Senate Bill sb1202c1
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Florida Senate - 2001 CS for SB 1202
By the Committee on Health, Aging and Long-Term Care; and
Senator Brown-Waite
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1 A bill to be entitled
2 An act relating to long-term care; amending s.
3 400.0073, F.S.; clarifying duties of the local
4 ombudsman councils with respect to inspections
5 of nursing homes and long-term-care facilities;
6 amending s. 400.021, F.S.; defining the terms
7 "controlling interest" and "voluntary board
8 member" and revising the definition of
9 "resident care plan" for purposes of part II of
10 ch. 400, F.S., relating to the regulation of
11 nursing homes; creating s. 400.0223, F.S.;
12 requiring a nursing home facility to permit
13 electronic monitoring devices in a resident's
14 room; specifying conditions under which
15 monitoring may occur; providing that electronic
16 monitoring tapes are admissible in civil or
17 criminal actions; providing penalties; creating
18 s. 400.0247, F.S.; requiring that copies of
19 certain documents be forwarded to the state
20 attorney if punitive damages are awarded;
21 amending s. 400.0255, F.S.; providing for
22 applicability of provisions relating to
23 transfer or discharge of nursing home
24 residents; amending s. 400.062, F.S.;
25 increasing the bed license fee for nursing home
26 facilities; amending s. 400.071, F.S.; revising
27 license application requirements; requiring
28 certain disclosures; authorizing the Agency for
29 Health Care Administration to issue an inactive
30 license; requiring quality assurance and
31 risk-management plans; amending s. 400.111,
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1 F.S.; prohibiting renewal of a license if an
2 applicant has failed to pay certain fines;
3 amending s. 400.118, F.S.; revising duties of
4 quality-of-care monitors in nursing facilities;
5 amending s. 400.121, F.S.; specifying
6 additional circumstances under which the agency
7 may deny, revoke, or suspend a facility's
8 license or impose a fine; specifying facts and
9 conditions upon which administrative actions
10 that are challenged must be reviewed; amending
11 s. 400.141, F.S.; providing additional
12 administrative and management requirements for
13 licensed nursing home facilities; requiring a
14 facility to submit information on
15 staff-to-resident ratios, staff turnover, and
16 staff stability; requiring that certain
17 residents be examined by a licensed physician;
18 providing requirements for dining and
19 hospitality attendants; requiring additional
20 reports to the agency; creating s. 400.147,
21 F.S.; requiring each licensed nursing home
22 facility to establish an internal risk
23 management and quality assurance program;
24 providing requirements of the program;
25 requiring the use of incident reports; defining
26 the term "adverse incident"; requiring that the
27 agency be notified of adverse incidents;
28 requiring reporting of liability claims;
29 specifying duties of the internal risk manager;
30 requiring the reporting of sexual abuse;
31 requiring that the Agency for Health Care
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1 Administration review a facility's internal
2 risk management and quality assurance program;
3 limiting the liability of a risk manager;
4 requiring that the agency report certain
5 conduct to the appropriate regulatory board;
6 requiring that the agency annually report to
7 the Legislature on the internal risk management
8 of nursing homes; creating s. 400.1755, F.S.;
9 prescribing training standards for employees of
10 nursing homes that provide care for persons
11 with Alzheimer's disease or related disorders;
12 prescribing duties of the Department of Elderly
13 Affairs; amending s. 400.191, F.S.; requiring
14 the agency to publish a Nursing Home Guide
15 Watch List; specifying contents of the watch
16 list; specifying distribution of the watch
17 list; requiring that nursing homes post certain
18 additional information; amending s. 400.211,
19 F.S.; revising employment requirements for
20 nursing assistants; requiring in-service
21 training; amending s. 400.23, F.S.; revising
22 minimum staffing requirements for nursing
23 homes; requiring the documentation and posting
24 of compliance with such standards; increasing
25 the fines imposed for certain deficiencies;
26 amending s. 400.235, F.S.; revising
27 requirements for the Gold Seal Program;
28 creating s. 400.237, F.S.; providing
29 legislative intent regarding improvements in
30 quality in nursing home facilities; requiring
31 the Agency for Health Care Administration to
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1 develop and implement a system for grading
2 nursing homes; specifying areas that must be
3 evaluated by the grading system; requiring
4 ranking of nursing homes according to their
5 grading score; requiring the agency to identify
6 improvement in nursing home performance;
7 requiring the agency to reevaluate standards
8 periodically and raise the standards to reflect
9 improvements in nursing-home grading scores;
10 requiring the agency to convene a workgroup;
11 specifying the membership of the workgroup;
12 requiring nursing homes to post their rankings
13 and improvement ratings; requiring the agency
14 to publish the rankings and improvement
15 ratings; authorizing the agency to adopt rules;
16 creating s. 400.275, F.S.; providing for
17 training of nursing-home survey teams; amending
18 s. 400.402, F.S.; revising definitions
19 applicable to part III of ch. 400, F.S.,
20 relating to the regulation of assisted living
21 facilities; amending s. 400.407, F.S.; revising
22 certain licensing requirements; providing a bed
23 fee for licensed facilities in lieu of the
24 biennial license fee; amending s. 400.414,
25 F.S.; specifying additional circumstances under
26 which the Agency for Health Care Administration
27 may deny, revoke, or suspend a license;
28 providing for issuance of a temporary license;
29 amending s. 400.417, F.S.; revising
30 requirements for license renewal; amending s.
31 400.419, F.S.; increasing the fines imposed for
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1 certain violations; creating s. 400.423, F.S.;
2 requiring certain assisted living facilities to
3 establish an internal risk management and
4 quality assurance program; providing
5 requirements of the program; requiring the use
6 of incident reports; defining the term "adverse
7 incident"; requiring that the agency be
8 notified of adverse incidents; requiring
9 reporting of liability claims; specifying
10 duties of the internal risk manager; requiring
11 the reporting of sexual abuse; requiring that
12 the Agency for Health Care Administration
13 review a facility's internal risk management
14 and quality assurance program; limiting the
15 liability of a risk manager; requiring that the
16 agency report certain conduct to the
17 appropriate regulatory board; requiring that
18 the agency annually report to the Legislature
19 on the internal risk management of assisted
20 living facilities; amending s. 400.426, F.S.;
21 requiring that certain residents be examined by
22 a licensed physician; amending s. 400.428,
23 F.S.; revising requirements for the survey
24 conducted of licensed facilities by the agency;
25 creating s. 400.4303, F.S.; requiring that
26 copies of certain documents be forwarded to the
27 state attorney if punitive damages are awarded;
28 amending s. 400.435, F.S., relating to
29 maintenance of records; conforming provisions
30 to changes made by the act; amending s.
31 400.441, F.S.; clarifying facility inspection
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1 requirements; amending s. 400.442, F.S.,
2 relating to pharmacy and dietary services;
3 conforming provisions to changes made by the
4 act; creating s. 400.449, F.S.; prohibiting the
5 alteration or falsification of medical or other
6 records of an assisted living facility;
7 providing penalties; amending s. 464.201, F.S.;
8 authorizing an additional training program for
9 certified nursing assistants; amending s.
10 464.203, F.S.; revising certification
11 requirements for nursing assistants;
12 authorizing employment of certain nursing
13 assistants pending certification; requiring
14 continuing education; amending s. 397.405,
15 F.S., relating to service providers; conforming
16 provisions to changes made by the act;
17 requiring wage and benefit increases; requiring
18 a report; providing appropriations; providing
19 for severability; providing effective dates.
20
21 Be It Enacted by the Legislature of the State of Florida:
22
23 Section 1. Subsection (4) of section 400.0073, Florida
24 Statutes, is amended to read:
25 400.0073 State and local ombudsman council
26 investigations.--
27 (4) In addition to any specific investigation made
28 pursuant to a complaint, the local ombudsman council shall
29 conduct, at least annually, an investigation, which shall
30 consist, in part, of an onsite administrative inspection, of
31 each nursing home or long-term care facility within its
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1 jurisdiction. This inspection shall focus on the rights,
2 health, safety, and welfare of the residents.
3 Section 2. Section 400.021, Florida Statutes, is
4 amended to read:
5 400.021 Definitions.--When used in this part, unless
6 the context otherwise requires, the term:
7 (1) "Administrator" means the licensed individual who
8 has the general administrative charge of a facility.
9 (2) "Agency" means the Agency for Health Care
10 Administration, which is the licensing agency under this part.
11 (3) "Bed reservation policy" means the number of
12 consecutive days and the number of days per year that a
13 resident may leave the nursing home facility for overnight
14 therapeutic visits with family or friends or for
15 hospitalization for an acute condition before the licensee may
16 discharge the resident due to his or her absence from the
17 facility.
18 (4) "Board" means the Board of Nursing Home
19 Administrators.
20 (5) "Controlling interest" means:
21 (a) The applicant for licensure or a licensee;
22 (b) A person or entity that serves as an officer of,
23 is on the board of directors of, or has a 5 percent or greater
24 ownership interest in the management company or other entity,
25 related or unrelated, which the applicant or licensee may
26 contract with to operate the facility; or
27 (c) A person or entity that serves as an officer of,
28 is on the board of directors of, or has a 5 percent or greater
29 ownership interest in the applicant or licensee.
30
31 The term does not include a voluntary board member.
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1 (6)(5) "Custodial service" means care for a person
2 which entails observation of diet and sleeping habits and
3 maintenance of a watchfulness over the general health, safety,
4 and well-being of the aged or infirm.
5 (7)(6) "Department" means the Department of Children
6 and Family Services.
7 (8)(7) "Facility" means any institution, building,
8 residence, private home, or other place, whether operated for
9 profit or not, including a place operated by a county or
10 municipality, which undertakes through its ownership or
11 management to provide for a period exceeding 24-hour nursing
12 care, personal care, or custodial care for three or more
13 persons not related to the owner or manager by blood or
14 marriage, who by reason of illness, physical infirmity, or
15 advanced age require such services, but does not include any
16 place providing care and treatment primarily for the acutely
17 ill. A facility offering services for fewer than three persons
18 is within the meaning of this definition if it holds itself
19 out to the public to be an establishment which regularly
20 provides such services.
21 (9)(8) "Geriatric outpatient clinic" means a site for
22 providing outpatient health care to persons 60 years of age or
23 older, which is staffed by a registered nurse or a physician
24 assistant.
25 (10)(9) "Geriatric patient" means any patient who is
26 60 years of age or older.
27 (11)(10) "Local ombudsman council" means a local
28 long-term care ombudsman council established pursuant to s.
29 400.0069, located within the Older Americans Act planning and
30 service areas.
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1 (12)(11) "Nursing home bed" means an accommodation
2 which is ready for immediate occupancy, or is capable of being
3 made ready for occupancy within 48 hours, excluding provision
4 of staffing; and which conforms to minimum space requirements,
5 including the availability of appropriate equipment and
6 furnishings within the 48 hours, as specified by rule of the
7 agency, for the provision of services specified in this part
8 to a single resident.
9 (13)(12) "Nursing home facility" means any facility
10 which provides nursing services as defined in part I of
11 chapter 464 and which is licensed according to this part.
12 (14)(13) "Nursing service" means such services or acts
13 as may be rendered, directly or indirectly, to and in behalf
14 of a person by individuals as defined in s. 464.003.
15 (15)(14) "Planning and service area" means the
16 geographic area in which the Older Americans Act programs are
17 administered and services are delivered by the Department of
18 Elderly Affairs.
19 (16)(15) "Respite care" means admission to a nursing
20 home for the purpose of providing a short period of rest or
21 relief or emergency alternative care for the primary caregiver
22 of an individual receiving care at home who, without
23 home-based care, would otherwise require institutional care.
24 (17)(16) "Resident care plan" means a written plan
25 developed, maintained, and reviewed not less than quarterly by
26 a registered nurse, with participation from other facility
27 staff and the resident or his or her designee or legal
28 representative, which includes a comprehensive assessment of
29 the needs of an individual resident, the type and frequency of
30 services required to provide the necessary care for the
31 resident to attain or maintain the highest practicable
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1 physical, mental, and psychosocial well-being, a listing of
2 services provided within or outside the facility to meet those
3 needs, and an explanation of service goals. The resident care
4 plan must be signed by the director of nursing and the
5 resident, the resident's designee, or the resident's legal
6 representative.
7 (18)(17) "Resident designee" means a person, other
8 than the owner, administrator, or employee of the facility,
9 designated in writing by a resident or a resident's guardian,
10 if the resident is adjudicated incompetent, to be the
11 resident's representative for a specific, limited purpose.
12 (19)(18) "State ombudsman council" means the State
13 Long-Term Care Ombudsman Council established pursuant to s.
14 400.0067.
15 (20) "Voluntary board member" means a director of a
16 not-for-profit corporation or organization who serves solely
17 in a voluntary capacity for the corporation or organization,
18 does not receive any remuneration for his or her services on
19 the board of directors, and has no financial interest in the
20 corporation or organization. The agency shall recognize a
21 person as a voluntary board member following submission of a
22 statement to the agency by the director and the not-for-profit
23 corporation or organization which affirms that the director
24 conforms to this definition. The statement affirming the
25 status of the director must be submitted to the agency on a
26 form provided by the agency.
27 Section 3. Section 400.0223, Florida Statutes, is
28 created to read:
29 400.0223 Resident's right to have electronic
30 monitoring devices in room; requirements, penalties.--
31
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1 (1) A nursing home facility shall permit a resident or
2 legal representative of the resident to monitor the resident
3 through the use of electronic monitoring devices. For the
4 purposes of this section the term "electronic monitoring
5 device" includes a video surveillance camera, an audio device,
6 a video telephone, and an internet video surveillance device.
7 (2) A nursing home facility shall require a resident
8 who engages in electronic monitoring to post a notice on the
9 door of the resident's room. The notice must state that the
10 room is being monitored by an electronic monitoring device.
11 (3) Monitoring conducted under this section must:
12 (a) Be noncompulsory and at the election of the
13 resident or legal representative of the resident;
14 (b) Be funded by the resident or legal representative
15 of the resident; and
16 (c) Protect the privacy rights of other residents and
17 visitors to the nursing home facility to the extent reasonably
18 possible.
