 requiring the reporting of sexual abuse;
28 limiting the liability of a risk manager;
29 requiring that the agency report certain
30 conduct to the appropriate regulatory board;
31 requiring that the agency annually report to
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 the Legislature on the internal risk management
2 of nursing homes; creating s. 400.148, F.S.;
3 providing for a pilot project to coordinate
4 resident quality of care; providing
5 requirements; providing for penalties;
6 requiring annual reports; amending s. 400.19,
7 F.S.; requiring the agency to conduct surveys
8 of certain facilities cited for deficiencies;
9 providing for a survey fine; providing for
10 inspections; amending s. 400.191, F.S.;
11 requiring the agency to publish a Nursing Home
12 Guide Watch List; specifying contents of the
13 watch list; specifying distribution of the
14 watch list; requiring that nursing homes post
15 certain additional information; amending s.
16 400.211, F.S.; revising employment requirements
17 for nursing assistants; requiring inservice
18 training; amending s. 400.23, F.S.; revising
19 minimum staffing requirements for nursing
20 homes; requiring the documentation and posting
21 of compliance with such standards; requiring
22 correction of deficiencies prior to change in
23 conditional status; providing definitions of
24 deficiencies; adjusting the fines imposed for
25 certain deficiencies; amending s. 400.235,
26 F.S.; revising requirements for the Gold Seal
27 Program; creating s. 400.275, F.S.; providing
28 for training of nursing home survey teams;
29 amending s. 400.407, F.S.; revising certain
30 licensing requirements; providing for the
31 biennial license fee to be based on number of
134
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 beds; amending s. 400.414, F.S.; specifying
2 additional circumstances under which the Agency
3 for Health Care Administration may deny,
4 revoke, or suspend a license; providing for
5 issuance of a temporary license; amending s.
6 400.419, F.S.; increasing the fines imposed for
7 certain violations; creating s. 400.423, F.S.;
8 requiring certain assisted living facilities to
9 establish an internal risk management and
10 quality assurance program; providing
11 requirements of the program; requiring the use
12 of incident reports; defining the term "adverse
13 incident"; requiring that the agency be
14 notified of adverse incidents and of liability
15 claims; requiring reporting of liability
16 claims; specifying duties of the internal risk
17 manager; requiring that the agency report
18 certain conduct to the appropriate regulatory
19 board; requiring that the agency annually
20 report to the Legislature on the internal risk
21 management of assisted living facilities;
22 amending s. 400.426, F.S.; requiring that
23 certain residents be examined by a licensed
24 physician; amending s. 400.428, F.S.; revising
25 requirement for notice of a resident's
26 relocation or termination from a facility;
27 providing a penalty; amending s. 400.429, F.S.;
28 providing for election of survival damages,
29 wrongful death damages, or recovery for
30 negligence; providing for attorney's fees for
31 injunctive relief or administrative remedy;
135
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 providing that ch. 766, F.S., does not apply to
2 actions under this section; prescribing the
3 burden of proof; providing that a violation of
4 a right is not negligence per se; prescribing
5 the duty of care; prescribing a nurse's duty of
6 care; eliminating presuit provisions;
7 eliminating the requirement for presuit
8 mediation; requiring copies of complaints filed
9 in court to be provided to the agency; creating
10 s. 400.4293, F.S; providing for presuit notice;
11 prohibiting the filing of suit for a specified
12 time; requiring a response to the notice;
13 tolling the statute of limitations; limiting
14 the discovery of presuit investigation
15 documents; limiting liability of presuit
16 investigation participants; authorizing the
17 obtaining of opinions from a nurse or doctor;
18 authorizing the obtaining of unsworn
19 statements; authorizing discovery of relevant
20 documents; prescribing a time for acceptance of
21 settlement offers; requiring mediation;
22 prescribing the time to file suit; creating s.
