Senate Bill sb1202c3

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    Florida Senate - 2001             CS for CS for CS for SB 1202

    By the Committees on Appropriations; Judiciary; Health, Aging
    and Long-Term Care; and Senator Brown-Waite




    309-1899A-01

  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; amending

18         s. 400.023, F.S.; providing for election of

19         survival damages, wrongful death damages, or

20         recovery for negligence; providing for

21         attorney's fees for injunctive relief or

22         administrative remedy; providing that ch. 766,

23         F.S., does not apply to actions under this

24         section; providing burden of proof; providing

25         that a violation of a right is not negligence

26         per se; prescribing the duty of care;

27         prescribing a nurse's duty of care; eliminating

28         presuit provisions; eliminating the requirement

29         for presuit mediation; creating s. 400.0233,

30         F.S; providing for presuit notice; prohibiting

31         the filing of suit for a specified time;

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  1         requiring a response to the notice; tolling the

  2         statute of limitations; limiting discovery of

  3         presuit investigation documents; limiting

  4         liability of presuit investigation

  5         participants; authorizing the obtaining of

  6         opinions from a nurse or doctor; authorizing

  7         the obtaining of unsworn statements;

  8         authorizing discovery of relevant documents;

  9         prescribing the time for acceptance of

10         settlement offers; requiring mediation;

11         prescribing the time to file suit; creating s.

12         400.0234, F.S.; requiring the availability of

13         facility records for presuit investigation;

14         specifying the records to be made available;

15         specifying what constitutes evidence of failure

16         to make records available in good faith;

17         specifying the consequences of such failure;

18         creating s. 400.0235, F.S.; providing that the

19         provisions of s. 768.21(8), F.S., do not apply

20         to actions under part II of ch. 400, F.S.;

21         creating s. 400.0236, F.S.; providing a statute

22         of limitations; providing a statute of

23         limitations when there is fraudulent

24         concealment or intentional misrepresentation of

25         fact; providing for application of the statute

26         of limitation to accrued actions; creating s.

27         400.0237, F.S.; requiring evidence of the basis

28         for punitive damages; prohibiting discovery

29         relating to financial worth; providing for

30         proof of punitive damages; defining the terms

31         "intentional misconduct" and "gross

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  1         negligence"; prescribing criteria governing

  2         employers' liability for punitive damages;

  3         providing for the remedial nature of

  4         provisions; creating s. 400.0238, F.S.;

  5         prescribing limits on the amount of punitive

  6         damages; providing for the calculation of

  7         attorney's fees; amending s. 768.735, F.S.;

  8         providing that the section is inapplicable to

  9         actions brought under ch. 400, F.S.; amending

10         s. 415.1111, F.S.; limiting actions against

11         nursing homes and assisted living facilities;

12         creating s. 400.0247, F.S.; requiring that

13         copies of certain documents be forwarded to the

14         state attorney if punitive damages are awarded;

15         amending s. 400.0255, F.S.; providing for

16         applicability of provisions relating to

17         transfer or discharge of nursing home

18         residents; amending s. 400.062, F.S.;

19         increasing the bed license fee for nursing home

20         facilities; amending s. 400.071, F.S.; revising

21         license application requirements; requiring

22         certain disclosures; authorizing the Agency for

23         Health Care Administration to issue an inactive

24         license; requiring quality assurance and

25         risk-management plans; amending s. 400.102,

26         F.S.; providing additional grounds for action

27         by the agency against a licensee; amending s.

28         400.111, F.S.; prohibiting renewal of a license

29         if an applicant has failed to pay certain

30         fines; requiring licensees to disclose

31         financial or ownership interests in certain

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  1         entities; authorizing placing fines in escrow;

  2         amending s. 400.118, F.S.; revising duties of

  3         quality-of-care monitors in nursing facilities;

  4         amending s. 400.121, F.S.; specifying

  5         additional circumstances under which the agency

  6         may deny, revoke, or suspend a facility's

  7         license or impose a fine; authorizing placing

  8         fines in escrow; specifying facts and

  9         conditions upon which administrative actions

10         that are challenged must be reviewed; amending

11         s. 400.126, F.S.; requiring an assessment of

12         residents in nursing homes under receivership;

13         providing for alternative care for qualified

14         residents; amending s. 400.141, F.S.; providing

15         additional administrative and management

16         requirements for licensed nursing home

17         facilities; requiring a facility to submit

18         information on staff-to-resident ratios, staff

19         turnover, and staff stability; requiring that

20         certain residents be examined by a licensed

21         physician; providing requirements for dining

22         and hospitality attendants; requiring

23         additional reports to the agency; requiring

24         minimum amounts of liability insurance

25         coverage; creating s. 400.1413, F.S.;

26         authorizing nursing homes to impose certain

27         requirements on volunteers; creating s.

28         400.147, F.S.; requiring each licensed nursing

29         home facility to establish an internal risk

30         management and quality assurance program;

31         providing requirements of the program;

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  1         requiring the use of incident reports; defining

  2         the term "adverse incident"; requiring that the

  3         agency be notified of adverse incidents;

  4         requiring reporting of liability claims;

  5         specifying duties of the internal risk manager;

  6         requiring the reporting of sexual abuse;

  7         limiting the liability of a risk manager;

  8         requiring that the agency report certain

  9         conduct to the appropriate regulatory board;

10         requiring that the agency annually report to

11         the Legislature on the internal risk management

12         of nursing homes; creating s. 400.148, F.S.;

13         providing for a pilot project to coordinate

14         resident quality of care through the use of

15         medical personnel to monitor patients;

16         providing purpose; providing for appointment of

17         guardians; creating s. 400.1755, F.S.;

18         prescribing training standards for employees of

19         nursing homes that provide care for persons

20         with Alzheimer's disease or related disorders;

21         prescribing duties of the Department of Elderly

22         Affairs; amending s. 400.19, F.S.; providing

23         for inspections; amending s. 400.191, F.S.;

24         requiring the agency to publish a Nursing Home

25         Guide Watch List; specifying contents of the

26         watch list; specifying distribution of the

27         watch list; requiring that nursing homes post

28         certain additional information; amending s.

29         400.211, F.S.; revising employment requirements

30         for nursing assistants; requiring in-service

31         training; amending s. 400.23, F.S.; revising

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  1         minimum staffing requirements for nursing

  2         homes; requiring the documentation and posting

  3         of compliance with such standards; requiring

  4         correction of deficiencies prior to change in

  5         conditional status; providing definitions of

  6         deficiencies; adjusting the fines imposed for

  7         certain deficiencies; amending s. 400.235,

  8         F.S.; revising requirements for the Gold Seal

  9         Program; creating s. 400.275, F.S.; providing

10         for training of nursing-home survey teams;

11         amending s. 400.407, F.S.; revising certain

12         licensing requirements; providing for the

13         biennial license fee to be based on number of

14         beds; amending s. 400.414, F.S.; specifying

15         additional circumstances under which the Agency

16         for Health Care Administration may deny,

17         revoke, or suspend a license; providing for

18         issuance of a temporary license; amending s.

19         400.417, F.S.; providing for a standard

20         license; amending s. 400.419, F.S.; increasing

21         the fines imposed for certain violations;

22         creating s. 400.423, F.S.; requiring certain

23         assisted living facilities to establish an

24         internal risk management and quality assurance

25         program; providing requirements of the program;

26         requiring the use of incident reports; defining

27         the term "adverse incident"; requiring that the

28         agency be notified of adverse incidents;

29         requiring reporting of liability claims;

30         specifying duties of the internal risk manager;

31         requiring that the agency report certain

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  1         conduct to the appropriate regulatory board;

  2         requiring that the agency annually report to

  3         the Legislature on the internal risk management

  4         of assisted living facilities; amending s.

  5         400.426, F.S.; requiring that certain residents

  6         be examined by a licensed physician; amending

  7         s. 400.4275, F.S.; specifying minimum amounts

  8         of liability insurance required to be carried

  9         by an assisted living facility; amending s.

10         400.428, F.S.; revising requirements for the

11         survey conducted of licensed facilities by the

12         agency; amending s. 400.429, F.S.; providing

13         for election of survival damages, wrongful

14         death damages, or recovery for negligence;

15         providing for attorney's fees for injunctive

16         relief or administrative remedy; providing that

17         ch. 766, F.S., does not apply to actions under

18         this section; prescribing the burden of proof;

19         providing that a violation of a right is not

20         negligence per se; prescribing the duty of

21         care; prescribing a nurse's duty of care;

22         eliminating presuit provisions; eliminating the

23         requirement for presuit mediation; creating s.

24         400.4293, F.S; providing for presuit notice;

25         prohibiting the filing of suit for a specified

26         time; requiring a response to the notice;

27         tolling the statute of limitations; limiting

28         the discovery of presuit investigation

29         documents; limiting liability of presuit

30         investigation participants; authorizing the

31         obtaining of opinions from a nurse or doctor;

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  1         authorizing the obtaining of unsworn

  2         statements; authorizing discovery of relevant

  3         documents; prescribing a time for acceptance of

  4         settlement offers; requiring mediation;

  5         prescribing the time to file suit; creating s.

  6         400.4294, F.S.; requiring the availability of

  7         facility records for presuit investigation;

  8         specifying the records to be made available;

  9         specifying what constitutes evidence of failure

10         to make records available in good faith;

11         specifying the consequences of such failure;

12         creating s. 400.4295, F.S.; providing that the

13         provisions of s. 768.21(8), F.S., do not apply

14         to actions under part III of ch. 400, F.S.;

15         creating s. 400.4296, F.S.; providing a statute

16         of limitations; providing a statute of

17         limitations when there is fraudulent

18         concealment or intentional misrepresentation of

19         fact; providing for application of the statute

20         of limitation to accrued actions; creating s.

21         400.4297, F.S.; requiring evidence of the basis

22         for punitive damages; prohibiting discovery

23         relating to financial worth; providing for

24         proof of punitive damages; defining the terms

25         "intentional misconduct" and "gross

26         negligence"; prescribing criteria governing

27         employers' liability for punitive damages;

28         providing for the remedial nature of

29         provisions; creating s. 400.4298, F.S.;

30         providing limits on the amount of punitive

31         damages; providing for the calculation of

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  1         attorney's fees; creating s. 400.4303, F.S.;

  2         requiring that copies of certain documents be

  3         forwarded to the state attorney if punitive

  4         damages are awarded; amending s. 400.434, F.S.;

  5         authorizing the Agency for Health Care

  6         Administration to use information obtained by

  7         certain councils; amending s. 400.435, F.S.,

  8         relating to maintenance of records; conforming

  9         provisions to changes made by the act; amending

10         s. 400.441, F.S.; clarifying facility

11         inspection requirements; amending s. 400.442,

12         F.S., relating to pharmacy and dietary

13         services; conforming provisions to changes made

14         by the act; creating s. 400.449, F.S.;

15         prohibiting the alteration or falsification of

16         medical or other records of an assisted living

17         facility; providing penalties; amending s.

18         464.203, F.S.; revising certification

19         requirements for nursing assistants;

20         authorizing employment of certain nursing

21         assistants pending certification; requiring

22         continuing education; amending s. 397.405,

23         F.S., relating to service providers; conforming

24         provisions to changes made by the act;

25         prohibiting the issuance of a certificate of

26         need for additional nursing home beds;

27         providing intent for such prohibition;

28         reenacting s. 400.0255(3), (8), F.S., relating

29         to discharge or transfer of residents;

30         reenacting s. 400.23(5), F.S., relating to

31         rules for standards of care for persons under a

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  1         specified age residing in nursing home

  2         facilities; reenacting s. 400.191(2), (6),

  3         F.S., relating to requirements for providing

  4         information to consumers; reenacting s.

  5         400.0225, F.S., relating to consumer

  6         satisfaction surveys for nursing homes;

  7         reenacting s. 400.141(4), (5), F.S., relating

  8         to the repackaging of residents' medication and

  9         access to other health-related services;

10         reenacting s. 400.235(3)(a), (4), (9), F.S.,

11         relating to designation under the nursing home

12         Gold Seal Program; reenacting s. 400.962(1),

13         F.S., relating to the requirement for licensure

14         under pt. IX of ch. 400, F.S.; reenacting s. 10

15         of ch. 2000-350, Laws of Florida, relating to

16         requirements for a study of the use of

17         automated medication-dispensing machines in

18         nursing facilities and for demonstration

19         projects and a report; amending s. 627.351,

20         F.S.; creating the Senior Care Facility Joint

21         Underwriting Association; defining the term

22         "senior care facility"; requiring that the

23         association operate under a plan approved by

24         the Department of Insurance; requiring that

25         certain insurers participate in the

26         association; providing for a board of governors

27         appointed by the Insurance Commissioner to

28         administer the association; providing for terms

29         of office; providing requirements for the plan

30         of operation of the association; requiring that

31         insureds of the association have a

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  1         risk-management program; providing procedures

  2         for offsetting an underwriting deficit;

  3         providing for assessments to offset a deficit;

  4         providing that a participating insurer has a

  5         cause of action against a nonpaying insurer to

  6         collect an assessment; requiring the department

  7         to review and approve rate filings of the

  8         association; providing appropriations;

  9         providing for severability; providing effective

10         dates.

