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
                                   .                    
                                   .                    
 1                                 .                    
                                   .                    
 2                                 .                    
                                   .                    
 3                                 .                    
                                   .                    
 4  ______________________________________________________________
 5                                           ORIGINAL STAMP BELOW
 6  
 7  
 8  
 9  
10  ______________________________________________________________
11  Representative(s) Green offered the following:
12  
13         Amendment (with title amendment) 
14  Remove from the bill:  Everything after the enacting clause
15  
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
    File original & 9 copies    04/30/01                          
    hbd0002                     05:04 pm         01202-0075-341895

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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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) 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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 (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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 34 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 35 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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. 36 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 37 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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: 38 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
HOUSE AMENDMENT 705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng. Amendment No. ___ (for drafter's use only) 1 400.126 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 39 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 40 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 41 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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.-- 42 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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) 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 43 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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. 44 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 (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 45 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 46 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 47 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 48 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 49 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 50 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 51 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 52 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 53 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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. 54 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 55 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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, 56 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 57 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 58 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 59 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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. 60 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 61 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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, 62 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 63 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 64 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 65 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 66 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 67 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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. 68 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 69 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 70 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 71 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 72 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 73 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 74 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 75 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 76 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 77 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 78 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 79 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 80 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 81 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 82 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 83 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 84 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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.-- 85 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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) 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. 86 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
HOUSE AMENDMENT 705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng. Amendment No. ___ (for drafter's use only) 1 768.79 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 87 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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, 88 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 89 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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.-- 90 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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) 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 91 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 92 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 93 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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, 94 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 95 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
HOUSE AMENDMENT 705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng. Amendment No. ___ (for drafter's use only) 1 400.4295, 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 96 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 97 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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), 98 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 99 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 100 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 101 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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. 102 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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; 103 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 104 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 105 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 106 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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. 107 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 108 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 109 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 110 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 111 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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. 112 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
HOUSE AMENDMENT 705-158AXA-08 Bill No. CS for CS for CS for SB 1202, 2nd Eng. Amendment No. ___ (for drafter's use only) 1 400.215 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 113 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 114 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 115 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 116 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 117 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 118 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 119 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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. 120 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 121 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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. 122 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 123 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 124 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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. 125 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 126 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 127 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 128 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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; 129 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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.; 130 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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. 400.0236, 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.; 131 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 132 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 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 133 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895
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 File original & 9 copies 04/30/01 hbd0002 05:04 pm 01202-0075-341895