19 (4) A nursing home facility may not refuse to admit an
20 individual to residency in the facility or remove a resident
21 from the facility because of a request for electronic
22 monitoring.
23 (5) A nursing home facility shall make reasonable
24 physical accommodation for electronic monitoring, by
25 providing:
26 (a) A reasonably secure place to mount the electronic
27 monitoring device; and
28 (b) Access to power sources.
29 (6) A nursing home facility shall inform a resident or
30 the legal representative of the resident of the resident's
31 right to electronic monitoring.
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1 (7) A nursing home facility may request a resident or
2 a resident's personal representative to conduct electronic
3 monitoring within plain view.
4 (8) A resident who wishes to install an electronic
5 monitoring device may be required by the administrator of the
6 nursing home facility to make the request in writing.
7 (9) Subject to the Florida Rules of Evidence, a tape
8 created through the use of electronic monitoring is admissible
9 in either a civil or criminal action brought in a Florida
10 court.
11 (10)(a) A licensee who operates a nursing home
12 facility in violation of this section is subject to a fine not
13 exceeding $500 per violation per day under ss. 400.102 and
14 400.121.
15 (b) A person who willfully and without the consent of
16 the resident hampers, obstructs, tampers with, or destroys an
17 electronic monitoring device or tape shall be guilty of a
18 misdemeanor of the first degree punishable as provided in s.
19 775.082 or s. 775.083.
20 Section 4. Effective October 1, 2001, and applicable
21 to causes of action accruing on or after that date, section
22 400.0247, Florida Statutes, is created to read:
23 400.0247 Copies forwarded to state attorney.--In any
24 action in which punitive damages are awarded, notwithstanding
25 any appeals, the Clerk of the Court shall forward to the state
26 attorney of that circuit a copy of the complaint, any amended
27 complaints, the verdict form, and the final judgment.
28 Section 5. Subsection (17) is added to section
29 400.0255, Florida Statutes, to read:
30 400.0255 Resident transfer or discharge; requirements
31 and procedures; hearings.--
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1 (17) The provisions of this section apply to transfers
2 or discharges that are initiated by the nursing home facility,
3 and not by the resident or by the resident's physician or
4 legal guardian or representative.
5 Section 6. Subsection (3) of section 400.062, Florida
6 Statutes, is amended to read:
7 400.062 License required; fee; disposition; display;
8 transfer.--
9 (3) The annual license fee required for each license
10 issued under this part shall be comprised of two parts. Part
11 I of the license fee shall be the basic license fee. The rate
12 per bed for the basic license fee shall be established
13 annually and must be reasonably calculated to cover the cost
14 of regulation under this part, but may not exceed $50 $35 per
15 bed. Part II of the license fee shall be the resident
16 protection fee, which shall be at the rate of not less than 25
17 cents per bed. The rate per bed shall be the minimum rate per
18 bed, and such rate shall remain in effect until the effective
19 date of a rate per bed adopted by rule by the agency pursuant
20 to this part. At such time as the amount on deposit in the
21 Resident Protection Trust Fund is less than $500,000, the
22 agency may adopt rules to establish a rate which may not
23 exceed $10 per bed. The rate per bed shall revert back to the
24 minimum rate per bed when the amount on deposit in the
25 Resident Protection Trust Fund reaches $500,000, except that
26 any rate established by rule shall remain in effect until such
27 time as the rate has been equally required for each license
28 issued under this part. Any amount in the fund in excess of
29 $800,000 shall revert to the Health Care Trust Fund and may
30 not be expended without prior approval of the Legislature.
31 The agency may prorate the annual license fee for those
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1 licenses which it issues under this part for less than 1 year.
2 Funds generated by license fees collected in accordance with
3 this section shall be deposited in the 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 7. Subsections (2) and (5) of section 400.071,
21 Florida Statutes, are amended, and subsections (11) and (12)
22 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
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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.
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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
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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 8. Subsection (3) is added to section 400.111,
21 Florida Statutes, to read:
22 400.111 Expiration of license; renewal.--
23 (3) The agency may not renew a license if the
24 applicant has failed to pay any fines assessed by final order
25 of the agency or final order of the Health Care Financing
26 Administration under requirements for federal certification.
27 Section 9. Subsection (2) of section 400.118, Florida
28 Statutes, is amended to read:
29 400.118 Quality assurance; early warning system;
30 monitoring; rapid response teams.--
31
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1 (2)(a) The agency shall establish within each district
2 office one or more quality-of-care monitors, based on the
3 number of nursing facilities in the district, to monitor all
4 nursing facilities in the district on a regular, unannounced,
5 aperiodic basis, including nights, evenings, weekends, and
6 holidays. Quality-of-care monitors shall visit each nursing
7 facility at least quarterly. Priority for additional
8 monitoring visits shall be given to nursing facilities with a
9 history of resident patient care deficiencies. Quality-of-care
10 monitors shall be registered nurses who are trained and
11 experienced in nursing facility regulation, standards of
12 practice in long-term care, and evaluation of patient care.
13 Individuals in these positions shall not be deployed by the
14 agency as a part of the district survey team in the conduct of
15 routine, scheduled surveys, but shall function solely and
16 independently as quality-of-care monitors. Quality-of-care
17 monitors shall assess the overall quality of life in the
18 nursing facility and shall assess specific conditions in the
19 facility directly related to resident patient care, including
20 the operations of internal quality-improvement and
21 risk-management programs and adverse-incident reports. The
22 quality-of-care monitor shall include in an assessment visit
23 observation of the care and services rendered to residents and
24 formal and informal interviews with residents, family members,
25 facility staff, resident guests, volunteers, other regulatory
26 staff, and representatives of a long-term care ombudsman
27 council or Florida advocacy council.
28 (b) Findings of a monitoring visit, both positive and
29 negative, shall be provided orally and in writing to the
30 facility administrator or, in the absence of the facility
31 administrator, to the administrator on duty or the director of
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1 nursing. The quality-of-care monitor may recommend to the
2 facility administrator procedural and policy changes and staff
3 training, as needed, to improve the care or quality of life of
4 facility residents. Conditions observed by the quality-of-care
5 monitor which threaten the health or safety of a resident or
6 that represent repeated observations of deficient practice
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
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1 monitor makes a report to the appropriate authorities
2 regarding a threat to the health or safety of a resident.
3 Section 10. Section 400.121, Florida Statutes, is
4 amended to read:
5 400.121 Denial, suspension, revocation of license;
6 moratorium on admissions; administrative fines; procedure;
7 order to increase staffing.--
8 (1) The agency may deny, revoke, or suspend a license
9 or impose an administrative fine, not to exceed $500 per
10 violation per day, for:
11 (a) A violation of any provision of s. 400.102(1);.
12 (b) A demonstrated pattern of deficient practice;
13 (c) Failure to pay any outstanding fines assessed by
14 final order of the agency or fines assessed by the Health Care
15 Financing Administration pursuant to requirements for federal
16 certification;
17 (d) Exclusion from the Medicare or Medicaid program;
18 or
19 (e) An adverse action against any controlling interest
20 by a regulatory agency, including the appointment of a
21 receiver; denial, suspension, or revocation of a license; or
22 the issuance of an injunction by a regulatory agency. If the
23 adverse action involves solely the management company, the
24 applicant or licensee shall be given 30 days to remedy before
25 final action is taken.
26
27 All hearings shall be held within the county in which the
28 licensee or applicant operates or applies for a license to
29 operate a facility as defined herein.
30 (2) Except as provided in s. 400.23(8), a $500 fine
31 shall be imposed The agency, as a part of any final order
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1 issued by it under this part, may impose such fine as it deems
2 proper, except that such fine may not exceed $500 for each
3 violation. Each day a violation of this part occurs
4 constitutes a separate violation and is subject to a separate
5 fine, but in no event may any fine aggregate more than $5,000.
6 A fine may be levied pursuant to this section in lieu of and
7 notwithstanding the provisions of s. 400.23. Fines paid by any
8 nursing home facility licensee under this subsection shall be
9 deposited in the Resident Protection Trust Fund and expended
10 as provided in s. 400.063.
11 (3) The agency may issue an order immediately
12 suspending or revoking a license when it determines that any
13 condition in the facility presents a danger to the health,
14 safety, or welfare of the residents in the facility.
15 (4)(a) The agency may impose an immediate moratorium
16 on admissions to any facility when the agency determines that
17 any condition in the facility presents a threat to the health,
18 safety, or welfare of the residents in the facility.
19 (b) Where the agency has placed a moratorium on
20 admissions on any facility two times within a 7-year period,
21 the agency may suspend the license of the nursing home and the
22 facility's management company, if any. The licensee shall be
23 afforded an administrative hearing within 90 days after the
24 suspension to determine whether the license should be revoked.
25 During the suspension, the agency shall take the facility into
26 receivership and shall operate the facility.
27 (5) An action taken by the agency to deny, suspend, or
28 revoke a facility's license under this part, in which the
29 agency claims that the facility owner or an employee of the
30 facility has threatened the health, safety, or welfare of a
31 resident of the facility, shall be heard by the Division of
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1 Administrative Hearings of the Department of Management
2 Services within 120 days after receipt of the facility's
3 request for a hearing, unless the time limitation is waived by
4 both parties. The administrative law judge must render a
5 decision within 30 days after receipt of a proposed
6 recommended order. This subsection does not modify the
7 requirement that an administrative hearing be held within 90
8 days after a license is suspended under paragraph (4)(b).
9 (6) The agency is authorized to require a facility to
10 increase staffing beyond the minimum required by law, if the
11 agency has taken administrative action against the facility
12 for care-related deficiencies directly attributable to
13 insufficient staff. Under such circumstances, the facility may
14 request an expedited interim rate increase. The agency shall
15 process the request within 10 days after receipt of all
16 required documentation from the facility. A facility that
17 fails to maintain the required increased staffing is subject
18 to a fine of $500 per day for each day the staffing is below
19 the level required by the agency.
20 (7) An administrative proceeding challenging an action
21 by the agency to enforce licensure requirements shall be
22 reviewed on the basis of the facts and conditions that
23 resulted in the initial agency action.
24 Section 11. Subsection (10) of section 400.141,
25 Florida Statutes, is amended, and subsections (14), (15),
26 (16), (17), (18), and (19) are added to that section, to read:
27 400.141 Administration and management of nursing home
28 facilities.--Every licensed facility shall comply with all
29 applicable standards and rules of the agency and shall:
30 (10) Keep full records of resident admissions and
31 discharges; medical and general health status, including
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1 medical records, personal and social history, and identity and
2 address of next of kin or other persons who may have
3 responsibility for the affairs of the residents; and
4 individual resident care plans including, but not limited to,
5 prescribed services, services related to assistance with
6 activities of daily living, service frequency and duration,
7 and service goals. The records shall be open to inspection by
8 the agency.
9 (14) Submit to the agency the information specified in
10 s. 400.071(2)(e) for a management company within 30 days after
11 the effective date of the management agreement.
12 (15) Submit semiannually to the agency, or more
13 frequently if requested by the agency, information regarding
14 facility staff-to-resident ratios, staff turnover, and staff
15 stability, including information regarding certified nursing
16 assistants, licensed nurses, the director of nursing, and the
17 facility administrator. For purposes of this reporting:
18 (a) Staff-to-resident ratios must be reported in the
19 categories specified in s. 400.23(3)(a) and applicable rules.
20 The ratio must be reported as an average for the most recent
21 calendar quarter.
22 (b) Staff turnover must be reported for the most
23 recent 12-month period ending on the last workday of the most
24 recent calendar quarter prior to the date the information is
25 submitted. The turnover rate must be computed quarterly, with
26 the annual rate being the cumulative sum of the quarterly
27 rates. The formula for determining the turnover rate is the
28 total number of terminations or separations experienced during
29 the quarter, excluding any employee terminated during a
30 probationary period of 3 months or less, divided by the total
31
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1 number of staff employed at the end of the period for which
2 the rate is computed, and expressed as a percentage.
3 (c) The formula for determining staff stability is the
4 total number of employees that have been employed over the
5 previous 12 months, divided by the total number of employees
6 employed at the end of the most recent calendar quarter, and
7 expressed as a percentage.
8 (16) Report monthly the number of vacant beds in the
9 facility which are available for resident occupancy on the day
10 the information is reported.
11 (17) Ensure that any resident who displays mental,
12 psychosocial or adjustment difficulty receives appropriate
13 treatment and services to correct the assessed problem. The
14 attending physician of any resident who exhibits signs of
15 dementia or cognitive impairment must be notified by the
16 facility of the impairment to rule out the presence of an
17 underlying physiological condition that may be contributing to
18 such dementia or impairment. The notification must occur
19 within 7 days after admission of a resident to the facility or
20 within 7 days after the acknowledgement of such sign by
21 facility staff. The facility must notify the resident's
22 designee or legal representative prior to the notification.
23 If an underlying condition is determined to exist, the
24 facility shall arrange for necessary care and services to
25 treat the underlying condition.
26 (18) If the facility implements a dining and
27 hospitality attendant program, ensure that the program is
28 developed and implemented under the supervision of the
29 facility director of nursing. A licensed nurse or a registered
30 dietitian must conduct training of dining and hospitality
31 attendants. A person employed by a facility as a dining and
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1 hospitality attendant must perform tasks under the direct
2 supervision of a licensed nurse.
3 (19) Report to the agency any filing for bankruptcy
4 protection by the facility or its parent corporation,
5 divestiture or spin-off of its assets, or corporate
6 reorganization within 30 days after the completion of such
7 activity.
8
9 Facilities that have been awarded a Gold Seal under the
10 program established in s. 400.235 may develop a plan to
11 provide certified nursing assistant training as prescribed by
12 federal regulations and state rules and may apply to the
13 agency for approval of its program.