11

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

13

14         Section 1.  Subsection (4) of section 400.0073, Florida

15  Statutes, is amended to read:

16         400.0073  State and local ombudsman council

17  investigations.--

18         (4)  In addition to any specific investigation made

19  pursuant to a complaint, the local ombudsman council shall

20  conduct, at least annually, an investigation, which shall

21  consist, in part, of an onsite administrative inspection, of

22  each nursing home or long-term care facility within its

23  jurisdiction. This inspection shall focus on the rights,

24  health, safety, and welfare of the residents.

25         Section 2.  Section 400.021, Florida Statutes, is

26  amended to read:

27         400.021  Definitions.--When used in this part, unless

28  the context otherwise requires, the term:

29         (1)  "Administrator" means the licensed individual who

30  has the general administrative charge of a facility.

31

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  1         (2)  "Agency" means the Agency for Health Care

  2  Administration, which is the licensing agency under this part.

  3         (3)  "Bed reservation policy" means the number of

  4  consecutive days and the number of days per year that a

  5  resident may leave the nursing home facility for overnight

  6  therapeutic visits with family or friends or for

  7  hospitalization for an acute condition before the licensee may

  8  discharge the resident due to his or her absence from the

  9  facility.

10         (4)  "Board" means the Board of Nursing Home

11  Administrators.

12         (5)  "Controlling interest" means:

13         (a)  The applicant for licensure or a licensee;

14         (b)  A person or entity that serves as an officer of,

15  is on the board of directors of, or has a 5 percent or greater

16  ownership interest in the management company or other entity,

17  related or unrelated, which the applicant or licensee may

18  contract with to operate the facility; or

19         (c)  A person or entity that serves as an officer of,

20  is on the board of directors of, or has a 5 percent or greater

21  ownership interest in the applicant or licensee.

22

23  The term does not include a voluntary board member.

24         (6)(5)  "Custodial service" means care for a person

25  which entails observation of diet and sleeping habits and

26  maintenance of a watchfulness over the general health, safety,

27  and well-being of the aged or infirm.

28         (7)(6)  "Department" means the Department of Children

29  and Family Services.

30         (8)(7)  "Facility" means any institution, building,

31  residence, private home, or other place, whether operated for

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  1  profit or not, including a place operated by a county or

  2  municipality, which undertakes through its ownership or

  3  management to provide for a period exceeding 24-hour nursing

  4  care, personal care, or custodial care for three or more

  5  persons not related to the owner or manager by blood or

  6  marriage, who by reason of illness, physical infirmity, or

  7  advanced age require such services, but does not include any

  8  place providing care and treatment primarily for the acutely

  9  ill. A facility offering services for fewer than three persons

10  is within the meaning of this definition if it holds itself

11  out to the public to be an establishment which regularly

12  provides such services.

13         (9)(8)  "Geriatric outpatient clinic" means a site for

14  providing outpatient health care to persons 60 years of age or

15  older, which is staffed by a registered nurse or a physician

16  assistant.

17         (10)(9)  "Geriatric patient" means any patient who is

18  60 years of age or older.

19         (11)(10)  "Local ombudsman council" means a local

20  long-term care ombudsman council established pursuant to s.

21  400.0069, located within the Older Americans Act planning and

22  service areas.

23         (12)(11)  "Nursing home bed" means an accommodation

24  which is ready for immediate occupancy, or is capable of being

25  made ready for occupancy within 48 hours, excluding provision

26  of staffing; and which conforms to minimum space requirements,

27  including the availability of appropriate equipment and

28  furnishings within the 48 hours, as specified by rule of the

29  agency, for the provision of services specified in this part

30  to a single resident.

31

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  1         (13)(12)  "Nursing home facility" means any facility

  2  which provides nursing services as defined in part I of

  3  chapter 464 and which is licensed according to this part.

  4         (14)(13)  "Nursing service" means such services or acts

  5  as may be rendered, directly or indirectly, to and in behalf

  6  of a person by individuals as defined in s. 464.003.

  7         (15)(14)  "Planning and service area" means the

  8  geographic area in which the Older Americans Act programs are

  9  administered and services are delivered by the Department of

10  Elderly Affairs.

11         (16)(15)  "Respite care" means admission to a nursing

12  home for the purpose of providing a short period of rest or

13  relief or emergency alternative care for the primary caregiver

14  of an individual receiving care at home who, without

15  home-based care, would otherwise require institutional care.

16         (17)(16)  "Resident care plan" means a written plan

17  developed, maintained, and reviewed not less than quarterly by

18  a registered nurse, with participation from other facility

19  staff and the resident or his or her designee or legal

20  representative, which includes a comprehensive assessment of

21  the needs of an individual resident, the type and frequency of

22  services required to provide the necessary care for the

23  resident to attain or maintain the highest practicable

24  physical, mental, and psychosocial well-being, a listing of

25  services provided within or outside the facility to meet those

26  needs, and an explanation of service goals. The resident care

27  plan must be signed by the director of nursing and the

28  resident, the resident's designee, or the resident's legal

29  representative.

30         (18)(17)  "Resident designee" means a person, other

31  than the owner, administrator, or employee of the facility,

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  1  designated in writing by a resident or a resident's guardian,

  2  if the resident is adjudicated incompetent, to be the

  3  resident's representative for a specific, limited purpose.

  4         (19)(18)  "State ombudsman council" means the State

  5  Long-Term Care Ombudsman Council established pursuant to s.

  6  400.0067.

  7         (20)  "Voluntary board member" means a director of a

  8  not-for-profit corporation or organization who serves solely

  9  in a voluntary capacity for the corporation or organization,

10  does not receive any remuneration for his or her services on

11  the board of directors, and has no financial interest in the

12  corporation or organization. The agency shall recognize a

13  person as a voluntary board member following submission of a

14  statement to the agency by the director and the not-for-profit

15  corporation or organization which affirms that the director

16  conforms to this definition. The statement affirming the

17  status of the director must be submitted to the agency on a

18  form provided by the agency.

19         Section 3.  Section 400.0223, Florida Statutes, is

20  created to read:

21         400.0223  Resident's right to have electronic

22  monitoring devices in room; requirements, penalties.--

23         (1)  A nursing home facility shall permit a resident or

24  legal representative of the resident to monitor the resident

25  through the use of electronic monitoring devices. For the

26  purposes of this section the term "electronic monitoring

27  device" includes a video surveillance camera, an audio device,

28  a video telephone, and an internet video surveillance device.

29         (2)  A nursing home facility shall require a resident

30  who engages in electronic monitoring to post a notice on the

31

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  1  door of the resident's room. The notice must state that the

  2  room is being monitored by an electronic monitoring device.

  3         (3)  Monitoring conducted under this section must:

  4         (a)  Be noncompulsory and at the election of the

  5  resident or legal representative of the resident;

  6         (b)  Be funded by the resident or legal representative

  7  of the resident; and

  8         (c)  Protect the privacy rights of other residents and

  9  visitors to the nursing home facility to the extent reasonably

10  possible.

11         (4)  A nursing home facility may not refuse to admit an

12  individual to residency in the facility or remove a resident

13  from the facility because of a request for electronic

14  monitoring.

15         (5)  A nursing home facility shall make reasonable

16  physical accommodation for electronic monitoring, by

17  providing:

18         (a)  A reasonably secure place to mount the electronic

19  monitoring device; and

20         (b)  Access to power sources.

21         (6)  A nursing home facility shall inform a resident or

22  the legal representative of the resident of the resident's

23  right to electronic monitoring.

24         (7)  A nursing home facility may request a resident or

25  a resident's personal representative to conduct electronic

26  monitoring within plain view.

27         (8)  A resident who wishes to install an electronic

28  monitoring device may be required by the administrator of the

29  nursing home facility to make the request in writing.

30         (9)  Subject to the Florida Rules of Evidence, a tape

31  created through the use of electronic monitoring is admissible

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  1  in either a civil or criminal action brought in a Florida

  2  court.

  3         (10)(a)  A licensee who operates a nursing home

  4  facility in violation of this section is subject to a fine not

  5  exceeding $500 per violation per day under ss. 400.102 and

  6  400.121.

  7         (b)  A person who willfully and without the consent of

  8  the resident hampers, obstructs, tampers with, or destroys an

  9  electronic monitoring device or tape shall be guilty of a

10  misdemeanor of the first degree punishable as provided in s.

11  775.082 or s. 775.083.

12         Section 4.  Effective July 1, 2001, and applying to

13  causes of action accruing on or after that date, section

14  400.023, Florida Statutes, is amended to read:

15         400.023  Civil enforcement.--

16         (1)  Any resident whose rights as specified in this

17  part are violated deprived or infringed upon shall have a

18  cause of action against any licensee responsible for the

19  violation. The action may be brought by the resident or his or

20  her guardian, by a person or organization acting on behalf of

21  a resident with the consent of the resident or his or her

22  guardian, or by the personal representative of the estate of a

23  deceased resident regardless of the cause of death. If the

24  action alleges a claim for the resident's rights or for

25  negligence that caused the death of the resident, the claimant

26  shall be required to elect either survival damages pursuant to

27  s. 46.021 or wrongful death damages pursuant to s. 768.21 when

28  the cause of death resulted from the deprivation or

29  infringement of the decedent's rights. If the action alleges a

30  claim for the resident's rights or for negligence that did not

31  cause the death of the resident, the personal representative

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  1  of the estate may recover damages for the negligence that

  2  caused injury to the resident. The action may be brought in

  3  any court of competent jurisdiction to enforce such rights and

  4  to recover actual and punitive damages for any violation of

  5  deprivation or infringement on the rights of a resident or for

  6  negligence. Any resident who prevails in seeking injunctive

  7  relief or a claim for an administrative remedy is entitled to

  8  recover the costs of the action, and a reasonable attorney's

  9  fee assessed against the defendant not to exceed $25,000. Fees

10  shall be awarded solely for the injunctive or administrative

11  relief and not for any claim or action for damages whether

12  such claim or action is brought together with a request for an

13  injunction or administrative relief or as a separate action,

14  except as provided under s. 768.79 or the Florida Rules of

15  Civil Procedure. Any plaintiff who prevails in any such action

16  may be entitled to recover reasonable attorney's fees, costs

17  of the action, and damages, unless the court finds that the

18  plaintiff has acted in bad faith, with malicious purpose, and

19  that there was a complete absence of a justiciable issue of

20  either law or fact.  Prevailing defendants may be entitled to

21  recover reasonable attorney's fees pursuant to s. 57.105. The

22  theories of recovery remedies provided in this section are in

23  addition to and cumulative with other legal and administrative

24  actions remedies available to a resident and to the agency,

25  and the provisions of chapter 766 do not apply.

26         (2)  In any claim brought pursuant to this part

27  alleging a violation of resident's rights or negligence

28  causing injury to or the death of a resident, the claimant

29  shall have the burden of proving, by a preponderance of the

30  evidence, that:

31         (a)  The defendant owed a duty to the resident;

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  1         (b)  The defendant breached the duty to the resident;

  2         (c)  The breach of the duty is a legal cause of loss,

  3  injury, death or damage to the resident; and

  4         (d)  The resident sustained loss, injury, death or

  5  damage as a result of the breach.

  6

  7  Nothing in this part shall be interpreted to create strict

  8  liability. A violation of the rights set forth in s. 400.022

  9  or in any other standard or guidelines specified in this part

10  or in any applicable administrative standard or guidelines of

11  this state or a federal regulatory agency shall be evidence of

12  negligence but shall not be considered negligence per se.

13         (2)  Attorneys' fees shall be based on the following

14  criteria:

15         (a)  The time and labor required;

16         (b)  The novelty and difficulty of the questions;

17         (c)  The skill requisite to perform the legal service

18  properly;

19         (d)  The preclusion of other employment by the attorney

20  due to the acceptance of the case;

21         (e)  The customary fee;

22         (f)  Whether the fee is fixed or contingent;

23         (g)  The amount involved or the results obtained;

24         (h)  The experience, reputation, and ability of the

25  attorneys;

26         (i)  The costs expended to prosecute the claim;

27         (j)  The type of fee arrangement between the attorney

28  and the client;

29         (k)  Whether the relevant market requires a contingency

30  fee multiplier to obtain competent counsel;

31

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  1         (l)  Whether the attorney was able to mitigate the risk

  2  of nonpayment in any way.

  3         (3)  In any claim brought pursuant to s. 400.023, a

  4  licensee, person or entity shall have a duty to exercise

  5  reasonable care.  Reasonable care is that degree of care which

  6  a reasonably careful licensee, person or entity would use

  7  under like circumstances.

  8         (4)  In any claim for resident's rights violation or

  9  negligence by a nurse licensed under Part I of chapter 464,

10  such nurse shall have the duty to exercise care consistent

11  with the prevailing professional standard of care for a nurse.

12  The prevailing professional standard of care for a nurse shall

13  be that level of care, skill, and treatment which, in light of

14  all relevant surrounding circumstances is recognized as

15  acceptable and appropriate by reasonably prudent similar

16  nurses.

17         (5)(3)  A licensee shall not be liable for the medical

18  negligence of any physician rendering care or treatment to the

19  resident except for the administrative services of a medical

20  director as required in this part.  Nothing in this subsection

21  shall be construed to protect a licensee from liability for

22  failure to provide a resident with appropriate observation,

23  assessment, nursing diagnosis, planning, intervention, and

24  evaluation of care by nursing staff.

25         (4)  Claimants alleging a deprivation or infringement

26  of adequate and appropriate health care pursuant to s.