23 400.4294, F.S.; requiring the availability of
24 facility records for presuit investigation;
25 specifying the records to be made available;
26 specifying what constitutes evidence of failure
27 to make records available in good faith;
28 specifying the consequences of such failure;
29 creating s. 400.4295, F.S.; providing that the
30 provisions of s. 768.21(8), F.S., do not apply
31 to actions under part III of ch. 400, F.S.;
136
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 creating s. 400.4296, F.S.; providing a statute
2 of limitations; providing a statute of
3 limitations when there is fraudulent
4 concealment or intentional misrepresentation of
5 fact; providing for application of the statute
6 of limitation to accrued actions; creating s.
7 400.4297, F.S.; requiring evidence of the basis
8 for punitive damages; prohibiting discovery
9 relating to financial worth; providing for
10 proof of punitive damages; defining the terms
11 "intentional misconduct" and "gross
12 negligence"; prescribing criteria governing
13 employers' liability for punitive damages;
14 providing for the remedial nature of
15 provisions; creating s. 400.4298, F.S.;
16 providing limits on the amount of punitive
17 damages; providing for a criminal investigation
18 with a finding of liability for punitive
19 damages under certain circumstances; providing
20 for the admissibility of findings in subsequent
21 civil and criminal actions; providing for the
22 calculation of attorney's fees; providing for a
23 division of punitive damages; amending s.
24 400.434, F.S.; authorizing the Agency for
25 Health Care Administration to use information
26 obtained by certain councils; amending s.
27 400.441, F.S.; clarifying facility inspection
28 requirements; creating s. 400.449, F.S.;
29 prohibiting the alteration or falsification of
30 medical or other records of an assisted living
31 facility; providing penalties; amending s.
137
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 409.908, F.S.; prohibiting nursing home
2 reimbursement rate increases associated with
3 changes in ownership; modifying requirements
4 for nursing home cost reporting; requiring a
5 report; amending s. 430.709, F.S.; providing
6 requirements for contracts for independent
7 evaluation of long-term care community
8 diversion projects; transferring responsibility
9 from the Department of Elderly Affairs to the
10 agency; requiring reports to the agency and
11 Legislature; amending s. 464.203, F.S.;
12 revising certification requirements for nursing
13 assistants; authorizing employment of certain
14 nursing assistants pending certification;
15 requiring continuing education; amending s.
16 397.405, F.S., relating to service providers;
17 conforming provisions to changes made by the
18 act; prohibiting the issuance of a certificate
19 of need for additional community nursing home
20 beds; providing intent for such prohibition;
21 providing an exemption; reenacting s.
22 400.0255(3) and (8), F.S., relating to
23 discharge or transfer of residents; reenacting
24 s. 400.23(5), F.S., relating to rules for
25 standards of care for persons under a specified
26 age residing in nursing home facilities;
27 reenacting s. 400.191(2) and (6), F.S.,
28 relating to requirements for providing
29 information to consumers; reenacting s.
30 400.0225, F.S., relating to consumer
31 satisfaction surveys for nursing homes;
138
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HOUSE AMENDMENT
705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng.
Amendment No. ___ (for drafter's use only)
1 reenacting s. 400.141(4) and (5), F.S.,
2 relating to the repackaging of residents'
3 medication and access to other health-related
4 services; reenacting s. 400.235(3)(a), (4), and
5 (9), F.S., relating to designation under the
6 nursing home Gold Seal Program; reenacting s.
7 400.962(1), F.S., relating to the requirement
8 for licensure under pt. IX of ch. 400, F.S.;
9 reenacting s. 10 of ch. 2000-350, Laws of
10 Florida, relating to requirements for a study
11 of the use of automated medication-dispensing
12 machines in nursing facilities and for
13 demonstration projects and a report; amending
14 s. 400.562, F.S.; revising requirements for
15 standards to be included in rules implementing
16 part V of ch. 400, F.S.; providing for
17 applicability of specified provisions of the
18 act; requiring the Auditor General to develop a
19 standard chart of accounts for Medicaid
20 long-term care provider cost reporting;
21 requiring implementation by the agency by a
22 specified date; requiring the agency to amend
23 the Medicaid Title XIX Long-Term Care
24 Reimbursement Plan to include specified
25 provisions; providing for office space for the
26 Office of State Long-Term Care Ombudsman;
27 providing appropriations; providing for
28 severability; providing effective dates.
29
30
31
139
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