14 Section 12. Section 400.147, Florida Statutes, is
15 created to read:
16 400.147 Internal risk-management and quality-assurance
17 program.--
18 (1) Every facility shall, as part of its
19 administrative functions, establish an internal
20 risk-management and quality-assurance program, the purpose of
21 which is to assess resident-care practices; review facility
22 quality indicators, facility incident reports, deficiencies
23 cited by the agency, individual resident shared-risk
24 agreements as defined in s. 400.021, and resident grievances;
25 and develop plans of action to correct and respond quickly to
26 identified quality deficiencies. The program must include:
27 (a) A risk manager employed by the facility and
28 licensed under chapter 395 who is responsible for
29 implementation and oversight of the facility's internal
30 risk-management and quality-assurance program as required by
31 this section. A risk manager must not be made responsible for
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1 more than four internal risk-management and quality-assurance
2 programs in separate facilities licensed pursuant to chapter
3 400 or chapter 395.
4 (b) A risk-management and quality-assurance committee
5 consisting of the facility risk manager, the administrator,
6 the director of nursing, the medical director, and at least
7 three other members of the facility staff. The risk-management
8 and quality-assurance committee shall meet at least monthly.
9 (c) Policies and procedures to implement the internal
10 risk-management and quality-assurance program, which must
11 include the investigation and analysis of the frequency and
12 causes of general categories and specific types of adverse
13 incidents to residents.
14 (d) The development of appropriate measures to
15 minimize the risk of adverse incidents to residents,
16 including, but not limited to, education and training in risk
17 management and risk prevention for all nonphysician personnel,
18 as follows:
19 1. Such education and training of all nonphysician
20 personnel shall be part of their initial orientation; and
21 2. At least 3 hours of such education and training
22 shall be provided annually for all nonphysician personnel of
23 the licensed facility working in clinical areas and providing
24 resident care.
25 (e) The analysis of resident grievances that relate to
26 resident care and the quality of clinical services.
27 (f) The development and implementation of an
28 incident-reporting system based upon the affirmative duty of
29 all health care providers and all agents and employees of the
30 facility to report adverse incidents to the risk manager.
31
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1 (2) The internal risk-management and quality-assurance
2 program is the responsibility of the facility administrator.
3 (3) In addition to the programs mandated by this
4 section, other innovative approaches intended to reduce the
5 frequency and severity of adverse incidents to residents and
6 violations of residents' rights shall be encouraged and their
7 implementation and operation facilitated.
8 (4) Each internal risk-management and
9 quality-assurance program shall include the use of incident
10 reports to be filed with the risk manager and the facility
11 administrator. The risk manager shall have free access to all
12 resident records of the licensed facility. The incident
13 reports are confidential as provided by law, are part of the
14 workpapers of the attorney defending the facility in
15 litigation relating to the facility, and are subject to
16 discovery but are not admissible as evidence in court. As a
17 part of each internal risk-management and quality-assurance
18 program, the incident reports shall be used to develop
19 categories of incidents which identify problem areas. Once
20 identified, procedures shall be adjusted to correct the
21 problem areas.
22 (5) For purposes of reporting to the agency under this
23 section, the term "adverse incident" means:
24 (a) An event over which facility personnel could
25 exercise control and which is associated in whole or in part
26 with the facility's intervention, rather than the condition
27 for which such intervention occurred, and which results in one
28 of the following:
29 1. Death;
30 2. Brain or spinal damage;
31 3. Permanent disfigurement;
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1 4. Fracture or dislocation of bones or joints;
2 5. A resulting limitation of neurological, physical,
3 or sensory function;
4 6. Any condition that required medical attention to
5 which the resident has not given his or her informed consent
6 including failure to honor advanced directives; or
7 7. Any condition that required the transfer of the
8 resident, within or outside the facility, to a unit providing
9 a more acute level of care due to the adverse incident, rather
10 than the resident's condition prior to the adverse incident;
11 (b) Abuse, neglect, or exploitation as defined in s.
12 415.102 or s. 39.01;
13 (c) Resident elopement; or
14 (d) An event that is reported to law enforcement.
15 (6) The facility shall notify the agency within 1
16 business day after the occurrence of an adverse incident. The
17 notification must be made in writing and be provided by
18 facsimile device or overnight mail delivery. The notification
19 must include information regarding the identity of the
20 affected resident, the type of adverse incident, the
21 initiation of an investigation by the facility, and whether
22 the events causing or resulting in the adverse incident
23 represent a potential risk to any other resident. The
24 notification is confidential as provided by law and is not
25 discoverable or admissible in any civil or administrative
26 action, except in disciplinary proceedings by the agency or
27 the appropriate regulatory board. The agency may investigate,
28 as it deems appropriate, any such incident and prescribe
29 measures that must or may be taken in response to the
30 incident. The agency shall review each incident and determine
31 whether it potentially involved conduct by the health care
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1 professional who is subject to disciplinary action, in which
2 case the provisions of s. 456.073 shall apply.
3 (7)(a) Each facility subject to this section shall
4 submit an adverse-incident report to the agency for each
5 adverse incident within 15 calendar days after its occurrence
6 on a form developed by the agency.
7 (b) The information reported to the agency pursuant to
8 paragraph (a) which relates to persons licensed under chapter
9 458, chapter 459, chapter 461, or chapter 466 shall be
10 reviewed by the agency. The agency shall determine whether any
11 of the incidents potentially involved conduct by a health care
12 professional who is subject to disciplinary action, in which
13 case the provisions of s. 456.073 shall apply.
14 (c) The report submitted to the agency must also
15 contain the name and license number of the risk manager of the
16 facility.
17 (d) The adverse incident report is confidential as
18 provided by law and is not discoverable or admissible in any
19 civil or administrative action, except in disciplinary
20 proceedings by the agency or the appropriate regulatory board.
21 (8) Each facility subject to this section shall report
22 monthly any liability claim filed against it. The report must
23 include the name of the resident, the date or dates of the
24 incident leading to the claim, and the type of injury or
25 violation of rights alleged to have occurred.
26 (9) The internal risk manager of each facility shall:
27 (a) Investigate every allegation of sexual misconduct
28 which is made against a member of the facility's personnel who
29 has direct resident contact if it is alleged that the sexual
30 misconduct occurred at the facility or on the grounds of the
31 facility;
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1 (b) Report every allegation of sexual misconduct to
2 the administrator of the facility; and
3 (c) Notify the resident representative or guardian of
4 the victim that an allegation of sexual misconduct has been
5 made and that an investigation is being conducted.
6 (10)(a) Any witness who witnessed or who possesses
7 actual knowledge of the act that is the basis of an allegation
8 of sexual abuse shall notify:
9 1. The local law enforcement agency;
10 2. The central abuse hotline of the Department of
11 Children and Family Services; and
12 3. The risk manager and the administrator.
13 (b) As used in this subsection, the term "sexual
14 abuse" means acts of a sexual nature committed for the sexual
15 gratification of anyone upon, or in the presence of, a
16 vulnerable adult, without the vulnerable adult's informed
17 consent, or a minor. The term includes, but is not limited to,
18 the acts defined in s. 794.011(1)(h), fondling, exposure of a
19 vulnerable adult's or minor's sexual organs, or the use of the
20 vulnerable adult or minor to solicit for or engage in
21 prostitution or sexual performance. The term does not include
22 any act intended for a valid medical purpose or any act that
23 may reasonably be construed to be a normal caregiving action.
24 (11) The agency shall review, as part of its licensure
25 inspection process, the internal risk-management and
26 quality-assurance program at each facility regulated by this
27 section to determine whether the program meets standards
28 established in statutory laws and rules, is being conducted in
29 a manner designed to reduce adverse incidents, and is
30 appropriately reporting incidents as required by this section.
31
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1 (12) There is no monetary liability on the part of,
2 and a cause of action for damages may not arise against, any
3 risk manager licensed under chapter 395 for the implementation
4 and oversight of the internal risk-management and
5 quality-assurance program in a facility licensed under this
6 part as required by this section, or for any act or proceeding
7 undertaken or performed within the scope of the functions of
8 such internal risk-management and quality-assurance program if
9 the risk manager acts without intentional fraud.
10 (13) If the agency, through its receipt of the adverse
11 incident reports prescribed in subsection (7), or through any
12 investigation, has a reasonable belief that conduct by a staff
13 member or employee of a facility is grounds for disciplinary
14 action by the appropriate regulatory board, the agency shall
15 report this fact to the regulatory board.
16 (14) The agency may adopt rules to administer this
17 section.
18 (15) The agency shall annually submit to the
19 Legislature a report on nursing home internal risk management.
20 The report must include the following information arrayed by
21 county:
22 (a) The total number of adverse incidents.
23 (b) A listing, by category, of the types of adverse
24 incidents, the number of incidents occurring within each
25 category, and the type of staff involved.
26 (c) A listing, by category, of the types of injury
27 caused and the number of injuries occurring within each
28 category.
29 (d) Types of liability claims filed based on an
30 adverse incident or reportable injury.
31
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1 (e) Disciplinary action taken against staff,
2 categorized by type of staff involved.
3 Section 13. Section 400.1755, Florida Statutes, is
4 created to read:
5 400.1755 Care for persons with Alzheimer's disease or
6 other related disorders.--
7 (1)(a) An individual who is employed by a facility
8 that provides care for residents with Alzheimer's disease or
9 other related disorders must complete up to 4 hours of initial
10 dementia-specific training developed or approved by the
11 Department of Elderly Affairs. The training must be completed
12 within 3 months after beginning employment.
13 (b) A direct caregiver who is employed by a facility
14 that provides care for residents with Alzheimer's disease or
15 other related disorders and who provides direct care to such
16 residents must complete the required initial training and 4
17 additional hours of training developed or approved by the
18 Department of Elderly Affairs. The training must be completed
19 within 9 months after beginning employment.
20 (2) In addition to the training required under
21 subsection (1), a direct caregiver must participate in a
22 minimum of 4 contact hours of dementia-specific continuing
23 education each calendar year as approved by the Department of
24 Elderly Affairs.
25 (3) Upon completing any training listed in subsection
26 (1), the employee or direct caregiver shall be issued a
27 certificate that includes the name of the training provider,
28 the topic covered, and the date and signature of the training
29 provider. The certificate is evidence of completion of
30 training in the identified topic, and the employee or direct
31 caregiver is not required to repeat training in that topic if
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1 the employee or direct caregiver changes employment to a
2 different facility. The direct caregiver must comply with
3 other applicable continuing education requirements.
4 (4) The Department of Elderly Affairs, or its
5 designee, shall approve the initial and continuing education
6 courses and providers.
7 (5) The Department of Elderly Affairs shall keep a
8 current list of providers who are approved to provide initial
9 and continuing education for staff of facilities that provide
10 care for persons with Alzheimer's disease or other related
11 disorders.
12 (6) The Department of Elderly Affairs shall adopt
13 rules to establish standards for trainers and training
14 necessary to administer this section.
15 Section 14. Subsection (3) and paragraph (a) of
16 subsection (5) of section 400.191, Florida Statutes, are
17 amended to read:
18 400.191 Availability, distribution, and posting of
19 reports and records.--
20 (3) Each nursing home facility licensee shall maintain
21 as public information, available upon request, records of all
22 cost and inspection reports pertaining to that facility that
23 have been filed with, or issued by, any governmental agency.
24 Copies of such reports shall be retained in such records for
25 not less than 5 years from the date the reports are filed or
26 issued.
27 (a) The agency shall quarterly publish a "Nursing Home
28 Guide Watch List" to assist consumers in evaluating the
29 quality of nursing home care in Florida. The watch list must
30 identify each facility that met the criteria for a conditional
31 licensure status on any day within the quarter covered by the
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1 list; each facility that was operating under bankruptcy
2 protection on any day within the quarter; and each facility
3 that was operating without liability insurance. The watch
4 list must include the facility's name, address, and ownership;
5 the county in which the facility operates; the license
6 expiration date; the number of licensed beds; a description of
7 the deficiency causing the facility to be placed on the list;
8 any corrective action taken; and the cumulative number of
9 times the facility has been on a watch list. The watch list
10 must include a brief description regarding how to choose a
11 nursing home, the categories of licensure, the agency's
12 inspection process, an explanation of terms used in the watch
13 list, and the addresses and phone numbers of the agency's
14 managed care and health quality area offices.
15 (b) Upon publication of each quarterly watch list, the
16 agency must transmit a copy of the watch list to each nursing
17 home facility by mail and must make the watch list available
18 on the agency's Internet web site.
19 (5) Every nursing home facility licensee shall:
20 (a) Post, in a sufficient number of prominent
21 positions in the nursing home so as to be accessible to all
22 residents and to the general public:,
23 1. A concise summary of the last inspection report
24 pertaining to the nursing home and issued by the agency, with
25 references to the page numbers of the full reports, noting any
26 deficiencies found by the agency and the actions taken by the
27 licensee to rectify such deficiencies and indicating in such
28 summaries where the full reports may be inspected in the
29 nursing home.
30 2. A copy of the most recent version of the Florida
31 Nursing Home Guide Watch List.
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1 Section 15. Subsection (2) of section 400.211, Florida
2 Statutes, is amended, and subsection (4) is added to that
3 section, to read:
4 400.211 Persons employed as nursing assistants;
5 certification requirement.--
6 (2) The following categories of persons who are not
7 certified as nursing assistants under part II of chapter 464
8 may be employed as a certified nursing assistant by a nursing
9 facility for a period of 4 months:
10 (a) Persons who are enrolled in, or have completed, a
11 state-approved nursing assistant program; or
12 (b) Persons who have been positively verified as
13 actively certified and on the registry in another state and
14 who have not been found guilty of abuse, neglect, or
15 exploitation in another state, regardless of adjudication and
16 have not entered a plea of nolo contendere or guilty with no
17 findings of abuse; or
18 (c) Persons who have preliminarily passed the state's
19 certification exam.
20
21 The certification requirement must be met within 4 months
22 after initial employment as a nursing assistant in a licensed
23 nursing facility.