27  400.022(1)(k) which resulted in personal injury to or the

28  death of a resident shall conduct an investigation which shall

29  include a review by a licensed physician or registered nurse

30  familiar with the standard of nursing care for nursing home

31  residents pursuant to this part.  Any complaint alleging such

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  1  a deprivation or infringement shall be accompanied by a

  2  verified statement from the reviewer that there exists reason

  3  to believe that a deprivation or infringement occurred during

  4  the resident's stay at the nursing home.  Such opinion shall

  5  be based on records or other information available at the time

  6  that suit is filed.  Failure to provide records in accordance

  7  with the requirements of this chapter shall waive the

  8  requirement of the verified statement. 

  9         (5)  For the purpose of this section, punitive damages

10  may be awarded for conduct which is willful, wanton, gross or

11  flagrant, reckless, or consciously indifferent to the rights

12  of the resident.

13         (6)  To recover attorney's fees under this section, the

14  following conditions precedent must be met:

15         (a)  Within 120 days after the filing of a responsive

16  pleading or defensive motion to a complaint brought under this

17  section and before trial, the parties or their designated

18  representatives shall meet in mediation to discuss the issues

19  of liability and damages in accordance with this paragraph for

20  the purpose of an early resolution of the matter.

21         1.  Within 60 days after the filing of the responsive

22  pleading or defensive motion, the parties shall:

23         a.  Agree on a mediator. If the parties cannot agree on

24  a mediator, the defendant shall immediately notify the court,

25  which shall appoint a mediator within 10 days after such

26  notice.

27         b.  Set a date for mediation.

28         c.  Prepare an order for the court that identifies the

29  mediator, the scheduled date of the mediation, and other terms

30  of the mediation. Absent any disagreement between the parties,

31

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  1  the court may issue the order for the mediation submitted by

  2  the parties without a hearing.

  3         2.  The mediation must be concluded within 120 days

  4  after the filing of a responsive pleading or defensive motion.

  5  The date may be extended only by agreement of all parties

  6  subject to mediation under this subsection.

  7         3.  The mediation shall be conducted in the following

  8  manner:

  9         a.  Each party shall ensure that all persons necessary

10  for complete settlement authority are present at the

11  mediation.

12         b.  Each party shall mediate in good faith.

13         4.  All aspects of the mediation which are not

14  specifically established by this subsection must be conducted

15  according to the rules of practice and procedure adopted by

16  the Supreme Court of this state.

17         (b)  If the parties do not settle the case pursuant to

18  mediation, the last offer of the defendant made at mediation

19  shall be recorded by the mediator in a written report that

20  states the amount of the offer, the date the offer was made in

21  writing, and the date the offer was rejected. If the matter

22  subsequently proceeds to trial under this section and the

23  plaintiff prevails but is awarded an amount in damages,

24  exclusive of attorney's fees, which is equal to or less than

25  the last offer made by the defendant at mediation, the

26  plaintiff is not entitled to recover any attorney's fees.

27         (c)  This subsection applies only to claims for

28  liability and damages and does not apply to actions for

29  injunctive relief. 

30         (d)  This subsection applies to all causes of action

31  that accrue on or after October 1, 1999.

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  1         (7)  Discovery of financial information for the purpose

  2  of determining the value of punitive damages may not be had

  3  unless the plaintiff shows the court by proffer or evidence in

  4  the record that a reasonable basis exists to support a claim

  5  for punitive damages.

  6         (8)  In addition to any other standards for punitive

  7  damages, any award of punitive damages must be reasonable in

  8  light of the actual harm suffered by the resident and the

  9  egregiousness of the conduct that caused the actual harm to

10  the resident.

11         Section 5.  Effective July 1, 2001, and applying to

12  causes of action accruing on or after that date, section

13  400.0233, Florida Statutes, is created to read:

14         400.0233  Presuit notice; investigation; notification

15  of violation of resident's rights or alleged negligence;

16  claims evaluation procedure; informal discovery; review.--

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

18         (a)  "Claim for resident's rights violation or

19  negligence" means a negligence claim alleging injury to or the

20  death of a resident arising out of an asserted violation of

21  the rights of a resident under s. 400.022 or an asserted

22  deviation from the applicable standard of care.

23         (b)  "Insurer" means any self-insurer authorized under

24  s. 627.357, liability insurance carrier, Joint Underwriting

25  Association, or any uninsured prospective defendant.

26         (2)  Prior to filing a claim for a violation of a

27  resident's rights or a claim for negligence, a claimant

28  alleging injury to or the death of a resident shall notify

29  each prospective defendant by certified mail, return receipt

30  requested, of an asserted violation of a resident's rights

31  provided in s. 400.022 or deviation from the standard of care.

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  1  Such notification shall include an identification of the

  2  rights the prospective defendant has violated and the

  3  negligence alleged to have caused the incident or incidents

  4  and a brief description of the injuries sustained by the

  5  resident which are reasonably identifiable at the time of

  6  notice. The notice shall contain a certificate of counsel that

  7  counsel's reasonable investigation gave rise to a good-faith

  8  belief that grounds exist for an action against each

  9  prospective defendant.

10         (3)(a)  No suit may be filed for a period of 75 days

11  after notice is mailed to any prospective defendant.  During

12  the 75-day period, the prospective defendants or their

13  insurers shall conduct an evaluation of the claim to determine

14  the liability of each defendant and to evaluate the damages of

15  the claimants. Each defendant or insurer of the defendant

16  shall have a procedure for the prompt evaluation of claims

17  during the 75-day period.  The procedure shall include one or

18  more of the following:

19         1.  Internal review by a duly qualified facility risk

20  manager or claims adjuster;

21         2.  Internal review by counsel for each prospective

22  defendant;

23         3.  A quality assurance committee authorized under any

24  applicable state or federal statutes or regulations;

25         4.  Any other similar procedure that fairly and

26  promptly evaluates the claims.

27

28  Each defendant or insurer of the defendant shall evaluate the

29  claim in good faith.

30

31

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  1         (b)  At or before the end of the 75 days, the defendant

  2  or insurer of the defendant shall provide the claimant with a

  3  written response:

  4         1.  Rejecting the claim; or

  5         2.  Making a settlement offer.

  6         (c)  The response shall be delivered to the claimant if

  7  not represented by counsel or to the claimant's attorney, by

  8  certified mail, return receipt requested.  Failure of the

  9  prospective defendant or insurer of the defendant to reply to

10  the notice within 75 days after receipt shall be deemed a

11  rejection of the claim for purposes of this section.

12         (4)  The notification of a violation of a resident's

13  rights or alleged negligence shall be served within the

14  applicable statute of limitations period; however, during the

15  75-day period, the statute of limitations is tolled as to all

16  prospective defendants.  Upon stipulation by the parties, the

17  75-day period may be extended and the statute of limitations

18  is tolled during any such extension.  Upon receiving written

19  notice by certified mail, return receipt requested, of

20  termination of negotiations in an extended period, the

21  claimant shall have 60 days or the remainder of the period of

22  the statute of limitations, whichever is greater, within which

23  to file suit.

24         (5)  No statement, discussion, written document,

25  report, or other work product generated by presuit claims

26  evaluation procedures under this section is discoverable or

27  admissible in any civil action for any purpose by the opposing

28  party.  All participants, including, but not limited to,

29  physicians, investigators, witnesses, and employees or

30  associates of the defendant, are immune from civil liability

31  arising from participation in the presuit claims evaluation

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  1  procedure.  Any licensed physician or registered nurse may be

  2  retained by either party to provide an opinion regarding the

  3  reasonable basis of the claim.  The presuit opinions of the

  4  expert are not discoverable or admissible in any civil action

  5  for any purpose by the opposing party.

  6         (6)  Upon receipt by a prospective defendant of a

  7  notice of claim, the parties shall make discoverable

  8  information available without formal discovery as provided in

  9  subsection (7).

10         (7)  Informal discovery may be used by a party to

11  obtain unsworn statements and the production of documents or

12  things as follows:

13         (a)  Unsworn statements.--Any party may require other

14  parties to appear for the taking of an unsworn statement.

15  Such statements may be used only for the purpose of claims

16  evaluation and are not discoverable or admissible in any civil

17  action for any purpose by any party.  A party seeking to take

18  the unsworn statement of any party must give reasonable notice

19  in writing to all parties.  The notice must state the time and

20  place for taking the statement and the name and address of the

21  party to be examined.  Unless otherwise impractical, the

22  examination of any party must be done at the same time by all

23  other parties.  Any party may be represented by counsel at the

24  taking of an unsworn statement.  An unsworn statement may be

25  recorded electronically, stenographically, or on videotape.

26  The taking of unsworn statements is subject to the provisions

27  of the Florida Rules of Civil Procedure and may be terminated

28  for abuses.

29         (b)  Documents or things.--Any party may request

30  discovery of relevant documents or things.  The documents or

31  things must be produced, at the expense of the requesting

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  1  party, within 20 days after the date of receipt of the

  2  request.  A party is required to produce relevant and

  3  discoverable documents or things within that party's

  4  possession or control, if in good faith it can reasonably be

  5  done within the timeframe of the claims evaluation process.

  6         (8)  Each request for and notice concerning informal

  7  discovery pursuant to this section must be in writing, and a

  8  copy thereof must be sent to all parties.  Such a request or

  9  notice must bear a certificate of service identifying the name

10  and address of the person to whom the request or notice is

11  served, the date of the request or notice, and the manner of

12  service thereof.

13         (9)  If a prospective defendant makes a written

14  settlement offer, the claimant shall have 15 days from the

15  date of receipt to accept the offer.  An offer shall be deemed

16  rejected unless accepted by delivery of a written notice of

17  acceptance.

18         (10)  To the extent not inconsistent with this part,

19  the provisions of the Florida Mediation Code, Florida Rules of

20  Civil Procedure, shall be applicable to such proceedings.

21         (11)  Within 30 days after the claimant's receipt of

22  the defendant's response to the claim, the parties or their

23  designated representatives shall meet in mediation to discuss

24  the issues of liability and damages in accordance with the

25  mediation rules of practice and procedures adopted by the

26  Supreme Court.  Upon stipulation of the parties, this 30-day

27  period may be extended and the statute of limitations is

28  tolled during the mediation and any such extension.  At the

29  conclusion of mediation the claimant shall have 60 days or the

30  remainder of the period of the statute of limitations,

31  whichever is greater, within which to file suit.

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  1         Section 6.  Effective July 1, 2001, and applying to

  2  causes of action accruing on or after that date, section

  3  400.0234, Florida Statutes, is created to read:

  4         400.0234  Availability of facility records for

  5  investigation of resident's rights violations and defenses;

  6  penalty.--

  7         (1)  Failure to provide complete copies of a resident's

  8  records including, but not limited to, all medical records and

  9  the resident's chart, within the control or possession of the

10  facility in accordance with s. 400.145 shall constitute

11  evidence of failure of that party to comply with good-faith

12  discovery requirements and shall waive the good-faith

13  certificate and presuit notice requirements under this part by

14  the requesting party.

15         (2)  No facility shall be held liable for any civil

16  damages as a result of complying with this section.

17         Section 7.  Effective July 1, 2001, and applying to

18  causes of action accruing on or after that date, section

19  400.0235, Florida Statutes, is created to read:

20         400.0235  Certain provisions not applicable to actions

21  under this part.--An action under this part for a violation of

22  rights or negligence recognized under this part is not a claim

23  for medical malpractice, and the provisions of s. 768.21(8) do

24  not apply to a claim alleging death of the resident.

25         Section 8.  Effective July 1, 2001, section 400.0236,

26  Florida Statutes, is created to read:

27         400.0236  Statute of limitations.--

28         (1)  Any action for damages brought under this part

29  shall be commenced within 2 years from the time the incident

30  giving rise to the action occurred or within 2 years from the

31  time the incident is discovered or should have been discovered

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  1  with the exercise of due diligence; however, in no event shall

  2  the action be commenced later than 4 years from the date of

  3  the incident or occurrence out of which the cause of action

  4  accrued.

  5         (2)  In those actions covered by this subsection in

  6  which it can be shown that fraudulent concealment or

  7  intentional misrepresentation of fact prevented the discovery

  8  of the injury, the period of limitations is extended forward 2

  9  years from the time that the injury is discovered with the

10  exercise of due diligence, but in no event for more than 6

11  years from the date the incident giving rise to the injury

12  occurred.

13         (3)  This section shall apply to causes of action that

14  have accrued prior to the effective date of this section;

15  however, any such cause of action that would not have been

16  barred under prior law may be brought within the time allowed

17  by prior law or within 2 years after the effective date of

18  this section, whichever is earlier, and will be barred

19  thereafter. In actions where it can be shown that fraudulent

20  concealment or intentional misrepresentation of fact prevented

21  the discovery of the injury, the period of limitations is

22  extended forward 2 years from the time that the injury is

23  discovered with the exercise of due diligence but in no event

24  more than 4 years from the effective date of this section.

25         Section 9.  Section 400.0237, Florida Statutes, is

26  created to read:

27         400.0237  Punitive damages; pleading; burden of

28  proof.--

29         (1)  In any action for damages brought under this part,

30  no claim for punitive damages shall be permitted unless there

31  is a reasonable showing by evidence in the record or proffered

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  1  by the claimant which would provide a reasonable basis for

  2  recovery of such damages. The claimant may move to amend her

  3  or his complaint to assert a claim for punitive damages as

  4  allowed by the rules of civil procedure. The rules of civil

  5  procedure shall be liberally construed so as to allow the

  6  claimant discovery of evidence which appears reasonably

  7  calculated to lead to admissible evidence on the issue of

  8  punitive damages. No discovery of financial worth shall

  9  proceed until after the pleading concerning punitive damages

10  is permitted.