24 (4) When employed by a nursing home facility for a
25 12-month period or longer, a nursing assistant, to maintain
26 certification, shall submit to a performance review every 12
27 months and must receive regular in-service education based on
28 the outcome of such reviews. The in-service training must:
29 (a) Be sufficient to ensure the continuing competence
30 of nursing assistants, must be at least 18 hours per year, and
31 may include hours accrued under s. 464.203(8);
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1 (b) Include, at a minimum:
2 1. Techniques for assisting with eating and proper
3 feeding;
4 2. Principles of adequate nutrition and hydration;
5 3. Techniques for assisting and responding to the
6 cognitively impaired resident or the resident with difficult
7 behaviors;
8 4. Techniques for caring for the resident at the
9 end-of-life; and
10 5. Recognizing changes that place a resident at risk
11 for pressure ulcers and falls; and
12 (c) Address areas of weakness as determined in nursing
13 assistant performance reviews and may address the special
14 needs of residents as determined by the nursing home facility
15 staff.
16 Section 16. Subsections (2), (3), and (8) of section
17 400.23, Florida Statutes, are amended to read:
18 400.23 Rules; evaluation and deficiencies; licensure
19 status.--
20 (2) Pursuant to the intention of the Legislature, the
21 agency, in consultation with the Department of Health and the
22 Department of Elderly Affairs, shall adopt and enforce rules
23 to implement this part, which shall include reasonable and
24 fair criteria in relation to:
25 (a) The location and construction of the facility;
26 including fire and life safety, plumbing, heating, cooling,
27 lighting, ventilation, and other housing conditions which will
28 ensure the health, safety, and comfort of residents, including
29 an adequate call system. The agency shall establish standards
30 for facilities and equipment to increase the extent to which
31 new facilities and a new wing or floor added to an existing
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1 facility after July 1, 1999, are structurally capable of
2 serving as shelters only for residents, staff, and families of
3 residents and staff, and equipped to be self-supporting during
4 and immediately following disasters. The agency shall work
5 with facilities licensed under this part and report to the
6 Governor and Legislature by April 1, 1999, its recommendations
7 for cost-effective renovation standards to be applied to
8 existing facilities. In making such rules, the agency shall be
9 guided by criteria recommended by nationally recognized
10 reputable professional groups and associations with knowledge
11 of such subject matters. The agency shall update or revise
12 such criteria as the need arises. All nursing homes must
13 comply with those lifesafety code requirements and building
14 code standards applicable at the time of approval of their
15 construction plans. The agency may require alterations to a
16 building if it determines that an existing condition
17 constitutes a distinct hazard to life, health, or safety. The
18 agency shall adopt fair and reasonable rules setting forth
19 conditions under which existing facilities undergoing
20 additions, alterations, conversions, renovations, or repairs
21 shall be required to comply with the most recent updated or
22 revised standards.
23 (b) The number and qualifications of all personnel,
24 including management, medical, nursing, and other professional
25 personnel, and nursing assistants, orderlies, and support
26 personnel, having responsibility for any part of the care
27 given residents.
28 (c) All sanitary conditions within the facility and
29 its surroundings, including water supply, sewage disposal,
30 food handling, and general hygiene which will ensure the
31 health and comfort of residents.
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1 (d) The equipment essential to the health and welfare
2 of the residents.
3 (e) A uniform accounting system.
4 (f) The care, treatment, and maintenance of residents
5 and measurement of the quality and adequacy thereof, based on
6 rules developed under this chapter and the Omnibus Budget
7 Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22,
8 1987), Title IV (Medicare, Medicaid, and Other Health-Related
9 Programs), Subtitle C (Nursing Home Reform), as amended.
10 (g) The preparation and annual update of a
11 comprehensive emergency management plan. The agency shall
12 adopt rules establishing minimum criteria for the plan after
13 consultation with the Department of Community Affairs. At a
14 minimum, the rules must provide for plan components that
15 address emergency evacuation transportation; adequate
16 sheltering arrangements; postdisaster activities, including
17 emergency power, food, and water; postdisaster transportation;
18 supplies; staffing; emergency equipment; individual
19 identification of residents and transfer of records; and
20 responding to family inquiries. The comprehensive emergency
21 management plan is subject to review and approval by the local
22 emergency management agency. During its review, the local
23 emergency management agency shall ensure that the following
24 agencies, at a minimum, are given the opportunity to review
25 the plan: the Department of Elderly Affairs, the Department
26 of Health, the Agency for Health Care Administration, and the
27 Department of Community Affairs. Also, appropriate volunteer
28 organizations must be given the opportunity to review the
29 plan. The local emergency management agency shall complete
30 its review within 60 days and either approve the plan or
31 advise the facility of necessary revisions.
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1 (h) The implementation of the consumer-satisfaction
2 survey pursuant to s. 400.0225; the availability,
3 distribution, and posting of reports and records pursuant to
4 s. 400.191; and the Gold Seal Program pursuant to s. 400.235.
5 (3)(a) The agency shall adopt rules providing for the
6 minimum staffing requirements for nursing homes. These
7 requirements shall include, for each nursing home facility, a
8 minimum certified nursing assistant staffing of 2.3 hours of
9 direct care per resident per day beginning January 1, 2002,
10 increasing to 2.6 hours of direct care per resident per day
11 beginning January 1, 2003, increasing to 2.8 hours of direct
12 care per resident per day beginning January 1, 2004, and
13 increasing to 2.9 hours of direct care per resident per day
14 beginning January 1, 2005, but never below one certified
15 nursing assistant per 20 residents, and a minimum licensed
16 nursing staffing of 1.0 hour of direct resident care per
17 resident per day but never below one licensed nurse per 40
18 residents, including evening and night shifts and weekends.
19 Nursing assistants employed under s. 400.211(2) may be
20 included in computing the staffing ratio for certified nursing
21 assistants only if they provide nursing assistance services to
22 residents on a full-time basis. Each nursing home must
23 document compliance with staffing standards as required under
24 this paragraph and post daily Agency rules shall specify
25 requirements for documentation of compliance with staffing
26 standards, sanctions for violation of such standards, and
27 requirements for daily posting of the names of staff on duty
28 for the benefit of facility residents and the public. The
29 agency shall recognize the use of licensed nurses for
30 compliance with minimum staffing requirements for certified
31 nursing assistants, provided that the facility otherwise meets
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1 the minimum staffing requirements for licensed nurses and that
2 the licensed nurses so recognized are performing the duties of
3 a certified nursing assistant. Unless otherwise approved by
4 the agency, licensed nurses counted towards the minimum
5 staffing requirements for certified nursing assistants must
6 exclusively perform the duties of a certified nursing
7 assistant for the entire shift and shall not also be counted
8 towards the minimum staffing requirements for licensed nurses.
9 If the agency approved a facility's request to use a licensed
10 nurse to perform both licensed nursing and certified nursing
11 assistant duties, the facility must allocate the amount of
12 staff time specifically spent on certified nursing assistant
13 duties for the purpose of documenting compliance with minimum
14 staffing requirements for certified and licensed nursing
15 staff. In no event may the hours of a licensed nurse with dual
16 job responsibilities be counted twice.
17 (b) The agency shall adopt rules to allow properly
18 trained staff of a nursing facility, in addition to certified
19 nursing assistants and licensed nurses, to assist residents
20 with eating. The rules shall specify the minimum training
21 requirements and shall specify the physiological conditions or
22 disorders of residents which would necessitate that the eating
23 assistance be provided by nursing personnel of the facility.
24 Nonnursing staff providing eating assistance to residents
25 under the provisions of this subsection shall not count
26 towards compliance with minimum staffing standards.
27 (c) Licensed practical nurses licensed under chapter
28 464 who are providing nursing services in nursing home
29 facilities under this part may supervise the activities of
30 other licensed practical nurses, certified nursing assistants,
31 and other unlicensed personnel providing services in such
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1 facilities in accordance with rules adopted by the Board of
2 Nursing.
3 (8) The agency shall adopt rules to provide that, when
4 the criteria established under subsection (2) are not met,
5 such deficiencies shall be classified according to the nature
6 of the deficiency. The agency shall indicate the
7 classification on the face of the notice of deficiencies as
8 follows:
9 (a) Class I deficiencies are those which the agency
10 determines present an imminent danger to the residents or
11 guests of the nursing home facility or a substantial
12 probability that death or serious physical harm would result
13 therefrom. The condition or practice constituting a class I
14 violation shall be abated or eliminated immediately, unless a
15 fixed period of time, as determined by the agency, is required
16 for correction. Notwithstanding s. 400.121(2), A class I
17 deficiency is subject to a civil penalty in an amount not less
18 than $10,000 $5,000 and not exceeding $25,000 for each and
19 every deficiency. A fine must may be levied notwithstanding
20 the correction of the deficiency.
21 (b) Class II deficiencies are those which the agency
22 determines have a direct or immediate relationship to the
23 health, safety, or security of the nursing home facility
24 residents, other than class I deficiencies. A class II
25 deficiency is subject to a civil penalty in an amount not less
26 than $5,000 $1,000 and not exceeding $10,000 for each and
27 every deficiency. A citation for a class II deficiency must
28 shall specify the time within which the deficiency is required
29 to be corrected. If a class II deficiency is corrected within
30 the time specified, no civil penalty shall be imposed, unless
31 it is a repeated offense.
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1 (c) Class III deficiencies are those which the agency
2 determines to have an indirect or potential relationship to
3 the health, safety, or security of the nursing home facility
4 residents, other than class I or class II deficiencies. A
5 class III deficiency is shall be subject to a civil penalty of
6 not less than $1,000 $500 and not exceeding $2,500 for each
7 and every deficiency. A citation for a class III deficiency
8 must shall specify the time within which the deficiency is
9 required to be corrected. If a class III deficiency is
10 corrected within the time specified, no civil penalty shall be
11 imposed, unless it is a repeated offense.
12 Section 17. Subsection (5) of section 400.235, Florida
13 Statutes, is amended to read:
14 400.235 Nursing home quality and licensure status;
15 Gold Seal Program.--
16 (5) Facilities must meet the following additional
17 criteria for recognition as a Gold Seal Program facility:
18 (a) Had no class I or class II deficiencies within the
19 30 months preceding application for the program.
20 (b) Evidence financial soundness and stability
21 according to standards adopted by the agency in administrative
22 rule.
23 (c) Participate consistently in the required consumer
24 satisfaction process as prescribed by the agency, and
25 demonstrate that information is elicited from residents,
26 family members, and guardians about satisfaction with the
27 nursing facility, its environment, the services and care
28 provided, the staff's skills and interactions with residents,
29 attention to resident's needs, and the facility's efforts to
30 act on information gathered from the consumer satisfaction
31 measures.
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1 (d) Evidence the involvement of families and members
2 of the community in the facility on a regular basis.
3 (e) Have a stable workforce, as described in s.
4 400.141, as evidenced by a relatively low rate of turnover
5 among certified nursing assistants and licensed nurses within
6 the 30 months preceding application for the Gold Seal Program,
7 and demonstrate a continuing effort to maintain a stable
8 workforce and to reduce turnover of licensed nurses and
9 certified nursing assistants.
10 (f) Evidence an outstanding record regarding the
11 number and types of substantiated complaints reported to the
12 State Long-Term Care Ombudsman Council within the 30 months
13 preceding application for the program.
14 (g) Provide targeted inservice training provided to
15 meet training needs identified by internal or external quality
16 assurance efforts.
17
18 A facility assigned a conditional licensure status may not
19 qualify for consideration for the Gold Seal Program until
20 after it has operated for 30 months with no class I or class
21 II deficiencies and has completed a regularly scheduled
22 relicensure survey.
23 Section 18. Section 400.237, Florida Statutes, is
24 created to read:
25 400.237 Nursing home facility grading system; ranking
26 of nursing home facilities; use of ranking information.--
27 (1) It is the intent of the Legislature to encourage
28 continuous improvement in the quality of care and quality of
29 life of nursing home facility residents. It is further the
30 intent of the Legislature that nursing home facilities with a
31 record of providing good quality care receive favorable rates
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1 from liability insurers and favorable consideration by the
2 courts in civil litigation.
3 (2) The Legislature intends to develop a grading
4 system that measures nursing home facility performance related
5 to quality indicators. The system must build upon the
6 procedures for measuring quality of care developed by the Gold
7 Seal Program under s. 400.235.
8 (3) By July 1, 2002, the agency shall prepare and
9 implement a system for grading nursing home facilities against
10 optimal standards for quality of care and quality of life. The
11 system must include a uniform method of evaluating nursing
12 home facilities in the following areas:
13 (a) Staffing levels and ratios;
14 (b) Staff turnover rates;
15 (c) Credentials of key personnel;
16 (d) Pressure ulcers;
17 (e) Nutrition and hydration;
18 (f) Use of restraints;
19 (g) Dignity;
20 (h) Maintenance of residents' functioning;
21 (i) Resident and resident family satisfaction;
22 (j) Substantiated complaints;
23 (k) Deficiency citations;
24 (l) Adverse incidents and past claims experience;
25 (m) Hospitalizations;
26 (n) Facility cleanliness;
27 (o) Falls;
28 (p) Community and family involvement;
29 (q) Ombudsman program evaluation;
30 (r) Living environment;
31 (s) Risk management, loss control, and general safety;
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1 (t) Privacy.
2 (4) Each nursing home facility must be graded annually
3 against an optimal quality score and ranked according to
4 whether its score is at or above 80 percent of the optimal
5 score, in which case the facility shall be given five stars;
6 at or above 60 percent, but not greater than 79 percent of the
7 optimal score, in which case the facility shall be given four
8 stars; at or above 40 percent, but not greater than 59 percent
9 of the optimal score, in which case the facility shall be
10 given three stars; at or above 20 percent, but not greater
11 than 39 percent of the optimal score, in which case the
12 facility shall be given two stars; or at or below 19 percent
13 of the optimal score, in which case the facility shall be
14 given one star.
15 (5) The agency shall reevaluate each nursing home
16 facility quarterly through announced and unannounced
17 inspections.
18 (6) Beginning with the second annual grading period
19 and every year thereafter, the agency shall identify each
20 nursing home facility's performance as having improved,
21 remained the same, or declined. The facility improvement
22 rating shall be based on a comparison of the current year's
23 and previous year's performance.