11         (2)  A defendant may be held liable for punitive

12  damages only if the trier of fact, based on clear and

13  convincing evidence, finds that the defendant was personally

14  guilty of intentional misconduct or gross negligence. As used

15  in this section, the term:

16         (a)  "Intentional misconduct" means that the defendant

17  had actual knowledge of the wrongfulness of the conduct and

18  the high probability that injury or damage to the claimant

19  would result and, despite that knowledge, intentionally

20  pursued that course of conduct, resulting in injury or damage.

21         (b)  "Gross negligence" means that the defendant's

22  conduct was so reckless or wanting in care that it constituted

23  a conscious disregard or indifference to the life, safety, or

24  rights of persons exposed to such conduct.

25         (3)  In the case of an employer, principal,

26  corporation, or other legal entity, punitive damages may be

27  imposed for the conduct of an employee or agent only if the

28  conduct of the employee or agent meets the criteria specified

29  in subsection (2) and:

30

31

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  1         (a)  The employer, principal, corporation, or other

  2  legal entity actively and knowingly participated in such

  3  conduct;

  4         (b)  The officers, directors, or managers of the

  5  employer, principal, corporation, or other legal entity

  6  knowingly condoned, ratified, or consented to such conduct; or

  7         (c)  The employer, principal, corporation, or other

  8  legal entity engaged in conduct that constituted gross

  9  negligence and that contributed to the loss, damages, or

10  injury suffered by the claimant.

11         (4)  The plaintiff must establish at trial, by clear

12  and convincing evidence, its entitlement to an award of

13  punitive damages. The "greater weight of the evidence" burden

14  of proof applies to a determination of the amount of damages.

15         (5)  This section is remedial in nature and shall take

16  effect upon becoming a law.

17         Section 10.  Section 400.0238, Florida Statutes, is

18  created to read:

19         400.0238  Punitive damages; limitation.--

20         (1)(a)  Except as provided in paragraphs (b) and (c),

21  an award of punitive damages may not exceed the greater of:

22         1.  Three times the amount of compensatory damages

23  awarded to each claimant entitled thereto, consistent with the

24  remaining provisions of this section; or

25         2.  The sum of $1 million.

26         (b)  Where the fact finder determines that the wrongful

27  conduct proven under this section was motivated solely by

28  unreasonable financial gain and determines that the

29  unreasonably dangerous nature of the conduct, together with

30  the high likelihood of injury resulting from the conduct, was

31  actually known by the managing agent, director, officer, or

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  1  other person responsible for making policy decisions on behalf

  2  of the defendant, it may award an amount of punitive damages

  3  not to exceed the greater of:

  4         1.  Four times the amount of compensatory damages

  5  awarded to each claimant entitled thereto, consistent with the

  6  remaining provisions of this section; or

  7         2.  The sum of $4 million.

  8         (c)  Where the fact finder determines that at the time

  9  of injury the defendant had a specific intent to harm the

10  claimant and determines that the defendant's conduct did in

11  fact harm the claimant, there shall be no cap on punitive

12  damages.

13         (d)  This subsection is not intended to prohibit an

14  appropriate court from exercising its jurisdiction under s.

15  768.74 in determining the reasonableness of an award of

16  punitive damages that is less than three times the amount of

17  compensatory damages.

18         (2)  The claimant's attorney's fees, if payable from

19  the judgment, are, to the extent that the fees are based on

20  the punitive damages, calculated based on the final judgment

21  for punitive damages. This subsection does not limit the

22  payment of attorney's fees based upon an award of damages

23  other than punitive damages.

24         (3)  The jury may neither be instructed nor informed as

25  to the provisions of this section.

26         (4)  This section is remedial in nature and shall take

27  effect upon becoming a law.

28         Section 11.  Subsection (1) and paragraph (a) of

29  subsection (2) of section 768.735, Florida Statutes, are

30  amended and subsection (3) is added to that section to read:

31         768.735  Punitive damages; exceptions; limitation.--

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  1         (1)  Sections 768.72(2)-(4), 768.725, and 768.73 do not

  2  apply to any civil action based upon child abuse, abuse of the

  3  elderly under chapter 415, or abuse of the developmentally

  4  disabled or any civil action arising under chapter 400. Such

  5  actions are governed by applicable statutes and controlling

  6  judicial precedent. This section does not apply to claims

  7  brought pursuant to s. 400.023 or s. 400.429.

  8         (2)(a)  In any civil action based upon child abuse,

  9  abuse of the elderly under chapter 415, or abuse of the

10  developmentally disabled, or actions arising under chapter 400

11  and involving the award of punitive damages, the judgment for

12  the total amount of punitive damages awarded to a claimant may

13  not exceed three times the amount of compensatory damages

14  awarded to each person entitled thereto by the trier of fact,

15  except as provided in paragraph (b). This subsection does not

16  apply to any class action.

17         (3)  This section is remedial in nature and shall take

18  effect upon becoming a law.

19         Section 12.  Section 415.1111, Florida Statutes, is

20  amended to read:

21         415.1111  Civil actions.--A vulnerable adult who has

22  been abused, neglected, or exploited as specified in this

23  chapter has a cause of action against any perpetrator and may

24  recover actual and punitive damages for such abuse, neglect,

25  or exploitation.  The action may be brought by the vulnerable

26  adult, or that person's guardian, by a person or organization

27  acting on behalf of the vulnerable adult with the consent of

28  that person or that person's guardian, or by the personal

29  representative of the estate of a deceased victim without

30  regard to whether the cause of death resulted from the abuse,

31  neglect, or exploitation. The action may be brought in any

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  1  court of competent jurisdiction to enforce such action and to

  2  recover actual and punitive damages for any deprivation of or

  3  infringement on the rights of a vulnerable adult.  A party who

  4  prevails in any such action may be entitled to recover

  5  reasonable attorney's fees, costs of the action, and damages.

  6  The remedies provided in this section are in addition to and

  7  cumulative with other legal and administrative remedies

  8  available to a vulnerable adult. Notwithstanding the

  9  foregoing, any civil action for damages against any licensee

10  or entity who establishes, controls, conducts, manages, or

11  operates a facility licensed under part II of chapter 400

12  relating to its operation of the licensed facility shall be

13  brought pursuant to s. 400.023, or against any licensee or

14  entity who establishes, controls, conducts, manages, or

15  operates a facility licensed under part III of chapter 400

16  relating to its operation of the licensed facility shall be

17  brought pursuant to s. 400.429. Such licensee or entity shall

18  not be vicariously liable for the acts or omissions of its

19  employees or agents or any other third party in an action

20  brought under this section.

21         Section 13.  Effective October 1, 2001, and applicable

22  to causes of action accruing on or after that date, section

23  400.0247, Florida Statutes, is created to read:

24         400.0247  Copies forwarded to state attorney.--In any

25  action in which punitive damages are awarded, notwithstanding

26  any appeals, the Clerk of the Court shall forward to the state

27  attorney of that circuit a copy of the complaint, any amended

28  complaints, the verdict form, and the final judgment.

29         Section 14.  Subsection (17) is added to section

30  400.0255, Florida Statutes, to read:

31

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  1         400.0255  Resident transfer or discharge; requirements

  2  and procedures; hearings.--

  3         (17)  The provisions of this section apply to transfers

  4  or discharges that are initiated by the nursing home facility,

  5  and not by the resident or by the resident's physician or

  6  legal guardian or representative.

  7         Section 15.  Subsection (3) of section 400.062, Florida

  8  Statutes, is amended to read:

  9         400.062  License required; fee; disposition; display;

10  transfer.--

11         (3)  The annual license fee required for each license

12  issued under this part shall be comprised of two parts.  Part

13  I of the license fee shall be the basic license fee. The rate

14  per bed for the basic license fee shall be established

15  annually and shall be $50 per bed. The agency may adjust the

16  per bed licensure fees by the Consumer Price Index based on

17  the 12 months immediately preceding the increase must be

18  reasonably calculated to cover the cost of regulation under

19  this part, but may not exceed $35 per bed. Part II of the

20  license fee shall be the resident protection fee, which shall

21  be at the rate of not less than 25 cents per bed. The rate per

22  bed shall be the minimum rate per bed, and such rate shall

23  remain in effect until the effective date of a rate per bed

24  adopted by rule by the agency pursuant to this part. At such

25  time as the amount on deposit in the Resident Protection Trust

26  Fund is less than $1 million $500,000, the agency may adopt

27  rules to establish a rate which may not exceed $10 per bed.

28  The rate per bed shall revert back to the minimum rate per bed

29  when the amount on deposit in the Resident Protection Trust

30  Fund reaches $1 million $500,000, except that any rate

31  established by rule shall remain in effect until such time as

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  1  the rate has been equally required for each license issued

  2  under this part.  Any amount in the fund in excess of $2

  3  million $800,000 shall revert to the Health Care Trust Fund

  4  and may not be expended without prior approval of the

  5  Legislature.  The agency may prorate the annual license fee

  6  for those licenses which it issues under this part for less

  7  than 1 year.  Funds generated by license fees collected in

  8  accordance with this section shall be deposited in the

  9  following manner:

10         (a)  The basic license fee collected shall be deposited

11  in the Health Care Trust Fund, established for the sole

12  purpose of carrying out this part.  When the balance of the

13  account established in the Health Care Trust Fund for the

14  deposit of fees collected as authorized under this section

15  exceeds one-third of the annual cost of regulation under this

16  part, the excess shall be used to reduce the licensure fees in

17  the next year.

18         (b)  The resident protection fee collected shall be

19  deposited in the Resident Protection Trust Fund for the sole

20  purpose of paying, in accordance with the provisions of s.

21  400.063, for the appropriate alternate placement, care, and

22  treatment of a resident removed from a nursing home facility

23  on a temporary, emergency basis or for the maintenance and

24  care of residents in a nursing home facility pending removal

25  and alternate placement.

26         Section 16.  Subsections (2) and (5) of section

27  400.071, Florida Statutes, are amended, and subsections (11)

28  and (12) are added to that section, to read:

29         400.071  Application for license.--

30         (2)  The application shall be under oath and shall

31  contain the following:

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  1         (a)  The name, address, and social security number of

  2  the applicant if an individual; if the applicant is a firm,

  3  partnership, or association, its name, address, and employer

  4  identification number (EIN), and the name and address of any

  5  controlling interest every member; if the applicant is a

  6  corporation, its name, address, and employer identification

  7  number (EIN), and the name and address of its director and

  8  officers and of each person having at least a 5 percent

  9  interest in the corporation; and the name by which the

10  facility is to be known.

11         (b)  The name of any person whose name is required on

12  the application under the provisions of paragraph (a) and who

13  owns at least a 10 percent interest in any professional

14  service, firm, association, partnership, or corporation

15  providing goods, leases, or services to the facility for which

16  the application is made, and the name and address of the

17  professional service, firm, association, partnership, or

18  corporation in which such interest is held.

19         (c)  The location of the facility for which a license

20  is sought and an indication, as in the original application,

21  that such location conforms to the local zoning ordinances.

22         (d)  The name of the person or persons under whose

23  management or supervision the facility will be conducted and

24  the name of the its licensed administrator.

25         (e)  A signed affidavit disclosing any financial or

26  ownership interest that a person or entity described in

27  paragraph (a) or paragraph (d) has held in the last 5 years in

28  any entity licensed by this state or any other state to

29  provide health or residential care which has closed

30  voluntarily or involuntarily; has filed for bankruptcy; has

31  had a receiver appointed; has had a license denied, suspended,

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  1  or revoked; or has had an injunction issued against it which

  2  was initiated by a regulatory agency. The affidavit must

  3  disclose the reason any such entity was closed, whether

  4  voluntarily or involuntarily.

  5         (f)(e)  The total number of beds and the total number

  6  of Medicare and Medicaid certified beds.

  7         (g)(f)  Information relating to the number, experience,

  8  and training of the employees of the facility and of the moral

  9  character of the applicant and employees which the agency

10  requires by rule, including the name and address of any

11  nursing home with which the applicant or employees have been

12  affiliated through ownership or employment within 5 years of

13  the date of the application for a license and the record of

14  any criminal convictions involving the applicant and any

15  criminal convictions involving an employee if known by the

16  applicant after inquiring of the employee.  The applicant must

17  demonstrate that sufficient numbers of qualified staff, by

18  training or experience, will be employed to properly care for

19  the type and number of residents who will reside in the

20  facility.

21         (h)(g)  Copies of any civil verdict or judgment

22  involving the applicant rendered within the 10 years preceding

23  the application, relating to medical negligence, violation of

24  residents' rights, or wrongful death.  As a condition of

25  licensure, the licensee agrees to provide to the agency copies

26  of any new verdict or judgment involving the applicant,

27  relating to such matters, within 30 days after filing with the

28  clerk of the court.  The information required in this

29  paragraph shall be maintained in the facility's licensure file

30  and in an agency database which is available as a public

31  record.

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  1         (5)  The applicant shall furnish satisfactory proof of

  2  financial ability to operate and conduct the nursing home in

  3  accordance with the requirements of this part and all rules

  4  adopted under this part, and the agency shall establish

  5  standards for this purpose, including information reported

  6  under paragraph (2)(e). The agency also shall establish

  7  documentation requirements, to be completed by each applicant,

  8  that show anticipated facility revenues and expenditures, the

  9  basis for financing the anticipated cash-flow requirements of

10  the facility, and an applicant's access to contingency

11  financing.