24 (7) By July 1, 2007, and every 5 years thereafter, the
25 agency shall reevaluate the optimal standards for nursing home
26 facility quality of care and quality of life and raise the
27 standards to reflect improvements in the grading scores of
28 nursing home facilities.
29 (8) The secretary of the agency shall convene a
30 workgroup to assist the agency in developing the grading
31 system. The workgroup shall be composed of two nursing home
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1 administrators whose facilities have not had a class I or
2 class II deficiency since January 1, 1999; a physician with
3 geriatric training and experience in treating nursing home
4 residents; a person with training and experience in designing
5 grading and ranking systems; a licensed risk manager with
6 experience in a nursing facility; the State Long-Term Care
7 Ombudsman; a designee of the Secretary of Elderly Affairs; a
8 quality-of-care monitor or licensure surveyor with monitoring
9 or survey experience in nursing homes; and a representative of
10 an organized group that advocates for the elderly.
11 (9) Each nursing home facility shall post, in a
12 sufficient number of prominent positions in the nursing home
13 so as to be accessible to all residents and to the public, the
14 facility's ranking and improvement ratings.
15 (10) The agency shall publish the ranking and
16 improvement rating of all nursing home facilities on the
17 agency's website and in printed guides by region of the state.
18 (11) The agency may adopt rules necessary to
19 administer this section.
20 Section 19. Section 400.275, Florida Statutes, is
21 created to read:
22 400.275 Agency duties.--
23 (1) The agency shall ensure that each newly hired
24 nursing home surveyor, as a part of basic training, is
25 assigned full-time to a licensed nursing home for at least 2
26 days within a 7-day period to observe facility operations
27 outside of the survey process before the surveyor begins
28 survey responsibilities. The agency may not assign an
29 individual to be a member of a survey team for purposes of a
30 survey, evaluation, or consultation visit at a nursing home
31
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1 facility in which the surveyor was an employee within the
2 preceding 5 years.
3 (2) The agency shall semiannually provide for joint
4 training of nursing home surveyors and staff of facilities
5 licensed under this part on at least one of the 10 federal
6 citations that were most frequently issued against nursing
7 facilities in this state during the previous calendar year.
8 (3) Each member of a nursing home survey team who is a
9 health professional licensed under part I of chapter 464, part
10 X of chapter 468, or chapter 491, shall earn not less than 50
11 percent of required continuing education credits in geriatric
12 care. Each member of a nursing home survey team who is a
13 health professional licensed under chapter 465 shall earn not
14 less than 30 percent of required continuing education credits
15 in geriatric care.
16 (4) The agency must ensure that when a deficiency is
17 related to substandard quality of care, a physician with
18 geriatric experience licensed under chapter 458 or chapter 459
19 or a registered nurse with geriatric experience licensed under
20 chapter 464 participates in the agency's informal
21 dispute-resolution process.
22 Section 20. Section 400.402, Florida Statutes, is
23 amended to read:
24 400.402 Definitions.--When used in this part, the
25 term:
26 (1) "Activities of daily living" means functions and
27 tasks for self-care, including ambulation, bathing, dressing,
28 eating, grooming, and toileting, and other similar tasks.
29 (2) "Administrator" means an individual at least 21
30 years of age who is responsible for the operation and
31 maintenance of an assisted living facility.
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1 (3) "Agency" means the Agency for Health Care
2 Administration.
3 (4) "Aging in place" or "age in place" means the
4 process of providing increased or adjusted services to a
5 person to compensate for the physical or mental decline that
6 may occur with the aging process, in order to maximize the
7 person's dignity and independence and permit them to remain in
8 a familiar, noninstitutional, residential environment for as
9 long as possible. Such services may be provided by facility
10 staff, volunteers, family, or friends, or through contractual
11 arrangements with a third party.
12 (5) "Applicant" means an individual owner,
13 corporation, partnership, firm, association, or governmental
14 entity that applies for a license.
15 (6) "Assisted living facility" means any building or
16 buildings, section or distinct part of a building, private
17 home, boarding home, home for the aged, or other residential
18 facility, whether operated for profit or not, which undertakes
19 through its ownership or management to provide housing, meals,
20 and one or more personal services for a period exceeding 24
21 hours to one or more adults who are not relatives of the owner
22 or administrator.
23 (7) "Chemical restraint" means a pharmacologic drug
24 that physically limits, restricts, or deprives an individual
25 of movement or mobility, and is used for discipline or
26 convenience and not required for the treatment of medical
27 symptoms.
28 (8) "Community living support plan" means a written
29 document prepared by a mental health resident and the
30 resident's mental health case manager in consultation with the
31 administrator of an assisted living facility with a limited
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1 mental health license or the administrator's designee. A copy
2 must be provided to the administrator. The plan must include
3 information about the supports, services, and special needs of
4 the resident which enable the resident to live in the assisted
5 living facility and a method by which facility staff can
6 recognize and respond to the signs and symptoms particular to
7 that resident which indicate the need for professional
8 services.
9 (9) "Cooperative agreement" means a written statement
10 of understanding between a mental health care provider and the
11 administrator of the assisted living facility with a limited
12 mental health license in which a mental health resident is
13 living. The agreement must specify directions for accessing
14 emergency and after-hours care for the mental health resident.
15 A single cooperative agreement may service all mental health
16 residents who are clients of the same mental health care
17 provider.
18 (10) "Department" means the Department of Elderly
19 Affairs.
20 (11) "Emergency" means a situation, physical
21 condition, or method of operation which presents imminent
22 danger of death or serious physical or mental harm to facility
23 residents.
24 (12) "Extended congregate care" means acts beyond
25 those authorized in subsection (16) (17) that may be performed
26 pursuant to part I of chapter 464 by persons licensed
27 thereunder while carrying out their professional duties, and
28 other supportive services which may be specified by rule. The
29 purpose of such services is to enable residents to age in
30 place in a residential environment despite mental or physical
31
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1 limitations that might otherwise disqualify them from
2 residency in a facility licensed under this part.
3 (13) "Guardian" means a person to whom the law has
4 entrusted the custody and control of the person or property,
5 or both, of a person who has been legally adjudged
6 incapacitated.
7 (14) "Limited nursing services" means acts that may be
8 performed pursuant to part I of chapter 464 by persons
9 licensed thereunder while carrying out their professional
10 duties but limited to those acts which the department
11 specifies by rule. Acts which may be specified by rule as
12 allowable limited nursing services shall be for persons who
13 meet the admission criteria established by the department for
14 assisted living facilities and shall not be complex enough to
15 require 24-hour nursing supervision and may include such
16 services as the application and care of routine dressings, and
17 care of casts, braces, and splints.
18 (15) "Managed risk" means the process by which the
19 facility staff discuss the service plan and the needs of the
20 resident with the resident and, if applicable, the resident's
21 representative or designee or the resident's surrogate,
22 guardian, or attorney in fact, in such a way that the
23 consequences of a decision, including any inherent risk, are
24 explained to all parties and reviewed periodically in
25 conjunction with the service plan, taking into account changes
26 in the resident's status and the ability of the facility to
27 respond accordingly.
28 (15)(16) "Mental health resident" means an individual
29 who receives social security disability income due to a mental
30 disorder as determined by the Social Security Administration
31 or receives supplemental security income due to a mental
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1 disorder as determined by the Social Security Administration
2 and receives optional state supplementation.
3 (16)(17) "Personal services" means direct physical
4 assistance with or supervision of the activities of daily
5 living and the self-administration of medication and other
6 similar services which the department may define by rule.
7 "Personal services" shall not be construed to mean the
8 provision of medical, nursing, dental, or mental health
9 services.
10 (17)(18) "Physical restraint" means a device which
11 physically limits, restricts, or deprives an individual of
12 movement or mobility, including, but not limited to, a
13 half-bed rail, a full-bed rail, a geriatric chair, and a posey
14 restraint. The term "physical restraint" shall also include
15 any device which was not specifically manufactured as a
16 restraint but which has been altered, arranged, or otherwise
17 used for this purpose. The term shall not include bandage
18 material used for the purpose of binding a wound or injury.
19 (18)(19) "Relative" means an individual who is the
20 father, mother, stepfather, stepmother, son, daughter,
21 brother, sister, grandmother, grandfather, great-grandmother,
22 great-grandfather, grandson, granddaughter, uncle, aunt, first
23 cousin, nephew, niece, husband, wife, father-in-law,
24 mother-in-law, son-in-law, daughter-in-law, brother-in-law,
25 sister-in-law, stepson, stepdaughter, stepbrother, stepsister,
26 half brother, or half sister of an owner or administrator.
27 (19)(20) "Resident" means a person 18 years of age or
28 older, residing in and receiving care from a facility.
29 (20)(21) "Resident's representative or designee" means
30 a person other than the owner, or an agent or employee of the
31 facility, designated in writing by the resident, if legally
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1 competent, to receive notice of changes in the contract
2 executed pursuant to s. 400.424; to receive notice of and to
3 participate in meetings between the resident and the facility
4 owner, administrator, or staff concerning the rights of the
5 resident; to assist the resident in contacting the ombudsman
6 council if the resident has a complaint against the facility;
7 or to bring legal action on behalf of the resident pursuant to
8 s. 400.429.
9 (21)(22) "Service plan" means a written plan,
10 developed and agreed upon by the resident and, if applicable,
11 the resident's representative or designee or the resident's
12 surrogate, guardian, or attorney in fact, if any, and the
13 administrator or designee representing the facility, which
14 addresses the unique physical and psychosocial needs,
15 abilities, and personal preferences of each resident receiving
16 extended congregate care services. The plan shall include a
17 brief written description, in easily understood language, of
18 what services shall be provided, who shall provide the
19 services, when the services shall be rendered, and the
20 purposes and benefits of the services.
21 (22)(23) "Shared responsibility" means exploring the
22 options available to a resident within a facility and the
23 risks involved with each option when making decisions
24 pertaining to the resident's abilities, preferences, and
25 service needs, thereby enabling the resident and, if
26 applicable, the resident's representative or designee, or the
27 resident's surrogate, guardian, or attorney in fact, and the
28 facility to develop a service plan which best meets the
29 resident's needs and seeks to improve the resident's quality
30 of life.
31
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1 (23)(24) "Supervision" means reminding residents to
2 engage in activities of daily living and the
3 self-administration of medication, and, when necessary,
4 observing or providing verbal cuing to residents while they
5 perform these activities.
6 (24)(25) "Supplemental security income," Title XVI of
7 the Social Security Act, means a program through which the
8 Federal Government guarantees a minimum monthly income to
9 every person who is age 65 or older, or disabled, or blind and
10 meets the income and asset requirements.
11 (25)(26) "Supportive services" means services designed
12 to encourage and assist aged persons or adults with
13 disabilities to remain in the least restrictive living
14 environment and to maintain their independence as long as
15 possible.
16 (26)(27) "Twenty-four-hour nursing supervision" means
17 services that are ordered by a physician for a resident whose
18 condition requires the supervision of a physician and
19 continued monitoring of vital signs and physical status. Such
20 services shall be: medically complex enough to require
21 constant supervision, assessment, planning, or intervention by
22 a nurse; required to be performed by or under the direct
23 supervision of licensed nursing personnel or other
24 professional personnel for safe and effective performance;
25 required on a daily basis; and consistent with the nature and
26 severity of the resident's condition or the disease state or
27 stage.
28 Section 21. Subsections (3) and (4) of section
29 400.407, Florida Statutes, are amended to read:
30 400.407 License required; fee, display.--
31
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1 (3) Any license granted by the agency must state the
2 maximum resident capacity of the facility, the type of care
3 for which the license is granted, the date the license is
4 issued, the expiration date of the license, and any other
5 information deemed necessary by the agency. Licenses shall be
6 issued for one or more of the following categories of care:
7 standard, extended congregate care, limited nursing services,
8 or limited mental health.
9 (a) A standard license shall be issued to facilities
10 providing one or more of the personal services identified in
11 s. 400.402. Such facilities may also employ or contract with a
12 person licensed under part I of chapter 464 to administer
13 medications and perform other tasks as specified in s.
14 400.4255.
15 (b) An extended congregate care license shall be
16 issued to facilities providing, directly or through contract,
17 services beyond those authorized in paragraph (a), including
18 acts performed pursuant to part I of chapter 464 by persons
19 licensed thereunder, and supportive services defined by rule
20 to persons who otherwise would be disqualified from continued
21 residence in a facility licensed under this part.
22 1. In order for extended congregate care services to
23 be provided in a facility licensed under this part, the agency
24 must first determine that all requirements established in law
25 and rule are met and must specifically designate, on the
26 facility's license, that such services may be provided and
27 whether the designation applies to all or part of a facility.
28 Such designation may be made at the time of initial licensure
29 or biennial relicensure, or upon request in writing by a
30 licensee under this part. Notification of approval or denial
31 of such request shall be made within 90 days after receipt of
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1 such request and all necessary documentation. Existing
2 facilities qualifying to provide extended congregate care
3 services must have maintained a standard license and may not
4 have been subject to administrative sanctions during the
5 previous 2 years, or since initial licensure if the facility
6 has been licensed for less than 2 years, for any of the
7 following reasons:
8 a. A class I or class II violation;
9 b. Three or more repeat or recurring class III
10 violations of identical or similar resident care standards as
11 specified in rule from which a pattern of noncompliance is
12 found by the agency;
13 c. Three or more class III violations that were not
14 corrected in accordance with the corrective action plan
15 approved by the agency;
16 d. Violation of resident care standards resulting in a
17 requirement to employ the services of a consultant pharmacist
18 or consultant dietitian;
19 e. Denial, suspension, or revocation of a license for
20 another facility under this part in which the applicant for an
21 extended congregate care license has at least 25 percent
22 ownership interest; or
23 f. Imposition of a moratorium on admissions or
24 initiation of injunctive proceedings.