12         (11)  The agency may issue an inactive license to a

13  nursing home that will be temporarily unable to provide

14  services but that is reasonably expected to resume services.

15  Such designation may be made for a period not to exceed 12

16  months but may be renewed by the agency for up to 6 additional

17  months. Any request by a licensee that a nursing home become

18  inactive must be submitted to the agency and approved by the

19  agency prior to initiating any suspension of service or

20  notifying residents. Upon agency approval, the nursing home

21  shall notify residents of any necessary discharge or transfer

22  as provided in s. 400.0255.

23         (12)  As a condition of licensure, each facility must

24  establish and submit with its application a plan for quality

25  assurance and for conducting risk management.

26         Section 17.  Subsection (1) of section 400.102, Florida

27  Statutes, is amended to read:

28         400.102  Action by agency against licensee; grounds.--

29         (1)  Any of the following conditions shall be grounds

30  for action by the agency against a licensee:

31

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  1         (a)  An intentional or negligent act materially

  2  affecting the health or safety of residents of the facility;

  3         (b)  Misappropriation or conversion of the property of

  4  a resident of the facility;

  5         (c)  Failure to follow the criteria and procedures

  6  provided under part I of chapter 394 relating to the

  7  transportation, voluntary admission, and involuntary

  8  examination of a nursing home resident;

  9         (d)  Violation of provisions of this part or rules

10  adopted under this part; or

11         (e)  Fraudulent altering, defacing, or falsifying any

12  medical or nursing home records, or causing or procuring any

13  of these offenses to be committed; or

14         (f)(e)  Any act constituting a ground upon which

15  application for a license may be denied.

16         Section 18.  Subsections (3) and (4) are added to

17  section 400.111, Florida Statutes, to read:

18         400.111  Expiration of license; renewal.--

19         (3)  The agency may not renew a license if the

20  applicant has failed to pay any fines assessed by final order

21  of the agency or final order of the Health Care Financing

22  Administration under requirements for federal certification.

23  The agency may renew the license of an applicant following the

24  assessment of a fine by final order if such fine has been paid

25  into an escrow account pending an appeal of a final order.

26         (4)  The licensee shall submit a signed affidavit

27  disclosing any financial or ownership interest that a licensee

28  has held within the last 5 years in any entity licensed by the

29  state or any other state to provide health or residential care

30  which entity has closed voluntarily or involuntarily; has

31  filed for bankruptcy; has had a receiver appointed; has had a

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  1  license denied, suspended, or revoked; or has had an

  2  injunction issued against it which was initiated by a

  3  regulatory agency. The affidavit must disclose the reason such

  4  entity was closed, whether voluntarily or involuntarily.

  5         Section 19.  Subsection (2) of section 400.118, Florida

  6  Statutes, is amended to read:

  7         400.118  Quality assurance; early warning system;

  8  monitoring; rapid response teams.--

  9         (2)(a)  The agency shall establish within each district

10  office one or more quality-of-care monitors, based on the

11  number of nursing facilities in the district, to monitor all

12  nursing facilities in the district on a regular, unannounced,

13  aperiodic basis, including nights, evenings, weekends, and

14  holidays. Quality-of-care monitors shall visit each nursing

15  facility at least quarterly. Priority for additional

16  monitoring visits shall be given to nursing facilities with a

17  history of resident patient care deficiencies. Quality-of-care

18  monitors shall be registered nurses who are trained and

19  experienced in nursing facility regulation, standards of

20  practice in long-term care, and evaluation of patient care.

21  Individuals in these positions shall not be deployed by the

22  agency as a part of the district survey team in the conduct of

23  routine, scheduled surveys, but shall function solely and

24  independently as quality-of-care monitors. Quality-of-care

25  monitors shall assess the overall quality of life in the

26  nursing facility and shall assess specific conditions in the

27  facility directly related to resident patient care, including

28  the operations of internal quality-improvement and

29  risk-management programs and adverse-incident reports. The

30  quality-of-care monitor shall include in an assessment visit

31  observation of the care and services rendered to residents and

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  1  formal and informal interviews with residents, family members,

  2  facility staff, resident guests, volunteers, other regulatory

  3  staff, and representatives of a long-term care ombudsman

  4  council or Florida advocacy council.

  5         (b)  Findings of a monitoring visit, both positive and

  6  negative, shall be provided orally and in writing to the

  7  facility administrator or, in the absence of the facility

  8  administrator, to the administrator on duty or the director of

  9  nursing. The quality-of-care monitor may recommend to the

10  facility administrator procedural and policy changes and staff

11  training, as needed, to improve the care or quality of life of

12  facility residents. Conditions observed by the quality-of-care

13  monitor which threaten the health or safety of a resident

14  shall be reported immediately to the agency area office

15  supervisor for appropriate regulatory action and, as

16  appropriate or as required by law, to law enforcement, adult

17  protective services, or other responsible agencies.

18         (c)  Any record, whether written or oral, or any

19  written or oral communication generated pursuant to paragraph

20  (a) or paragraph (b) shall not be subject to discovery or

21  introduction into evidence in any civil or administrative

22  action against a nursing facility arising out of matters which

23  are the subject of quality-of-care monitoring, and a person

24  who was in attendance at a monitoring visit or evaluation may

25  not be permitted or required to testify in any such civil or

26  administrative action as to any evidence or other matters

27  produced or presented during the monitoring visits or

28  evaluations. However, information, documents, or records

29  otherwise available from original sources are not to be

30  construed as immune from discovery or use in any such civil or

31  administrative action merely because they were presented

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  1  during monitoring visits or evaluations, and any person who

  2  participates in such activities may not be prevented from

  3  testifying as to matters within his or her knowledge, but such

  4  witness may not be asked about his or her participation in

  5  such activities. The exclusion from the discovery or

  6  introduction of evidence in any civil or administrative action

  7  provided for herein shall not apply when the quality-of-care

  8  monitor makes a report to the appropriate authorities

  9  regarding a threat to the health or safety of a resident.

10         Section 20.  Section 400.121, Florida Statutes, is

11  amended to read:

12         400.121  Denial, suspension, revocation of license;

13  moratorium on admissions; administrative fines; procedure;

14  order to increase staffing.--

15         (1)  The agency may deny, revoke, or suspend a license

16  or impose an administrative fine, not to exceed $500 per

17  violation per day, for:

18         (a)  A violation of any provision of s. 400.102(1);.

19         (b)  A demonstrated pattern of deficient practice;

20         (c)  Failure to pay any outstanding fines assessed by

21  final order of the agency or final order of the Health Care

22  Financing Administration pursuant to requirements for federal

23  certification. The agency may renew or approve the license of

24  an applicant following the assessment of a fine by final order

25  if such fine has been paid into an escrow account pending an

26  appeal of a final order;

27         (d)  Exclusion from the Medicare or Medicaid program;

28  or

29         (e)  An adverse action against any controlling interest

30  by a regulatory agency, including the appointment of a

31  receiver; denial, suspension, or revocation of a license; or

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  1  the issuance of an injunction by a regulatory agency. If the

  2  adverse action involves solely the management company, the

  3  applicant or licensee shall be given 30 days to remedy before

  4  final action is taken.

  5

  6  All hearings shall be held within the county in which the

  7  licensee or applicant operates or applies for a license to

  8  operate a facility as defined herein.

  9         (2)  Except as provided in s. 400.23(8), a $500 fine

10  shall be imposed The agency, as a part of any final order

11  issued by it under this part, may impose such fine as it deems

12  proper, except that such fine may not exceed $500 for each

13  violation. Each day a violation of this part occurs

14  constitutes a separate violation and is subject to a separate

15  fine, but in no event may any fine aggregate more than $5,000.

16  A fine may be levied pursuant to this section in lieu of and

17  notwithstanding the provisions of s. 400.23. Fines paid by any

18  nursing home facility licensee under this subsection shall be

19  deposited in the Resident Protection Trust Fund and expended

20  as provided in s. 400.063.

21         (3)  The agency may issue an order immediately

22  suspending or revoking a license when it determines that any

23  condition in the facility presents a danger to the health,

24  safety, or welfare of the residents in the facility.

25         (4)(a)  The agency may impose an immediate moratorium

26  on admissions to any facility when the agency determines that

27  any condition in the facility presents a threat to the health,

28  safety, or welfare of the residents in the facility.

29         (b)  Where the agency has placed a moratorium on

30  admissions on any facility two times within a 7-year period,

31  the agency may suspend the license of the nursing home and the

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  1  facility's management company, if any.  The licensee shall be

  2  afforded an administrative hearing within 90 days after the

  3  suspension to determine whether the license should be revoked.

  4  During the suspension, the agency shall take the facility into

  5  receivership and shall operate the facility.

  6         (5)  An action taken by the agency to deny, suspend, or

  7  revoke a facility's license under this part, in which the

  8  agency claims that the facility owner or an employee of the

  9  facility has threatened the health, safety, or welfare of a

10  resident of the facility, shall be heard by the Division of

11  Administrative Hearings of the Department of Management

12  Services within 120 days after receipt of the facility's

13  request for a hearing, unless the time limitation is waived by

14  both parties.  The administrative law judge must render a

15  decision within 30 days after receipt of a proposed

16  recommended order.  This subsection does not modify the

17  requirement that an administrative hearing be held within 90

18  days after a license is suspended under paragraph (4)(b).

19         (6)  The agency is authorized to require a facility to

20  increase staffing beyond the minimum required by law, if the

21  agency has taken administrative action against the facility

22  for care-related deficiencies directly attributable to

23  insufficient staff. Under such circumstances, the facility may

24  request an expedited interim rate increase. The agency shall

25  process the request within 10 days after receipt of all

26  required documentation from the facility. A facility that

27  fails to maintain the required increased staffing is subject

28  to a fine of $500 per day for each day the staffing is below

29  the level required by the agency.

30         (7)  An administrative proceeding challenging an action

31  by the agency to enforce licensure requirements shall be

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  1  reviewed on the basis of the facts and conditions that

  2  resulted in the initial agency action.

  3         Section 21.  Subsection (12) is added to section

  4  400.126, Florida Statutes, to read:

  5         400.126  Receivership proceedings.--

  6         (12)  Concurrently with the appointment of a receiver,

  7  the agency and the Department of Elderly Affairs shall

  8  coordinate an assessment of each resident in the facility by

  9  the Comprehensive Assessment and Review for Long-Term-Care

10  (CARES) Program for the purpose of evaluating each resident's

11  need for the level of care provided in a nursing facility and

12  the potential for providing such care in alternative settings.

13  If the CARES assessment determines that a resident could be

14  cared for in a less restrictive setting or does not meet the

15  criteria for skilled or intermediate care in a nursing home,

16  the department and agency shall refer the resident for such

17  care, as is appropriate for the resident. Residents referred

18  pursuant to this subsection shall be given primary

19  consideration for receiving services under the Community Care

20  for the Elderly program in the same manner as persons

21  classified to receive such services pursuant to s. 430.205.

22         Section 22.  Subsections (14), (15), (16), (17), (18),

23  (19), and (20) are added to section 400.141, Florida Statutes,

24  to read:

25         400.141  Administration and management of nursing home

26  facilities.--Every licensed facility shall comply with all

27  applicable standards and rules of the agency and shall:

28         (14)  Submit to the agency the information specified in

29  s. 400.071(2)(e) for a management company within 30 days after

30  the effective date of the management agreement.

31

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  1         (15)  Submit semiannually to the agency, or more

  2  frequently if requested by the agency, information regarding

  3  facility staff-to-resident ratios, staff turnover, and staff

  4  stability, including information regarding certified nursing

  5  assistants, licensed nurses, the director of nursing, and the

  6  facility administrator. For purposes of this reporting:

  7         (a)  Staff-to-resident ratios must be reported in the

  8  categories specified in s. 400.23(3)(a) and applicable rules.

  9  The ratio must be reported as an average for the most recent

10  calendar quarter.

11         (b)  Staff turnover must be reported for the most

12  recent 12-month period ending on the last workday of the most

13  recent calendar quarter prior to the date the information is

14  submitted. The turnover rate must be computed quarterly, with

15  the annual rate being the cumulative sum of the quarterly

16  rates. The formula for determining the turnover rate is the

17  total number of terminations or separations experienced during

18  the quarter, excluding any employee terminated during a

19  probationary period of 3 months or less, divided by the total

20  number of staff employed at the end of the period for which

21  the rate is computed, and expressed as a percentage.

22         (c)  The formula for determining staff stability is the

23  total number of employees that have been employed for more

24  than 12 months, divided by the total number of employees

25  employed at the end of the most recent calendar quarter, and

26  expressed as a percentage.

27         (16)  Report monthly the number of vacant beds in the

28  facility which are available for resident occupancy on the day

29  the information is reported.

30         (17)  Notify a licensed physician when a resident

31  exhibits signs of dementia or cognitive impairment or has a

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  1  change of condition in order to rule out the presence of an

  2  underlying physiological condition that may be contributing to

  3  such dementia or impairment. The notification must occur

  4  within 30 days after the acknowledgement of such signs by

  5  facility staff. If an underlying condition is determined to

  6  exist, the facility shall arrange, with the appropriate health

  7  care provider, the necessary care and services to treat the

  8  condition.