25 2. Facilities that are licensed to provide extended
26 congregate care services shall maintain a written progress
27 report on each person who receives such services, which report
28 describes the type, amount, duration, scope, and outcome of
29 services that are rendered and the general status of the
30 resident's health. A registered nurse, or appropriate
31 designee, representing the agency shall visit such facilities
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1 at least quarterly two times a year to monitor residents who
2 are receiving extended congregate care services and to
3 determine if the facility is in compliance with this part and
4 with rules that relate to extended congregate care. One of
5 these visits may be in conjunction with the regular biennial
6 survey. The monitoring visits may be provided through
7 contractual arrangements with appropriate community agencies.
8 A registered nurse shall serve as part of the team that
9 biennially inspects such facility. The agency may waive one of
10 the required yearly monitoring visits for a facility that has
11 been licensed for at least 24 months to provide extended
12 congregate care services, if, during the biennial inspection,
13 the registered nurse determines that extended congregate care
14 services are being provided appropriately, and if the facility
15 has no class I or class II violations and no uncorrected class
16 III violations. Before such decision is made, the agency shall
17 consult with the long-term care ombudsman council for the area
18 in which the facility is located to determine if any
19 complaints have been made and substantiated about the quality
20 of services or care. The agency may not waive one of the
21 required yearly monitoring visits if complaints have been made
22 and substantiated.
23 3. Facilities that are licensed to provide extended
24 congregate care services shall:
25 a. Demonstrate the capability to meet unanticipated
26 resident service needs.
27 b. Offer a physical environment that promotes a
28 homelike setting, provides for resident privacy, promotes
29 resident independence, and allows sufficient congregate space
30 as defined by rule.
31
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1 c. Have sufficient staff available, taking into
2 account the physical plant and firesafety features of the
3 building, to assist with the evacuation of residents in an
4 emergency, as necessary.
5 d. Adopt and follow policies and procedures that
6 maximize resident independence, dignity, choice, and
7 decisionmaking to permit residents to age in place to the
8 extent possible, so that moves due to changes in functional
9 status are minimized or avoided.
10 e. Allow residents or, if applicable, a resident's
11 representative, designee, surrogate, guardian, or attorney in
12 fact to make a variety of personal choices, participate in
13 developing service plans, and share responsibility in
14 decisionmaking.
15 f. Implement the concept of managed risk.
16 g. Provide, either directly or through contract, the
17 services of a person licensed pursuant to part I of chapter
18 464.
19 h. In addition to the training mandated in s. 400.452,
20 provide specialized training as defined by rule for facility
21 staff.
22 4. Facilities licensed to provide extended congregate
23 care services are exempt from the criteria for continued
24 residency as set forth in rules adopted under s. 400.441.
25 Facilities so licensed shall adopt their own requirements
26 within guidelines for continued residency set forth by the
27 department in rule. However, such facilities may not serve
28 residents who require 24-hour nursing supervision. Facilities
29 licensed to provide extended congregate care services shall
30 provide each resident with a written copy of facility policies
31 governing admission and retention.
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1 5. The primary purpose of extended congregate care
2 services is to allow residents, as they become more impaired,
3 the option of remaining in a familiar setting from which they
4 would otherwise be disqualified for continued residency. A
5 facility licensed to provide extended congregate care services
6 may also admit an individual who exceeds the admission
7 criteria for a facility with a standard license, if the
8 individual is determined appropriate for admission to the
9 extended congregate care facility.
10 6. Before admission of an individual to a facility
11 licensed to provide extended congregate care services, the
12 individual must undergo a medical examination as provided in
13 s. 400.426(4) and the facility must develop a preliminary
14 service plan for the individual.
15 7. When a facility can no longer provide or arrange
16 for services in accordance with the resident's service plan
17 and needs and the facility's policy, the facility shall make
18 arrangements for relocating the person in accordance with s.
19 400.428(1)(k).
20 8. Failure to provide extended congregate care
21 services may result in denial of extended congregate care
22 license renewal.
23 9. No later than January 1 of each year, the
24 department, in consultation with the agency, shall prepare and
25 submit to the Governor, the President of the Senate, the
26 Speaker of the House of Representatives, and the chairs of
27 appropriate legislative committees, a report on the status of,
28 and recommendations related to, extended congregate care
29 services. The status report must include, but need not be
30 limited to, the following information:
31
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1 a. A description of the facilities licensed to provide
2 such services, including total number of beds licensed under
3 this part.
4 b. The number and characteristics of residents
5 receiving such services.
6 c. The types of services rendered that could not be
7 provided through a standard license.
8 d. An analysis of deficiencies cited during licensure
9 biennial inspections.
10 e. The number of residents who required extended
11 congregate care services at admission and the source of
12 admission.
13 f. Recommendations for statutory or regulatory
14 changes.
15 g. The availability of extended congregate care to
16 state clients residing in facilities licensed under this part
17 and in need of additional services, and recommendations for
18 appropriations to subsidize extended congregate care services
19 for such persons.
20 h. Such other information as the department considers
21 appropriate.
22 (c) A limited nursing services license shall be issued
23 to a facility that provides services beyond those authorized
24 in paragraph (a) and as specified in this paragraph.
25 1. In order for limited nursing services to be
26 provided in a facility licensed under this part, the agency
27 must first determine that all requirements established in law
28 and rule are met and must specifically designate, on the
29 facility's license, that such services may be provided. Such
30 designation may be made at the time of initial licensure or
31 biennial relicensure, or upon request in writing by a licensee
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1 under this part. Notification of approval or denial of such
2 request shall be made within 90 days after receipt of such
3 request and all necessary documentation. Existing facilities
4 qualifying to provide limited nursing services shall have
5 maintained a standard license and may not have been subject to
6 administrative sanctions that affect the health, safety, and
7 welfare of residents for the previous 2 years or since initial
8 licensure if the facility has been licensed for less than 2
9 years.
10 2. Facilities that are licensed to provide limited
11 nursing services shall maintain a written progress report on
12 each person who receives such nursing services, which report
13 describes the type, amount, duration, scope, and outcome of
14 services that are rendered and the general status of the
15 resident's health. A registered nurse representing the agency
16 shall visit such facilities at least twice once a year to
17 monitor residents who are receiving limited nursing services
18 and to determine if the facility is in compliance with
19 applicable provisions of this part and with related rules. The
20 monitoring visits may be provided through contractual
21 arrangements with appropriate community agencies. A
22 registered nurse shall also serve as part of the team that
23 biennially inspects such facility.
24 3. A person who receives limited nursing services
25 under this part must meet the admission criteria established
26 by the agency for assisted living facilities. When a resident
27 no longer meets the admission criteria for a facility licensed
28 under this part, arrangements for relocating the person shall
29 be made in accordance with s. 400.428(1)(k), unless the
30 facility is licensed to provide extended congregate care
31 services.
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1 (4)(a) Each facility shall be assessed a bed fee of
2 $100 for each initial, renewal, and change-of-ownership
3 application processed, except that a bed fee may not be
4 assessed for any bed designated for recipients of optional
5 state supplementation payments. The fee for processing an
6 application, as described in this part, may not exceed
7 $10,000. The biennial license fee required of a facility is
8 $240 per license, with an additional fee of $30 per resident
9 based on the total licensed resident capacity of the facility,
10 except that no additional fee will be assessed for beds
11 designated for recipients of optional state supplementation
12 payments provided for in s. 409.212. The total fee may not
13 exceed $10,000, no part of which shall be returned to the
14 facility. The agency shall adjust the per bed license fee and
15 the total licensure fee annually by not more than the change
16 in the consumer price index based on the 12 months immediately
17 preceding the increase.
18 (b) In addition to the total fee assessed under
19 paragraph (a), the agency shall require facilities that are
20 licensed to provide extended congregate care services under
21 this part to pay an additional fee per licensed facility. The
22 amount of the biennial fee shall be $400 per license, no part
23 of which shall be returned to the facility. The agency may
24 adjust the annual license fee once each year by not more than
25 the average rate of inflation for the 12 months immediately
26 preceding the increase.
27 (c) In addition to the total fee assessed under
28 paragraph (a), the agency shall require facilities that are
29 licensed to provide limited nursing services under this part
30 to pay an additional fee per licensed facility. The amount of
31 the biennial fee shall be $200 per license, with an additional
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1 fee of $10 per resident based on the total licensed resident
2 capacity of the facility. The total biennial fee may not
3 exceed $2,000, no part of which shall be returned to the
4 facility. The agency may adjust the $200 biennial license fee
5 and the maximum total license fee once each year by not more
6 than the average rate of inflation for the 12 months
7 immediately preceding the increase.
8 Section 22. Paragraph (n) is added to subsection (1)
9 of section 400.414, Florida Statutes, and subsection (8) is
10 added to that section, to read:
11 400.414 Denial, revocation, or suspension of license;
12 imposition of administrative fine; grounds.--
13 (1) The agency may deny, revoke, or suspend any
14 license issued under this part, or impose an administrative
15 fine in the manner provided in chapter 120, for any of the
16 following actions by an assisted living facility, any person
17 subject to level 2 background screening under s. 400.4174, or
18 any facility employee:
19 (n) Any act constituting a ground upon which
20 application for a license may be denied.
21
22 Administrative proceedings challenging agency action under
23 this subsection shall be reviewed on the basis of the facts
24 and conditions that resulted in the agency action.
25 (8) The agency may issue a temporary license pending
26 final disposition of a proceeding involving the suspension or
27 revocation of an assisted living facility license.
28 Section 23. Subsections (1) and (6) of section
29 400.417, Florida Statutes, are amended to read:
30 400.417 Expiration of license; renewal; conditional
31 license.--
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1 (1) A standard license Biennial licenses, unless
2 sooner suspended or revoked, shall expire 2 years from the
3 date of issuance. Limited nursing, extended congregate care,
4 and limited mental health licenses shall expire 1 year after
5 the date of issuance at the same time as the facility's
6 standard license, regardless of when issued. The agency shall
7 notify the facility by certified mail at least 120 days prior
8 to expiration that a renewal license is necessary to continue
9 operation. Ninety days prior to the expiration date, an
10 application for renewal shall be submitted to the agency. Fees
11 must be prorated. The failure to file a timely renewal
12 application shall result in a late fee charged to the facility
13 in an amount equal to 50 percent of the current fee.
14 (6) When an extended care or limited nursing license
15 is requested during a facility's biennial license period, the
16 fee shall be prorated in order to permit the additional
17 license to expire at the end of the biennial license period.
18 The fee shall be calculated as of the date the additional
19 license application is received by the agency.
20 Section 24. Section 400.419, Florida Statutes, is
21 amended to read:
22 400.419 Violations; administrative fines.--
23 (1) Each violation of this part and adopted rules
24 shall be classified according to the nature of the violation
25 and the gravity of its probable effect on facility residents.
26 The agency shall indicate the classification on the written
27 notice of the violation as follows:
28 (a) Class "I" violations are those conditions or
29 occurrences related to the operation and maintenance of a
30 facility or to the personal care of residents which the agency
31 determines present an imminent danger to the residents or
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1 guests of the facility or a substantial probability that death
2 or serious physical or emotional harm would result therefrom.
3 The condition or practice constituting a class I violation
4 shall be abated or eliminated within 24 hours, unless a fixed
5 period, as determined by the agency, is required for
6 correction. A class I violation is subject to an
7 administrative fine in an amount not less than $5,000 $1,000
8 and not exceeding $10,000 for each violation. A fine may be
9 levied notwithstanding the correction of the violation.
10 (b) Class "II" violations are those conditions or
11 occurrences related to the operation and maintenance of a
12 facility or to the personal care of residents which the agency
13 determines directly threaten the physical or emotional health,
14 safety, or security of the facility residents, other than
15 class I violations. A class II violation is subject to an
16 administrative fine in an amount not less than $1,000 $500 and
17 not exceeding $5,000 for each violation. A citation for a
18 class II violation must shall specify the time within which
19 the violation is required to be corrected. If a class II
20 violation is corrected within the time specified, no fine may
21 be imposed, unless it is a repeated offense.
22 (c) Class "III" violations are those conditions or
23 occurrences related to the operation and maintenance of a
24 facility or to the personal care of residents which the agency
25 determines indirectly or potentially threaten the physical or
26 emotional health, safety, or security of facility residents,
27 other than class I or class II violations. A class III
28 violation is subject to an administrative fine of not less
29 than $500 $100 and not exceeding $1,000 for each violation. A
30 citation for a class III violation must shall specify the time
31 within which the violation is required to be corrected. If a
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1 class III violation is corrected within the time specified, no
2 fine may be imposed, unless it is a repeated offense.
3 (d) Class "IV" violations are those conditions or
4 occurrences related to the operation and maintenance of a
5 building or to required reports, forms, or documents that do
6 not have the potential of negatively affecting residents.
7 These violations are of a type that the agency determines do
8 not threaten the health, safety, or security of residents of
9 the facility. A facility that does not correct a class IV
10 violation within the time specified in the agency-approved
11 corrective action plan is subject to an administrative fine of
12 not less than $100 $50 nor more than $200 for each violation.
13 Any class IV violation that is corrected during the time an
14 agency survey is being conducted will be identified as an
15 agency finding and not as a violation.
16 (2) The agency may set and levy a fine not to exceed
17 $1,000 for each violation which cannot be classified according
18 to subsection (1). Such fines in the aggregate may not exceed
19 $10,000 per survey.
20 (2)(3) In determining if a penalty is to be imposed
21 and in fixing the amount of the fine, the agency shall
22 consider the following factors:
23 (a) The gravity of the violation, including the
24 probability that death or serious physical or emotional harm
25 to a resident will result or has resulted, the severity of the
26 action or potential harm, and the extent to which the
27 provisions of the applicable laws or rules were violated.
28 (b) Actions taken by the owner or administrator to
29 correct violations.
30 (c) Any previous violations.
31
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1 (d) The financial benefit to the facility of
2 committing or continuing the violation.
3 (e) The licensed capacity of the facility.
4 (3)(4) Each day of continuing violation after the date
5 fixed for termination of the violation, as ordered by the
6 agency, constitutes an additional, separate, and distinct
7 violation.
8 (4)(5) Any action taken to correct a violation shall
9 be documented in writing by the owner or administrator of the
10 facility and verified through followup visits by agency
11 personnel. The agency may impose a fine and, in the case of an
12 owner-operated facility, revoke or deny a facility's license
13 when a facility administrator fraudulently misrepresents
14 action taken to correct a violation.
15 (5)(6) For fines that are upheld following
16 administrative or judicial review, the violator shall pay the
17 fine, plus interest at the rate as specified in s. 55.03, for
18 each day beyond the date set by the agency for payment of the
19 fine.
20 (6)(7) Any unlicensed facility that continues to
21 operate after agency notification is subject to a $1,000 fine
22 per day. Each day beyond 5 working days after agency
23 notification constitutes a separate violation, and the
24 facility is subject to a fine of $500 per day.
25 (7)(8) Any licensed facility whose owner or
26 administrator concurrently operates an unlicensed facility
27 shall be subject to an administrative fine of $5,000 per day.
28 Each day that the unlicensed facility continues to operate
29 beyond 5 working days after agency notification constitutes a
30 separate violation, and the licensed facility shall be subject
31
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1 to a fine of $500 per day retroactive to the date of agency
2 notification.
3 (8)(9) Any facility whose owner fails to apply for a
4 change-of-ownership license in accordance with s. 400.412 and
5 operates the facility under the new ownership is subject to a
6 fine of not to exceed $5,000.
7 (9)(10) In addition to any administrative fines
8 imposed, the agency may assess a survey fee, equal to the
9 lesser of one half of the facility's biennial license and bed
10 fee or $500, to cover the cost of conducting initial complaint
11 investigations that result in the finding of a violation that
12 was the subject of the complaint or monitoring visits
13 conducted under s. 400.428(3)(c) to verify the correction of
14 the violations.
15 (10)(11) The agency, as an alternative to or in
16 conjunction with an administrative action against a facility
17 for violations of this part and adopted rules, shall make a
18 reasonable attempt to discuss each violation and recommended
19 corrective action with the owner or administrator of the
20 facility, prior to written notification. The agency, instead
21 of fixing a period within which the facility shall enter into
22 compliance with standards, may request a plan of corrective
23 action from the facility which demonstrates a good faith
24 effort to remedy each violation by a specific date, subject to
25 the approval of the agency.
26 (11)(12) Administrative fines paid by any facility
27 under this section shall be deposited into the Health Care
28 Trust Fund and expended as provided in s. 400.418.
29 (12)(13) The agency shall develop and disseminate an
30 annual list of all facilities sanctioned or fined $5,000 or
31 more for violations of state standards, the number and class
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1 of violations involved, the penalties imposed, and the current
2 status of cases. The list shall be disseminated, at no charge,
3 to the Department of Elderly Affairs, the Department of
4 Health, the Department of Children and Family Services, the
5 area agencies on aging, the Florida Statewide Advocacy
6 Council, and the state and local ombudsman councils. The
7 Department of Children and Family Services shall disseminate
8 the list to service providers under contract to the department
9 who are responsible for referring persons to a facility for
10 residency. The agency may charge a fee commensurate with the
11 cost of printing and postage to other interested parties
12 requesting a copy of this list.
13 Section 25. Section 400.423, Florida Statutes, is
14 created to read:
15 400.423 Internal risk-management and quality-assurance
16 program.--
17 (1) Each facility with a minimum of 26 beds shall, as
18 part of its administrative functions, establish an internal
19 risk-management and quality-assurance program, the purpose of
20 which is to assess resident-care practices; review facility
21 quality indicators, facility incident reports, deficiencies
22 cited by the agency, individual resident shared-risk
23 agreements as defined in s. 400.402, and resident grievances;
24 and develop plans of action to correct and respond quickly to
25 identified quality deficiencies. The program must include:
26 (a) A risk manager employed by the facility and
27 licensed under chapter 395 who is responsible for
28 implementation and oversight of the facility's internal
29 risk-management and quality-assurance program as required by
30 this section. A risk manager must not be made responsible for
31 more than four internal risk-management and quality-assurance
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1 programs in separate facilities licensed pursuant to chapter
2 400 or chapter 395. However, a risk manager may be made
3 responsible for as many as eight assisted living facilities
4 with a standard license if the risk manager is not responsible
5 for any other facilities licensed under this chapter or
6 chapter 395.
7 (b) A risk-management and quality-assurance committee
8 consisting of the facility risk manager, the administrator,
9 and at least three other members of the facility staff. The
10 risk-management and quality-assurance committee shall meet at
11 least monthly.
12 (c) Policies and procedures to implement the internal
13 risk-management and quality-assurance program, which must
14 include the investigation and analysis of the frequency and
15 causes of general categories and specific types of adverse
16 incidents to residents.
17 (d) The development of appropriate measures to
18 minimize the risk of adverse incidents to residents,
19 including, but not limited to, education and training in risk
20 management and risk prevention for all nonphysician personnel,
21 as follows:
22 1. Such education and training of all nonphysician
23 personnel shall be part of their initial orientation; and
24 2. At least 3 hours of such education and training
25 shall be provided annually for all nonphysician personnel of
26 the licensed facility working in clinical areas and providing
27 resident care.
28 (e) The analysis of resident grievances that relate to
29 resident care and the quality of clinical services.
30 (f) The development and implementation of an incident
31 reporting system based upon the affirmative duty of all health
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1 care providers and all agents and employees of the facility to
2 report adverse incidents to the risk manager.
3 (2) The internal risk-management and quality-assurance
4 program is the responsibility of the facility administrator.
5 (3) In addition to the programs mandated by this
6 section, other innovative approaches intended to reduce the
7 frequency and severity of adverse incidents to residents and
8 violations of residents' rights shall be encouraged and their
9 implementation and operation facilitated.
10 (4) Each internal risk-management and
11 quality-assurance program shall include the use of incident
12 reports to be filed with the risk manager and the facility
13 administrator. The risk manager shall have free access to all
14 resident records of the facility. The incident reports are
15 confidential as provided by law, are part of the workpapers of
16 the attorney defending the facility in litigation relating to
17 the facility, and are subject to discovery but are not
18 admissible as evidence in court. As a part of each internal
19 risk-management and quality-assurance program, the incident
20 reports shall be used to develop categories of incidents which
21 identify problem areas. Once identified, procedures shall be
22 adjusted to correct the problem areas.
23 (5) For purposes of reporting to the agency under this
24 section, the term "adverse incident" means:
25 (a) An event over which facility personnel could
26 exercise control and which is associated in whole or in part
27 with the facility's intervention, rather than the condition
28 for which such intervention occurred, and which results in one
29 of the following:
30 1. Death;
31 2. Brain or spinal damage;
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1 3. Permanent disfigurement;
2 4. Fracture or dislocation of bones or joints;
3 5. A resulting limitation of neurological, physical,
4 or sensory function;
5 6. Any condition that required medical attention to
6 which the resident has not given his or her informed consent,
7 including failure to honor advanced directives; or
8 7. Any condition that required the transfer of the
9 patient, within or outside the facility, to a unit providing a
10 more acute level of care due to the adverse incident rather
11 than to the resident's condition prior to the adverse
12 incident;
13 (b) Abuse, neglect, or exploitation, as defined in s.
14 415.102 or s. 39.01;
15 (c) Resident elopement; or
16 (d) An event that is reported to law enforcement.
17 (6) Every facility, regardless of the number of beds,
18 shall notify the agency within 1 business day after the
19 occurrence of an adverse incident. The notification must be
20 made in writing and be provided by facsimile device or
21 overnight mail delivery. The notification must include
22 information regarding the identity of the affected resident,
23 the type of adverse incident, the initiation of an
24 investigation by the facility, and whether the events causing
25 or resulting in the adverse incident represent a potential
26 risk to any other resident. The notification is confidential
27 as provided by law and is not discoverable or admissible in
28 any civil or administrative action, except in disciplinary
29 proceedings by the agency or the appropriate regulatory board.
30 The agency may investigate, as it deems appropriate, any such
31 incident and prescribe measures that must or may be taken in
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1 response to the incident. The agency shall review each
2 incident and determine whether it potentially involved conduct
3 by the health care professional who is subject to disciplinary
4 action, in which case the provisions of s. 456.073 shall
5 apply.
6 (7)(a) Every facility, regardless of the number of
7 beds, shall submit an adverse-incident report to the agency
8 for each adverse incident within 15 calendar days after its
9 occurrence on a form developed by the agency. The Department
10 of Elderly Affairs shall have access to such reports as it
11 deems appropriate.
12 (b) The information reported to the agency pursuant to
13 paragraph (a) which relates to persons licensed under chapter
14 458, chapter 459, chapter 461, or chapter 466 shall be
15 reviewed by the agency. The agency shall determine whether any
16 of the incidents potentially involved conduct by a health care
17 professional who is subject to disciplinary action, in which
18 case the provisions of s. 456.073 shall apply.
19 (c) The report submitted to the agency must also
20 contain the name and license number of the risk manager, if
21 applicable, of the licensed facility.
22 (d) The adverse-incident report is confidential as
23 provided by law and is not discoverable or admissible in any
24 civil or administrative action, except in disciplinary
25 proceedings by the agency or the appropriate regulatory board.
26 (8) Each facility subject to this section shall report
27 monthly any liability claim files against it. The report must
28 include the name of the resident, the date or dates of the
29 incident leading to the claim, and the type of injury or
30 violation of rights alleged to have occurred.
31
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1 (9) The internal risk manager or administrator of each
2 facility shall:
3 (a) Investigate every allegation of sexual misconduct
4 which is made against a member of the facility's personnel who
5 has direct resident contact if it is alleged that the sexual
6 misconduct occurred at the facility or on the grounds of the
7 facility;
8 (b) If the allegation is investigated by the internal
9 risk manager, report the allegation of sexual misconduct to
10 the administrator of the facility; and
11 (c) Notify the resident representative or guardian of
12 the victim that an allegation of sexual misconduct has been
13 made and that an investigation is being conducted.
14 (10)(a) Any witness who witnessed or who possesses
15 actual knowledge of the act that is the basis of an allegation
16 of sexual abuse shall notify:
17 1. The local law enforcement agency;
18 2. The central abuse hotline of the Department of
19 Children and Family Services; and
20 3. The risk manager, if applicable, and the
21 administrator.
22 (b) As used in this subsection, the term "sexual
23 abuse" means acts of a sexual nature committed for the sexual
24 gratification of anyone upon, or in the presence of, a
25 vulnerable adult, without the vulnerable adult's informed
26 consent, or a minor. The term includes, but is not limited to,
27 the acts defined in s. 794.011(1)(h), fondling, exposure of a
28 vulnerable adult's or minor's sexual organs, or the use of the
29 vulnerable adult or minor to solicit for or engage in
30 prostitution or sexual performance. The term does not include
31
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1 any act intended for a valid medical purpose or any act that
2 may reasonably be construed to be a normal caregiving action.
3 (11) The agency shall review, as part of its licensure
4 inspection process, the internal risk-management and
5 quality-assurance program at each facility regulated by this
6 section to determine whether the program meets standards
7 established in statutory laws and rules, is being conducted in
8 a manner designed to reduce adverse incidents, and is
9 appropriately reporting incidents as required by this section.
10 (12) There is no monetary liability on the part of,
11 and a cause of action for damages may not arise against, any
12 risk manager licensed under chapter 395 for the implementation
13 and oversight of the internal risk-management and
14 quality-assurance program in a facility licensed under this
15 part as required by this section, or for any act or proceeding
16 undertaken or performed within the scope of the functions of
17 such internal risk-management and quality-assurance program if
18 the risk manager acts without intentional fraud.
19 (13) If the agency, through its receipt of the adverse
20 incident reports prescribed in subsection (7), or through any
21 investigation, has a reasonable belief that conduct by a staff
22 member or employee of a facility is grounds for disciplinary
23 action by the appropriate regulatory board, the agency shall
24 report this fact to the regulatory board.
25 (14) The agency shall annually submit to the
26 Legislature a report on assisted living facility internal risk
27 management. The report must include the following information
28 arrayed by county:
29 (a) The total number of adverse incidents.
30
31
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1 (b) A listing, by category, of the types of adverse
2 incidents, the number of incidents occurring within each
3 category, and the type of staff involved.
4 (c) A listing, by category, of the types of injury
5 caused and the number of injuries occurring within each
6 category.
7 (d) Types of liability claims filed based on an
8 adverse incident or reportable injury.
9 (e) Disciplinary action taken against staff,
10 categorized by type of staff involved.
11 Section 26. Present subsections (7), (8), (9), (10),
12 and (11) of section 400.426, Florida Statutes, are
13 redesignated as subsections (8), (9), (10), (11), and (12),
14 respectively, and a new subsection (7) is added to that
15 section, to read:
16 400.426 Appropriateness of placements; examinations of
17 residents.--
18 (7) Any resident who exhibits signs of dementia or
19 cognitive impairment must be examined by a licensed physician
20 to rule out the presence of an underlying physiological
21 condition that may be contributing to such dementia or
22 impairment. The examination must occur within 7 days after the
23 admission of a resident to the facility or within 7 days after
24 the acknowledgement of such signs by facility staff. The
25 facility must notify the resident's designee or legal
26 representative prior to the examination. If an underlying
27 condition is determined to exist, the facility shall arrange
28 for necessary care and services to treat the condition.
29 Section 27. Subsection (3) of section 400.428, Florida
30 Statutes, is amended to read:
31 400.428 Resident bill of rights.--
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1 (3)(a) The agency shall conduct a survey to determine
2 general compliance with facility standards and compliance with
3 residents' rights as a prerequisite to initial licensure or
4 licensure renewal.
5 (b) In order to determine whether the facility is
6 adequately protecting residents' rights, the licensure
7 biennial survey shall include private informal conversations
8 with a sample of residents and consultation with the ombudsman
9 council in the planning and service area in which the facility
10 is located to discuss residents' experiences within the
11 facility.
12 (c) During any calendar year in which no standard
13 licensure survey is conducted, the agency shall conduct at
14 least one monitoring visit of each facility cited in the
15 previous year for a class I or class II violation, or more
16 than three uncorrected class III violations.
17 (d) The agency may conduct periodic followup
18 inspections as necessary to monitor the compliance of
19 facilities with a history of any class I, class II, or class
20 III violations that threaten the health, safety, or security
21 of residents.