  9         (18)  If the facility implements a dining and

10  hospitality attendant program, ensure that the program is

11  developed and implemented under the supervision of the

12  facility director of nursing. A licensed nurse, licensed

13  speech or occupational therapist, or a registered dietitian

14  must conduct training of dining and hospitality attendants. A

15  person employed by a facility as a dining and hospitality

16  attendant must perform tasks under the direct supervision of a

17  licensed nurse.

18         (19)  Report to the agency any filing for bankruptcy

19  protection by the facility or its parent corporation,

20  divestiture or spin-off of its assets, or corporate

21  reorganization within 30 days after the completion of such

22  activity.

23         (20)  Maintain liability insurance coverage that is in

24  force at all times.

25

26  Facilities that have been awarded a Gold Seal under the

27  program established in s. 400.235 may develop a plan to

28  provide certified nursing assistant training as prescribed by

29  federal regulations and state rules and may apply to the

30  agency for approval of its program.

31

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  1         Section 23.  Section 400.1413, Florida Statutes, is

  2  created to read:

  3         400.1413  Volunteers in nursing homes.--

  4         (1)  It is the intent of the Legislature to encourage

  5  the involvement of volunteers in nursing homes in this state.

  6  The Legislature also acknowledges that the licensee is

  7  responsible for all the activities that take place in the

  8  nursing home and recognizes the licensee's need to be aware of

  9  and coordinate volunteer activities in the nursing home.

10  Therefore, a nursing home may require that volunteers:

11         (a)  Sign in and out with staff of the nursing home

12  upon entering or leaving the facility.

13         (b)  Wear an identification badge while in the

14  building.

15         (c)  Participate in a facility orientation and training

16  program.

17         (2)  This section does not affect the activities of

18  state or local long-term-care ombudsman councils authorized

19  under part I.

20         Section 24.  Section 400.147, Florida Statutes, is

21  created to read:

22         400.147  Internal risk-management and quality-assurance

23  program.--

24         (1)  Every facility shall, as part of its

25  administrative functions, establish an internal

26  risk-management and quality-assurance program, the purpose of

27  which is to assess resident-care practices; review facility

28  quality indicators, facility incident reports, deficiencies

29  cited by the agency, and resident grievances; and develop

30  plans of action to correct and respond quickly to identified

31  quality deficiencies. The program must include:

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  1         (a)  A designated person to serve as risk manager, who

  2  is responsible for implementation and oversight of the

  3  facility's risk-management and quality-assurance program as

  4  required by this section.

  5         (b)  A risk-management and quality-assurance committee

  6  consisting of the facility risk manager, the administrator,

  7  the director of nursing, the medical director, and at least

  8  three other members of the facility staff. The risk-management

  9  and quality-assurance committee shall meet at least monthly.

10         (c)  Policies and procedures to implement the internal

11  risk-management and quality-assurance program, which must

12  include the investigation and analysis of the frequency and

13  causes of general categories and specific types of adverse

14  incidents to residents.

15         (d)  The development and implementation of an incident

16  reporting system based upon the affirmative duty of all health

17  care providers and all agents and employees of the licensed

18  health care facility to report adverse incidents to the risk

19  manager, or to his or her designee, within 3 business days

20  after their occurrence.

21         (e)  The development of appropriate measures to

22  minimize the risk of adverse incidents to residents,

23  including, but not limited to, education and training in risk

24  management and risk prevention for all nonphysician personnel,

25  as follows:

26         1.  Such education and training of all nonphysician

27  personnel must be part of their initial orientation; and

28         2.  At least 1 hour of such education and training must

29  be provided annually for all nonphysician personnel of the

30  licensed facility working in clinical areas and providing

31  resident care.

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  1         (f)  The analysis of resident grievances that relate to

  2  resident care and the quality of clinical services.

  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 licensed facility. The incident

15  reports are part of the work papers of the attorney defending

16  the licensed facility in litigation relating to the licensed

17  facility and are subject to discovery, but are not admissible

18  as evidence in court. A person filing an incident report is

19  not subject to civil suit by virtue of such incident report.

20  As a part of each internal risk-management and

21  quality-assurance program, the incident reports shall be used

22  to develop categories of incidents which identify problem

23  areas. Once identified, procedures shall be adjusted to

24  correct the problem areas.

25         (5)  For purposes of reporting to the agency under this

26  section, the term "adverse incident" means:

27         (a)  An event over which facility personnel could

28  exercise control and which is associated in whole or in part

29  with the facility's intervention, rather than the condition

30  for which such intervention occurred, and which results in one

31  of the following:

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  1         1.  Death;

  2         2.  Brain or spinal damage;

  3         3.  Permanent disfigurement;

  4         4.  Fracture or dislocation of bones or joints;

  5         5.  A limitation of neurological, physical, or sensory

  6  function;

  7         6.  Any condition that required medical attention to

  8  which the resident has not given his or her informed consent,

  9  including failure to honor advanced directives; or

10         7.  Any condition that required the transfer of the

11  resident, within or outside the facility, to a unit providing

12  a more acute level of care due to the adverse incident, rather

13  than the resident's condition prior to the adverse incident;

14         (b)  Abuse, neglect, or exploitation as defined in s.

15  415.102;

16         (c)  Abuse, neglect and harm as defined in s. 39.01;

17         (d)  Resident elopement; or

18         (e)  An event that is reported to law enforcement.

19         (6)  The internal risk manager of each licensed

20  facility shall:

21         (a)  Investigate every allegation of sexual misconduct

22  which is made against a member of the facility's personnel who

23  has direct patient contact when the allegation is that the

24  sexual misconduct occurred at the facility or at the grounds

25  of the facility;

26         (b)  Report every allegation of sexual misconduct to

27  the administrator of the licensed facility; and

28         (c)  Notify the resident representative or guardian of

29  the victim that an allegation of sexual misconduct has been

30  made and that an investigation is being conducted.

31

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  1         (7)  The facility shall initiate an investigation and

  2  shall notify the agency within 1 business day after the risk

  3  manager or his or her designee has received a report pursuant

  4  to paragraph (1)(d). The notification must be made in writing

  5  and be provided electronically, by facsimile device or

  6  overnight mail delivery. The notification must include

  7  information regarding the identity of the affected resident,

  8  the type of adverse incident, the initiation of an

  9  investigation by the facility, and whether the events causing

10  or resulting in the adverse incident represent a potential

11  risk to any other resident. The notification is confidential

12  as provided by law and is not discoverable or admissible in

13  any civil or administrative action, except in disciplinary

14  proceedings by the agency or the appropriate regulatory board.

15  The agency may investigate, as it deems appropriate, any such

16  incident and prescribe measures that must or may be taken in

17  response to the incident. The agency shall review each

18  incident and determine whether it potentially involved conduct

19  by the health care professional who is subject to disciplinary

20  action, in which case the provisions of s. 456.073 shall

21  apply.

22         (8)(a)  Each facility shall complete the investigation

23  and submit an adverse-incident report to the agency for each

24  adverse incident within 15 calendar days after its occurrence.

25  If after a complete investigation, the risk manager determines

26  that the incident was not an adverse incident as defined in

27  subsection (5), the facility shall include this information in

28  the report. The agency shall develop a form for reporting this

29  information.

30         (b)  The information reported to the agency pursuant to

31  paragraph (a) which relates to persons licensed under chapter

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  1  458, chapter 459, chapter 461, or chapter 466 shall be

  2  reviewed by the agency. The agency shall determine whether any

  3  of the incidents potentially involved conduct by a health care

  4  professional who is subject to disciplinary action, in which

  5  case the provisions of s. 456.073 shall apply.

  6         (c)  The report submitted to the agency must also

  7  contain the name of the risk manager of the facility.

  8         (d)  The adverse-incident report is confidential as

  9  provided by law and is not discoverable or admissible in any

10  civil or administrative action, except in disciplinary

11  proceedings by the agency or the appropriate regulatory board.

12         (9)  Each facility subject to this section shall report

13  monthly any liability claim filed against it. The report must

14  include the name of the resident, the date or dates of the

15  incident leading to the claim, if applicable, and the type of

16  injury or violation of rights alleged to have occurred. This

17  report is confidential as provided by law and is not

18  discoverable or admissible in any civil or administrative

19  action, except in such actions brought by the agency to

20  enforce the provisions of this part.

21         (10)  The agency shall review, as part of its licensure

22  inspection process, the internal risk-management and

23  quality-assurance program at each facility regulated by this

24  section to determine whether the program meets standards

25  established in statutory laws and rules, is being conducted in

26  a manner designed to reduce adverse incidents, and is

27  appropriately reporting incidents as required by this section.

28         (11)  There is no monetary liability on the part of,

29  and a cause of action for damages may not arise against, any

30  risk manager for the implementation and oversight of the

31  internal risk-management and quality-assurance program in a

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  1  facility licensed under this part as required by this section,

  2  or for any act or proceeding undertaken or performed within

  3  the scope of the functions of such internal risk-management

  4  and quality-assurance program if the risk manager acts without

  5  intentional fraud.

  6         (12)  If the agency, through its receipt of the adverse

  7  incident reports prescribed in subsection (7), or through any

  8  investigation, has a reasonable belief that conduct by a staff

  9  member or employee of a facility is grounds for disciplinary

10  action by the appropriate regulatory board, the agency shall

11  report this fact to the regulatory board.

12         (13)  The agency may adopt rules to administer this

13  section.

14         (14)  The agency shall annually submit to the

15  Legislature a report on nursing home adverse incidents. The

16  report must include the following information arranged by

17  county:

18         (a)  The total number of adverse incidents.

19         (b)  A listing, by category, of the types of adverse

20  incidents, the number of incidents occurring within each

21  category, and the type of staff involved.

22         (c)  A listing, by category, of the types of injury

23  caused and the number of injuries occurring within each

24  category.

25         (d)  Types of liability claims filed based on an

26  adverse incident or reportable injury.

27         (e)  Disciplinary action taken against staff,

28  categorized by type of staff involved.

29         Section 25.  Section 400.148, Florida Statutes, is

30  created to read:

31

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  1         400.148  Medicaid "Up-or-Out" Quality of Care Contract

  2  Management Program.--

  3         (1)  The Legislature finds that the federal Medicare

  4  program has implemented successful models of managing the

  5  medical and supportive-care needs of long-term nursing home

  6  residents. These programs have maintained the highest

  7  practicable level of good health and have the potential to

  8  reduce the incidence of preventable illnesses among long-stay

  9  residents of nursing homes, thereby increasing the quality of

10  care for residents and reducing the number of lawsuits against

11  nursing homes. Such models are operated at no cost to the

12  state. It is the intent of the Legislature that the Agency for

13  Health Care Administration replicate such oversight for

14  Medicaid recipients in poor-performing nursing homes and in

15  assisted living facilities and nursing homes that are

16  experiencing disproportionate numbers of lawsuits, with the

17  goal of improving the quality of care in such homes or

18  facilitating the revocation of licensure.

19         (2)  The Agency for Health Care Administration shall

20  develop a pilot project in selected counties to demonstrate

21  the effect of assigning skilled and trained medical personnel

22  to ensure the quality of care, safety, and continuity of care

23  for long-stay Medicaid recipients in the highest-scoring

24  nursing homes in the Florida Nursing Home Guide on the date

25  the project is implemented. The agency is authorized to begin

26  the pilot project, subject to appropriation, in the

27  highest-scoring homes in counties where Evercare services are

28  immediately available. On January 1 of each year of the pilot

29  project, the agency shall submit to the appropriations and

30  substantive committees of the Legislature and the Governor an

31  assessment of the program and a proposal for expansion of the

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  1  program to additional facilities. The staff of the pilot

  2  project shall assist regulatory staff in imposing regulatory

  3  sanctions, including revocation of licensure, pursuant to s.

  4  400.121 against nursing homes that have quality-of-care

  5  violations.

  6         (3)  The pilot project must ensure:

  7         (a)  Oversight and coordination of all aspects of a

  8  resident's medical care and stay in a nursing home;

  9         (b)  Facilitation of close communication between the

10  resident, the resident's guardian or legal representative, the

11  resident's attending physician, the resident's family, and

12  staff of the nursing facility;

13         (c)  Frequent onsite visits to the resident;

14         (d)  Early detection of medical or quality problems

15  that have the potential to lead to adverse outcomes and

16  unnecessary hospitalization;

17         (e)  Close communication with regulatory staff;

18         (f)  Immediate investigation of resident

19  quality-of-care complaints and communication and cooperation

20  with the appropriate entity to address those complaints,

21  including the ombudsman, state agencies, agencies responsible

22  for Medicaid program integrity, and local law enforcement

23  agencies;

24         (g)  Assistance to the resident or the resident's

25  representative to relocate the resident if quality-of-care

26  issues are not otherwise addressed; and

27         (h)  Use of Medicare and other third-party funds to

28  support activities of the program, to the extent possible.

29         (4)  The agency shall coordinate the pilot project

30  activities with providers approved by Medicare to operate

31  Evercare demonstration projects.

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  1         (5)  Where there is no Evercare demonstration project

  2  provider, the agency may otherwise contract to provide

  3  oversight services to Medicaid recipients.

  4         (6)  The agency shall, jointly with the Statewide

  5  Public Guardianship Office, develop a system in the pilot

  6  project areas to identify Medicaid recipients who are

  7  residents of a participating nursing home or assisted living

  8  facility who have diminished ability to make their own

  9  decisions and who do not have relatives or family available to

10  act as guardians in nursing homes listed on the Nursing Home

11  Guide Watch List. The agency and the Statewide Public

12  Guardianship Office shall give such residents priority for

13  publicly funded guardianship services.

14         Section 26.  Section 400.1755, Florida Statutes, is

15  created to read:

16         400.1755  Care for persons with Alzheimer's disease or

17  other related disorders.--

18         (1)(a)  An individual who is employed by a facility

19  that provides care for residents with Alzheimer's disease or

20  other related disorders must complete up to 4 hours of initial

21  dementia-specific training developed or approved by the

22  Department of Elderly Affairs. The training must be completed

23  within 3 months after beginning employment.

24         (b)  A direct caregiver who is employed by a facility

25  that provides care for residents with Alzheimer's disease or

26  other related disorders and who provides direct care to such

27  residents must complete the required initial training and 4

28  additional hours of training developed or approved by the

29  Department of Elderly Affairs. The training must be completed

30  within 9 months after beginning employment.

31

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  1         (2)  In addition to the training required under

  2  subsection (1), a direct caregiver must participate in a

  3  minimum of 4 contact hours of dementia-specific continuing

  4  education each calendar year as approved by the Department of

  5  Elderly Affairs.

  6         (3)  Upon completing any training listed in subsection

  7  (1), the employee or direct caregiver shall be issued a

  8  certificate that includes the name of the training provider,

  9  the topic covered, and the date and signature of the training

10  provider.  The certificate is evidence of completion of

11  training in the identified topic, and the employee or direct

12  caregiver is not required to repeat training in that topic if

13  the employee or direct caregiver changes employment to a

14  different facility. The direct caregiver must comply with

15  other applicable continuing education requirements.

16         (4)  The Department of Elderly Affairs, or its

17  designee, shall approve the initial and continuing education

18  courses and providers.

19         (5)  The Department of Elderly Affairs shall keep a

20  current list of providers who are approved to provide initial

21  and continuing education for staff of facilities that provide

22  care for persons with Alzheimer's disease or other related

23  disorders.

24         (6)  The Department of Elderly Affairs shall adopt

25  rules to establish standards for trainers and training

26  necessary to administer this section.

27         Section 27.  Subsection (4) of section 400.19, Florida

28  Statutes, is amended to read:

29         400.19  Right of entry and inspection.--

30         (4)  The agency shall conduct unannounced onsite

31  facility reviews following written verification of licensee

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  1  noncompliance in instances in which a long-term care ombudsman

  2  council, pursuant to ss. 400.0071 and 400.0075, has received a

  3  complaint and has documented deficiencies in resident care or

  4  in the physical plant of the facility that threaten the

  5  health, safety, or security of residents, or when the agency

  6  documents through inspection that conditions in a facility

  7  present a direct or indirect threat to the health, safety, or

  8  security of residents. However, the agency shall conduct four

  9  or more unannounced onsite reviews every 3 months within a

10  12-month period of each facility while the facility which has

11  a conditional license licensure status. Deficiencies related

12  to physical plant do not require followup reviews after the

13  agency has determined that correction of the deficiency has

14  been accomplished and that the correction is of the nature

15  that continued compliance can be reasonably expected.

16         Section 28.  Subsection (3) and paragraph (a) of

17  subsection (5) of section 400.191, Florida Statutes, are

18  amended to read:

19         400.191  Availability, distribution, and posting of

20  reports and records.--

21         (3)  Each nursing home facility licensee shall maintain

22  as public information, available upon request, records of all

23  cost and inspection reports pertaining to that facility that

24  have been filed with, or issued by, any governmental agency.

25  Copies of such reports shall be retained in such records for

26  not less than 5 years from the date the reports are filed or

27  issued.

28         (a)  The agency shall quarterly publish a "Nursing Home

29  Guide Watch List" to assist consumers in evaluating the

30  quality of nursing home care in Florida. The watch list must

31  identify each facility that met the criteria for a conditional

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  1  licensure status on any day within the quarter covered by the

  2  list and each facility that was operating under bankruptcy

  3  protection on any day within the quarter. The watch list must

  4  include, but is not limited to, the facility's name, address,

  5  and ownership; the county in which the facility operates; the

  6  license expiration date; the number of licensed beds; a

  7  description of the deficiency causing the facility to be

  8  placed on the list; any corrective action taken; and the

  9  cumulative number of times the facility has been on a watch

10  list. The watch list must include a brief description

11  regarding how to choose a nursing home, the categories of

12  licensure, the agency's inspection process, an explanation of

13  terms used in the watch list, and the addresses and phone

14  numbers of the agency's managed care and health quality area

15  offices.

16         (b)  Upon publication of each quarterly watch list, the

17  agency must transmit a copy of the watch list to each nursing

18  home facility by mail and must make the watch list available

19  on the agency's Internet web site.

20         (5)  Every nursing home facility licensee shall:

21         (a)  Post, in a sufficient number of prominent

22  positions in the nursing home so as to be accessible to all

23  residents and to the general public:,

24         1.  A concise summary of the last inspection report

25  pertaining to the nursing home and issued by the agency, with

26  references to the page numbers of the full reports, noting any

27  deficiencies found by the agency and the actions taken by the

28  licensee to rectify such deficiencies and indicating in such

29  summaries where the full reports may be inspected in the

30  nursing home.

31

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  1         2.  A copy of the most recent version of the Florida

  2  Nursing Home Guide Watch List.

  3         Section 29.  Subsection (2) of section 400.211, Florida

  4  Statutes, is amended, and subsection (4) is added to that

  5  section, to read:

  6         400.211  Persons employed as nursing assistants;

  7  certification requirement.--

  8         (2)  The following categories of persons who are not

  9  certified as nursing assistants under part II of chapter 464

10  may be employed by a nursing facility for a period of 4

11  months:

12         (a)  Persons who are enrolled in, or have completed, a

13  state-approved nursing assistant program; or

14         (b)  Persons who have been positively verified as

15  actively certified and on the registry in another state with

16  no findings of abuse, neglect, or exploitation in that state;

17  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 30.  Subsections (2), (3), (7), and (8) of

17  section 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         (7)  The agency shall, at least every 15 months,

  4  evaluate all nursing home facilities and make a determination

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

  6  established rules adopted under this part as a basis for

  7  assigning a licensure status to that facility.  The agency

  8  shall base its evaluation on the most recent inspection

  9  report, taking into consideration findings from other official

10  reports, surveys, interviews, investigations, and inspections.

11  The agency shall assign a licensure status of standard or

12  conditional to each nursing home.

13         (a)  A standard licensure status means that a facility

14  has no class I or class II deficiencies, has corrected all

15  class III deficiencies within the time established by the

16  agency, and is in substantial compliance at the time of the

17  survey with criteria established under this part, with rules

18  adopted by the agency, and, if applicable, with rules adopted

19  under the Omnibus Budget Reconciliation Act of 1987 (Pub. L.

20  No. 100-203) (December 22, 1987), Title IV (Medicare,

21  Medicaid, and Other Health-Related Programs), Subtitle C

22  (Nursing Home Reform), as amended.

23         (b)  A conditional licensure status means that a

24  facility, due to the presence of one or more class I or class

25  II deficiencies, or class III deficiencies not corrected

26  within the time established by the agency, is not in

27  substantial compliance at the time of the survey with criteria

28  established under this part or, with rules adopted by the

29  agency, or, if applicable, with rules adopted under the

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

31  100-203) (December 22, 1987), Title IV (Medicare, Medicaid,

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

  2  Reform), as amended.  If the facility has no class I, class

  3  II, or class III deficiencies comes into substantial

  4  compliance at the time of the followup survey, a standard

  5  licensure status may be assigned.

  6         (c)  In evaluating the overall quality of care and

  7  services and determining whether the facility will receive a

  8  conditional or standard license, the agency shall consider the

  9  needs and limitations of residents in the facility and the

10  results of interviews and surveys of a representative sampling

11  of residents, families of residents, ombudsman council members

12  in the planning and service area in which the facility is

13  located, guardians of residents, and staff of the nursing home

14  facility.

15         (d)  The current licensure status of each facility must

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

17  of the deficiencies of the facility shall be posted in a

18  prominent place that is in clear and unobstructed public view

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

20  that facility. Licensees receiving a conditional licensure

21  status for a facility shall prepare, within 10 working days

22  after receiving notice of deficiencies, a plan for correction

23  of all deficiencies and shall submit the plan to the agency

24  for approval. Correction of all deficiencies, within the

25  period approved by the agency, shall result in termination of

26  the conditional licensure status.  Failure to correct the

27  deficiencies within a reasonable period approved by the agency

28  shall be grounds for the imposition of sanctions pursuant to

29  this part.

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

31  prominent place that is in clear and unobstructed public view

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

  2  facility.

  3         (f)  Not later than January 1, 1994, The agency shall

  4  adopt rules that:

  5         1.  Establish uniform procedures for the evaluation of

  6  facilities.

  7         2.  Provide criteria in the areas referenced in

  8  paragraph (c).

  9         3.  Address other areas necessary for carrying out the

10  intent of this section.

11         (8)  The agency shall adopt rules to provide that, when

12  the criteria established under subsection (2) are not met,

13  such deficiencies shall be classified according to the nature

14  and the scope of the deficiency. The scope shall be cited as

15  isolated, patterned, or widespread. An isolated deficiency is

16  a deficiency affecting one or a very limited number of

17  residents, or involving one or a very limited number of staff,

18  or a situation that occurred only occasionally or in a very

19  limited number of locations. A patterned deficiency is a

20  deficiency where more than a very limited number of residents

21  are affected, or more than a very limited number of staff are

22  involved, or the situation has occurred in several locations,

23  or the same resident or residents have been affected by

24  repeated occurrences of the same deficient practice but the

25  effect of the deficient practice is not found to be pervasive

26  throughout the facility. A widespread deficiency is a

27  deficiency in which the problems causing the deficiency are

28  pervasive in the facility or represent systemic failure that

29  has affected or has the potential to affect a large portion of

30  the facility's residents. The agency shall indicate the

31

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  1  classification on the face of the notice of deficiencies as

  2  follows:

  3         (a)  A class I deficiency is a deficiency that

  4  deficiencies are those which the agency determines presents a

  5  situation in which immediate corrective action is necessary

  6  because the facility's noncompliance has caused, or is likely

  7  to cause, serious injury, harm, impairment, or death to a

  8  resident receiving care in a facility present an imminent

  9  danger to the residents or guests of the nursing home facility

10  or a substantial probability that death or serious physical

11  harm would result therefrom.  The condition or practice

12  constituting a class I violation shall be abated or eliminated

13  immediately, unless a fixed period of time, as determined by

14  the agency, is required for correction. Notwithstanding s.

15  400.121(2), A class I deficiency is subject to a civil penalty

16  of $10,000 for an isolated deficiency, $12,500 for a patterned

17  deficiency, and $15,000 for a widespread in an amount not less

18  than $5,000 and not exceeding $25,000 for each and every

19  deficiency. The fine amount shall be doubled for each

20  deficiency if the facility was previously cited for one or

21  more class I or class II deficiencies during the last annual

22  inspection or any inspection or complaint investigation since

23  the last annual inspection. A fine must may be levied

24  notwithstanding the correction of the deficiency.

25         (b)  A class II deficiency is a deficiency that

26  deficiencies are those which the agency determines has

27  compromised the resident's ability to maintain or reach his or

28  her highest practicable physical, mental, and psychosocial

29  well-being, as defined by an accurate and comprehensive

30  resident assessment, plan of care, and provision of services

31  have a direct or immediate relationship to the health, safety,

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  1  or security of the nursing home facility residents, other than

  2  class I deficiencies. A class II deficiency is subject to a

  3  civil penalty of $2,500 for an isolated deficiency, $5,000 for

  4  a patterned deficiency, and $7,500 for a widespread in an

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

  6  and every deficiency. The fine amount shall be doubled for

  7  each deficiency if the facility was previously cited for one

  8  or more class I or class II deficiencies during the last

  9  annual inspection or any inspection or complaint investigation

10  since the last annual inspection. A fine shall be levied

11  notwithstanding the correction of the deficiency. A citation

12  for a class II deficiency shall specify the time within which

13  the deficiency is required to be corrected.  If a class II

14  deficiency is corrected within the time specified, no civil

15  penalty shall be imposed, unless it is a repeated offense.

16         (c)  A class III deficiency is a deficiency that

17  deficiencies are those which the agency determines will result

18  in no more than minimal physical, mental, or psychosocial

19  discomfort to the resident or has the potential to compromise

20  the resident's ability to maintain or reach his or her highest

21  practical physical, mental, or psychosocial well-being, as

22  defined by an accurate and comprehensive resident assessment,

23  plan of care, and provision of services to have an indirect or

24  potential relationship to the health, safety, or security of

25  the nursing home facility residents, other than class I or

26  class II deficiencies. A class III deficiency is shall be

27  subject to a civil penalty of $1,000 for an isolated

28  deficiency, $2,000 for a patterned deficiency, and $3,000 for

29  a widespread not less than $500 and not exceeding $2,500 for

30  each and every deficiency. The fine amount shall be doubled

31  for each deficiency if the facility was previously cited for

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  1  one or more class I or class II deficiencies during the last

  2  annual inspection or any inspection or complaint investigation

  3  since the last annual inspection. A citation for a class III

  4  deficiency must shall specify the time within which the

  5  deficiency is required to be corrected.  If a class III

  6  deficiency is corrected within the time specified, no civil

  7  penalty shall be imposed, unless it is a repeated offense.