22 (e) The agency may conduct complaint investigations as
23 warranted to investigate any allegations of noncompliance with
24 requirements required under this part or rules adopted under
25 this part.
26 Section 28. Effective October 1, 2001, and applicable
27 to causes of action accruing on or after that date, section
28 400.4303, Florida Statutes, is created to read:
29 400.4303 Copies forwarded to state attorney.--In any
30 action in which punitive damages are awarded, notwithstanding
31 any appeals, the Clerk of the Court shall forward to the state
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1 attorney of that circuit a copy of the complaint, any amended
2 complaints, the verdict form, and the final judgment.
3 Section 29. Subsection (2) of section 400.435, Florida
4 Statutes, is amended to read:
5 400.435 Maintenance of records; reports.--
6 (2) Within 60 days after the date of a licensure the
7 biennial inspection visit or within 30 days after the date of
8 any interim visit, the agency shall forward the results of the
9 inspection to the local ombudsman council in whose planning
10 and service area, as defined in part II, the facility is
11 located; to at least one public library or, in the absence of
12 a public library, the county seat in the county in which the
13 inspected assisted living facility is located; and, when
14 appropriate, to the district Adult Services and Mental Health
15 Program Offices.
16 Section 30. Paragraph (h) of subsection (1) and
17 subsection (4) of section 400.441, Florida Statutes, are
18 amended to read:
19 400.441 Rules establishing standards.--
20 (1) It is the intent of the Legislature that rules
21 published and enforced pursuant to this section shall include
22 criteria by which a reasonable and consistent quality of
23 resident care and quality of life may be ensured and the
24 results of such resident care may be demonstrated. Such rules
25 shall also ensure a safe and sanitary environment that is
26 residential and noninstitutional in design or nature. It is
27 further intended that reasonable efforts be made to
28 accommodate the needs and preferences of residents to enhance
29 the quality of life in a facility. In order to provide safe
30 and sanitary facilities and the highest quality of resident
31 care accommodating the needs and preferences of residents, the
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1 department, in consultation with the agency, the Department of
2 Children and Family Services, and the Department of Health,
3 shall adopt rules, policies, and procedures to administer this
4 part, which must include reasonable and fair minimum standards
5 in relation to:
6 (h) The care and maintenance of residents, which must
7 include, but is not limited to:
8 1. The supervision of residents;
9 2. The provision of personal services;
10 3. The provision of, or arrangement for, social and
11 leisure activities;
12 4. The arrangement for appointments and transportation
13 to appropriate medical, dental, nursing, or mental health
14 services, as needed by residents;
15 5. The management of medication;
16 6. The nutritional needs of residents; and
17 7. Resident records; and.
18 8. Internal risk management and quality assurance.
19 (4) The agency may use an abbreviated biennial
20 standard licensure inspection that which consists of a review
21 of key quality-of-care standards in lieu of a full inspection
22 in facilities which have a good record of past performance.
23 However, a full inspection shall be conducted in facilities
24 which have had a history of class I or class II violations,
25 uncorrected class III violations, confirmed ombudsman council
26 complaints, or confirmed licensure complaints, within the
27 previous licensure period immediately preceding the inspection
28 or when a potentially serious problem is identified during the
29 abbreviated inspection. The agency, in consultation with the
30 department, shall develop the key quality-of-care standards
31 with input from the State Long-Term Care Ombudsman Council and
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1 representatives of provider groups for incorporation into its
2 rules. Beginning on or before March 1, 1991, The department,
3 in consultation with the agency, shall report annually to the
4 Legislature concerning its implementation of this subsection.
5 The report shall include, at a minimum, the key
6 quality-of-care standards which have been developed; the
7 number of facilities identified as being eligible for the
8 abbreviated inspection; the number of facilities which have
9 received the abbreviated inspection and, of those, the number
10 that were converted to full inspection; the number and type of
11 subsequent complaints received by the agency or department on
12 facilities which have had abbreviated inspections; any
13 recommendations for modification to this subsection; any plans
14 by the agency to modify its implementation of this subsection;
15 and any other information which the department believes should
16 be reported.
17 Section 31. Section 400.442, Florida Statutes, is
18 amended to read:
19 400.442 Pharmacy and dietary services.--
20 (1) Any assisted living facility in which the agency
21 has documented a class I or class II deficiency or uncorrected
22 class III deficiencies regarding medicinal drugs or
23 over-the-counter preparations, including their storage, use,
24 delivery, or administration, or dietary services, or both,
25 during a licensure biennial survey or a monitoring visit or an
26 investigation in response to a complaint, shall, in addition
27 to or as an alternative to any penalties imposed under s.
28 400.419, be required to employ the consultant services of a
29 licensed pharmacist, a licensed registered nurse, or a
30 registered or licensed dietitian, as applicable. The
31 consultant shall, at a minimum, provide onsite quarterly
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1 consultation until the inspection team from the agency
2 determines that such consultation services are no longer
3 required.
4 (2) A corrective action plan for deficiencies related
5 to assistance with the self-administration of medication or
6 the administration of medication must be developed and
7 implemented by the facility within 48 hours after notification
8 of such deficiency, or sooner if the deficiency is determined
9 by the agency to be life-threatening.
10 (3) The agency shall employ at least two pharmacists
11 licensed pursuant to chapter 465 among its personnel who
12 biennially inspect assisted living facilities licensed under
13 this part, to participate in licensure biennial inspections or
14 consult with the agency regarding deficiencies relating to
15 medicinal drugs or over-the-counter preparations.
16 (4) The department may by rule establish procedures
17 and specify documentation as necessary to administer implement
18 this section.
19 Section 32. Section 400.449, Florida Statutes, is
20 created to read:
21 400.449 Resident records; penalties for alteration.--
22 (1) Any person who fraudulently alters, defaces, or
23 falsifies any medical or other record of an assisted living
24 facility, or causes or procures any such offense to be
25 committed, commits a misdemeanor of the second degree,
26 punishable as provided in s. 775.082 or s. 775.083.
27 (2) A conviction under subsection (1) is also grounds
28 for restriction, suspension, or termination of license
29 privileges.
30 Section 33. Subsection (1) of section 464.201, Florida
31 Statutes, is amended to read:
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1 464.201 Definitions.--As used in this part, the term:
2 (1) "Approved training program" means:
3 (a) A course of training conducted by a public sector
4 or private sector educational center licensed by the
5 Department of Education to implement the basic curriculum for
6 nursing assistants which is approved by the Department of
7 Education. Beginning October 1, 2000, the board shall assume
8 responsibility for approval of training programs under this
9 paragraph.
10 (b) A training program operated under s. 400.141.
11 (c) A nursing assistant training program developed
12 under the Enterprise Florida Jobs and Education Partnership
13 Grant.
14 Section 34. Section 464.203, Florida Statutes, is
15 amended to read:
16 464.203 Certified nursing assistants; certification
17 requirement.--
18 (1) The board shall issue a certificate to practice as
19 a certified nursing assistant to any person who demonstrates a
20 minimum competency to read and write and successfully passes
21 the required Level I or Level II screening pursuant to s.
22 400.215 and meets one of the following requirements:
23 (a) Has successfully completed an approved training
24 program and achieved a minimum score, established by rule of
25 the board, on the nursing assistant competency examination,
26 which consists of a written portion and skills-demonstration
27 portion approved by the board and administered at a site and
28 by personnel approved by the department.
29 (b) Has achieved a minimum score, established by rule
30 of the board, on the nursing assistant competency examination,
31 which consists of a written portion and skills-demonstration
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1 portion, approved by the board and administered at a site and
2 by personnel approved by the department and:
3 1. Has a high school diploma, or its equivalent; or
4 2. Is at least 18 years of age.
5 (c) Is currently certified in another state; is listed
6 on that state's certified nursing assistant registry; and has
7 not been found to have committed abuse, neglect, or
8 exploitation in that state.
9 (d) Has completed the curriculum developed under the
10 Enterprise Florida Jobs and Education Partnership Grant and
11 achieved a minimum score, established by rule of the board, on
12 the nursing assistant competency examination, which consists
13 of a written portion and skills-demonstration portion,
14 approved by the board and administered at a site and by
15 personnel approved by the department.
16 (2) If an applicant fails to pass the nursing
17 assistant competency examination in three attempts, the
18 applicant is not eligible for reexamination unless the
19 applicant completes an approved training program.
20 (3) An oral examination shall be administered as a
21 substitute for the written portion of the examination upon
22 request. The oral examination shall be administered at a site
23 and by personnel approved by the department.
24 (4) The board shall adopt rules to provide for the
25 initial certification of certified nursing assistants.
26 (5) Certification as a nursing assistant, in
27 accordance with this part, continues in effect until such time
28 as the nursing assistant allows a period of 24 consecutive
29 months to pass during which period the nursing assistant fails
30 to perform any nursing-related services for monetary
31 compensation. When a nursing assistant fails to perform any
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1 nursing-related services for monetary compensation for a
2 period of 24 consecutive months, the nursing assistant must
3 complete a new training and competency evaluation program or a
4 new competency evaluation program.
5 (6)(5) A certified nursing assistant shall maintain a
6 current address with the board in accordance with s. 456.035.
7 (7) A certified nursing assistant must complete a
8 minimum of 18 hours of continuing education during each
9 calendar year of certification. Continuing education must
10 include training in assisting and responding to individuals
11 who are cognitively impaired or who exhibit difficult
12 behaviors.
13 Section 35. Subsection (2) of section 397.405, Florida
14 Statutes, is amended to read:
15 397.405 Exemptions from licensure.--The following are
16 exempt from the licensing provisions of this chapter:
17 (2) A nursing home facility as defined in s. 400.021
18 s. 400.021(12).
19
20 The exemptions from licensure in this section do not apply to
21 any facility or entity which receives an appropriation, grant,
22 or contract from the state to operate as a service provider as
23 defined in this chapter or to any substance abuse program
24 regulated pursuant to s. 397.406. No provision of this
25 chapter shall be construed to limit the practice of a
26 physician licensed under chapter 458 or chapter 459, a
27 psychologist licensed under chapter 490, or a psychotherapist
28 licensed under chapter 491, providing outpatient or inpatient
29 substance abuse treatment to a voluntary patient, so long as
30 the physician, psychologist, or psychotherapist does not
31 represent to the public that he or she is a licensed service
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1 provider under this act. Failure to comply with any
2 requirement necessary to maintain an exempt status under this
3 section is a misdemeanor of the first degree, punishable as
4 provided in s. 775.082 or s. 775.083.
5 Section 36. The Agency for Health Care Administration
6 shall require that a portion of each nursing facility's
7 Medicaid rate be used exclusively for wage and benefit
8 increases for nursing home direct care staff. Such funds shall
9 be used only for actual wage or benefit improvements. Eligible
10 staff members include all direct care workers (including RNs,
11 LPNs and CNAs), and all dietary, housekeeping, laundry, and
12 maintenance workers. Temporary, contract, agency, and pool
13 employees are excluded. The agency shall develop
14 cost-reporting systems to ensure that the funds the agency has
15 required to be used for wage and benefit increases for direct
16 care staff are used for this purpose. On January 1 of each
17 year, the agency shall report to the Legislature the effect of
18 such wage and benefit increases for employees in nursing
19 facilities in this state.
20 Section 37. The sum of $______ is appropriated from
21 the General Revenue Fund to the Agency for Health Care
22 Administration for the purpose of implementing the provisions
23 of this act during the 2001-2002 fiscal year.
24 Section 38. The sum of $948,782 is appropriated from
25 the General Revenue Fund to the Department of Elderly Affairs
26 for the purpose of paying the salaries and other
27 administrative expenses of the Office of State Long-Term Care
28 Ombudsman to carry out the provisions of this act during the
29 2001-2002 fiscal year.
30 Section 39. If any provision of this act or its
31 application to any person or circumstance is held invalid, the
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1 invalidity does not affect other provisions or applications of
2 the act which can be given effect without the invalid
3 provision or application, and to this end the provisions of
4 this act are severable.
5 Section 40. Except as otherwise expressly provided in
6 this act, this act shall take effect upon becoming a law.
7
8 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
9 Senate Bill 1202
10
11 The committee substitute removes provisions pertaining to
civil actions against nursing homes and assisted living
12 facilities based on residents rights, abuse, neglect or
exploitation; changes requirements for resident care plans;
13 removes provisions relating to shared-risk agreements in
nursing homes and assisted living facilities; allows use of
14 electronic monitoring devices in resident's rooms in nursing
facilities, provides standards for the use of such devices,
15 provides for the admissibility of tapes so created in civil
and criminal actions and provides penalties for hampering use
16 of or tampering with monitoring devices; clarifies provisions
relating to resident transfers and discharges; requires
17 submission of quality assurance and risk management plans as a
condition of licensure for nursing homes; requires action on
18 the part of a facility to ensure that residents with mental,
psychosocial or adjustment difficulty, dementia or cognitive
19 impairment receive appropriate treatment; requires nursing
homes and assisted living facilities to report liability
20 claims filed against them to the Agency for Health Care
Administration; requires specialized training for individuals
21 employed by facilities who provide care for residents with
Alzheimer' disease; requires publication and posting of a
22 "Nursing Home Guide Watch List"; allows inclusion of CNAs who
are awaiting certification in staffing counts only if they are
23 providing services on a full-time basis; requires documenting
of compliance with staffing standards and posting of staff
24 rosters; incrementally increases minimum staffing requirements
for nursing homes over the next 4 years; revises requirements
25 for the Gold Seal Program; requires development of a nursing
home grading system; removes a requirement to establish an
26 in-house pool of receivers at the Agency for Health Care
Administration; removes the ability of the agency to levy a
27 fine for an unclassified violation in assisted living
facilities; removes a requirement for a study of the effects
28 of the bill on liability judgments; requires the Agency for
Health Care Administration to require that a portion of each
29 nursing facility's Medicaid rate be used exclusively for wage
and benefit increases for nursing home direct care staff; and
30 provides an appropriation for the long-term care ombudsman
program.
31
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