  8         (d)  A class IV deficiency is a deficiency that the

  9  agency determines has the potential for causing no more than a

10  minor negative impact on the resident. If the class IV

11  deficiency is isolated, no plan of correction is required.

12         Section 31.  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 32.  Section 400.275, Florida Statutes, is

24  created to read:

25         400.275  Agency duties.--

26         (1)  The agency shall ensure that each newly hired

27  nursing home surveyor, as a part of basic training, is

28  assigned full-time to a licensed nursing home for at least 2

29  days within a 7-day period to observe facility operations

30  outside of the survey process before the surveyor begins

31  survey responsibilities. Such observations may not be the sole

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  1  basis of a deficiency citation against the facility. The

  2  agency may not assign an individual to be a member of a survey

  3  team for purposes of a survey, evaluation, or consultation

  4  visit at a nursing home facility in which the surveyor was an

  5  employee within the preceding 5 years.

  6         (2)  The agency shall semiannually provide for joint

  7  training of nursing home surveyors and staff of facilities

  8  licensed under this part on at least one of the 10 federal

  9  citations that were most frequently issued against nursing

10  facilities in this state during the previous calendar year.

11         (3)  Each member of a nursing home survey team who is a

12  health professional licensed under part I of chapter 464, part

13  X of chapter 468, or chapter 491, shall earn not less than 50

14  percent of required continuing education credits in geriatric

15  care. Each member of a nursing home survey team who is a

16  health professional licensed under chapter 465 shall earn not

17  less than 30 percent of required continuing education credits

18  in geriatric care.

19         (4)  The agency must ensure that when a deficiency is

20  related to substandard quality of care, a physician with

21  geriatric experience licensed under chapter 458 or chapter 459

22  or a registered nurse with geriatric experience licensed under

23  chapter 464 participates in the agency's informal

24  dispute-resolution process.

25         Section 33.  Subsections (3) and (4) of section

26  400.407, Florida Statutes, are amended to read:

27         400.407  License required; fee, display.--

28         (3)  Any license granted by the agency must state the

29  maximum resident capacity of the facility, the type of care

30  for which the license is granted, the date the license is

31  issued, the expiration date of the license, and any other

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  1  information deemed necessary by the agency. Licenses shall be

  2  issued for one or more of the following categories of care:

  3  standard, extended congregate care, limited nursing services,

  4  or limited mental health.

  5         (a)  A standard license shall be issued to facilities

  6  providing one or more of the personal services identified in

  7  s. 400.402. Such facilities may also employ or contract with a

  8  person licensed under part I of chapter 464 to administer

  9  medications and perform other tasks as specified in s.

10  400.4255.

11         (b)  An extended congregate care license shall be

12  issued to facilities providing, directly or through contract,

13  services beyond those authorized in paragraph (a), including

14  acts performed pursuant to part I of chapter 464 by persons

15  licensed thereunder, and supportive services defined by rule

16  to persons who otherwise would be disqualified from continued

17  residence in a facility licensed under this part.

18         1.  In order for extended congregate care services to

19  be provided in a facility licensed under this part, the agency

20  must first determine that all requirements established in law

21  and rule are met and must specifically designate, on the

22  facility's license, that such services may be provided and

23  whether the designation applies to all or part of a facility.

24  Such designation may be made at the time of initial licensure

25  or biennial relicensure, or upon request in writing by a

26  licensee under this part. Notification of approval or denial

27  of such request shall be made within 90 days after receipt of

28  such request and all necessary documentation. Existing

29  facilities qualifying to provide extended congregate care

30  services must have maintained a standard license and may not

31  have been subject to administrative sanctions during the

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  1  previous 2 years, or since initial licensure if the facility

  2  has been licensed for less than 2 years, for any of the

  3  following reasons:

  4         a.  A class I or class II violation;

  5         b.  Three or more repeat or recurring class III

  6  violations of identical or similar resident care standards as

  7  specified in rule from which a pattern of noncompliance is

  8  found by the agency;

  9         c.  Three or more class III violations that were not

10  corrected in accordance with the corrective action plan

11  approved by the agency;

12         d.  Violation of resident care standards resulting in a

13  requirement to employ the services of a consultant pharmacist

14  or consultant dietitian;

15         e.  Denial, suspension, or revocation of a license for

16  another facility under this part in which the applicant for an

17  extended congregate care license has at least 25 percent

18  ownership interest; or

19         f.  Imposition of a moratorium on admissions or

20  initiation of injunctive proceedings.

21         2.  Facilities that are licensed to provide extended

22  congregate care services shall maintain a written progress

23  report on each person who receives such services, which report

24  describes the type, amount, duration, scope, and outcome of

25  services that are rendered and the general status of the

26  resident's health.  A registered nurse, or appropriate

27  designee, representing the agency shall visit such facilities

28  at least quarterly two times a year to monitor residents who

29  are receiving extended congregate care services and to

30  determine if the facility is in compliance with this part and

31  with rules that relate to extended congregate care. One of

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  1  these visits may be in conjunction with the regular biennial

  2  survey.  The monitoring visits may be provided through

  3  contractual arrangements with appropriate community agencies.

  4  A registered nurse shall serve as part of the team that

  5  biennially inspects such facility. The agency may waive one of

  6  the required yearly monitoring visits for a facility that has

  7  been licensed for at least 24 months to provide extended

  8  congregate care services, if, during the biennial inspection,

  9  the registered nurse determines that extended congregate care

10  services are being provided appropriately, and if the facility

11  has no class I or class II violations and no uncorrected class

12  III violations. Before such decision is made, the agency shall

13  consult with the long-term care ombudsman council for the area

14  in which the facility is located to determine if any

15  complaints have been made and substantiated about the quality

16  of services or care.  The agency may not waive one of the

17  required yearly monitoring visits if complaints have been made

18  and substantiated.

19         3.  Facilities that are licensed to provide extended

20  congregate care services shall:

21         a.  Demonstrate the capability to meet unanticipated

22  resident service needs.

23         b.  Offer a physical environment that promotes a

24  homelike setting, provides for resident privacy, promotes

25  resident independence, and allows sufficient congregate space

26  as defined by rule.

27         c.  Have sufficient staff available, taking into

28  account the physical plant and firesafety features of the

29  building, to assist with the evacuation of residents in an

30  emergency, as necessary.

31

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  1         d.  Adopt and follow policies and procedures that

  2  maximize resident independence, dignity, choice, and

  3  decisionmaking to permit residents to age in place to the

  4  extent possible, so that moves due to changes in functional

  5  status are minimized or avoided.

  6         e.  Allow residents or, if applicable, a resident's

  7  representative, designee, surrogate, guardian, or attorney in

  8  fact to make a variety of personal choices, participate in

  9  developing service plans, and share responsibility in

10  decisionmaking.

11         f.  Implement the concept of managed risk.

12         g.  Provide, either directly or through contract, the

13  services of a person licensed pursuant to part I of chapter

14  464.

15         h.  In addition to the training mandated in s. 400.452,

16  provide specialized training as defined by rule for facility

17  staff.

18         4.  Facilities licensed to provide extended congregate

19  care services are exempt from the criteria for continued

20  residency as set forth in rules adopted under s. 400.441.

21  Facilities so licensed shall adopt their own requirements

22  within guidelines for continued residency set forth by the

23  department in rule.  However, such facilities may not serve

24  residents who require 24-hour nursing supervision. Facilities

25  licensed to provide extended congregate care services shall

26  provide each resident with a written copy of facility policies

27  governing admission and retention.

28         5.  The primary purpose of extended congregate care

29  services is to allow residents, as they become more impaired,

30  the option of remaining in a familiar setting from which they

31  would otherwise be disqualified for continued residency.  A

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  1  facility licensed to provide extended congregate care services

  2  may also admit an individual who exceeds the admission

  3  criteria for a facility with a standard license, if the

  4  individual is determined appropriate for admission to the

  5  extended congregate care facility.

  6         6.  Before admission of an individual to a facility

  7  licensed to provide extended congregate care services, the

  8  individual must undergo a medical examination as provided in

  9  s. 400.426(4) and the facility must develop a preliminary

10  service plan for the individual.

11         7.  When a facility can no longer provide or arrange

12  for services in accordance with the resident's service plan

13  and needs and the facility's policy, the facility shall make

14  arrangements for relocating the person in accordance with s.

15  400.428(1)(k).

16         8.  Failure to provide extended congregate care

17  services may result in denial of extended congregate care

18  license renewal.

19         9.  No later than January 1 of each year, the

20  department, in consultation with the agency, shall prepare and

21  submit to the Governor, the President of the Senate, the

22  Speaker of the House of Representatives, and the chairs of

23  appropriate legislative committees, a report on the status of,

24  and recommendations related to, extended congregate care

25  services. The status report must include, but need not be

26  limited to, the following information:

27         a.  A description of the facilities licensed to provide

28  such services, including total number of beds licensed under

29  this part.

30         b.  The number and characteristics of residents

31  receiving such services.

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  1         c.  The types of services rendered that could not be

  2  provided through a standard license.

  3         d.  An analysis of deficiencies cited during licensure

  4  biennial inspections.

  5         e.  The number of residents who required extended

  6  congregate care services at admission and the source of

  7  admission.

  8         f.  Recommendations for statutory or regulatory

  9  changes.

10         g.  The availability of extended congregate care to

11  state clients residing in facilities licensed under this part

12  and in need of additional services, and recommendations for

13  appropriations to subsidize extended congregate care services

14  for such persons.

15         h.  Such other information as the department considers

16  appropriate.

17         (c)  A limited nursing services license shall be issued

18  to a facility that provides services beyond those authorized

19  in paragraph (a) and as specified in this paragraph.

20         1.  In order for limited nursing services to be

21  provided in a facility licensed under this part, the agency

22  must first determine that all requirements established in law

23  and rule are met and must specifically designate, on the

24  facility's license, that such services may be provided. Such

25  designation may be made at the time of initial licensure or

26  biennial relicensure, or upon request in writing by a licensee

27  under this part. Notification of approval or denial of such

28  request shall be made within 90 days after receipt of such

29  request and all necessary documentation. Existing facilities

30  qualifying to provide limited nursing services shall have

31  maintained a standard license and may not have been subject to

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  1  administrative sanctions that affect the health, safety, and

  2  welfare of residents for the previous 2 years or since initial

  3  licensure if the facility has been licensed for less than 2

  4  years.

  5         2.  Facilities that are licensed to provide limited

  6  nursing services shall maintain a written progress report on

  7  each person who receives such nursing services, which report

  8  describes the type, amount, duration, scope, and outcome of

  9  services that are rendered and the general status of the

10  resident's health.  A registered nurse representing the agency

11  shall visit such facilities at least twice once a year to

12  monitor residents who are receiving limited nursing services

13  and to determine if the facility is in compliance with

14  applicable provisions of this part and with related rules. The

15  monitoring visits may be provided through contractual

16  arrangements with appropriate community agencies.  A

17  registered nurse shall also serve as part of the team that

18  biennially inspects such facility.

19         3.  A person who receives limited nursing services

20  under this part must meet the admission criteria established

21  by the agency for assisted living facilities.  When a resident

22  no longer meets the admission criteria for a facility licensed

23  under this part, arrangements for relocating the person shall

24  be made in accordance with s. 400.428(1)(k), unless the

25  facility is licensed to provide extended congregate care

26  services.

27         (4)(a)  The biennial standard license fee required of a

28  facility is $50 per bed based on the total licensed residence

29  capacity of the facility, except that no additional fee will

30  be assessed for beds designated for recipients of optional

31  state supplementation payments provided for in s. 409.212. The

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  1  total fee as described in this part shall be a minimum of $261

  2  and may not exceed $10,000.

  3         (b)  In addition to the total fee assessed under

  4  paragraph (a), the agency shall require facilities that are

  5  licensed to provide extended congregate care services under

  6  this part to pay an additional fee per licensed extended

  7  congregate care bed. The amount of the biennial fee shall be

  8  $100 per bed based on the total number of extended congregate

  9  care licensed beds.

10         (c)  In addition to the total fee assessed under

11  paragraph (a), the agency shall require facilities that are

12  licensed to provide limited nursing services under this part

13  to pay an additional fee per licensed limited nursing services

14  licensed bed. The amount of this biennial fee shall be $75 per

15  bed based on the total number of limited nursing services

16  licensed beds.

17         (d)  The agency shall annually adjust each per bed

18  licensure fee and the minimum and maximum limits by the

19  Consumer Price Index based on the 12 months immediately

20  preceding the increase. $240 per license, with an additional

21  fee of $30 per resident based on the total licensed resident

22  capacity of the facility, except that no additional fee will

23  be assessed for beds designated for recipients of optional

24  state supplementation payments provided for in s. 409.212. The

25  total fee may not exceed $10,000, no part of which shall be

26  returned to the facility.  The agency shall adjust the per bed

27  license fee and the total licensure fee annually by not more

28  than the change in the consumer price index based on the 12

29  months immediately preceding the increase.

30         (e)(b)  In addition to the total fee assessed under

31  paragraph (a), the agency shall require facilities that are

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  1  licensed to provide extended congregate care services under

  2  this part to pay an additional fee per licensed facility.  The

  3  amount of the biennial fee shall be $400 per license, no part

  4  of which shall be returned to the facility. The agency may

  5  adjust the annual license fee once each year by not more than

  6  the average rate of inflation for the 12 months immediately

  7  preceding the increase.

  8         (f)(c)  In addition to the total fee assessed under

  9  paragraph (a), the agency shall require facilities that are

10  licensed to provide limited nursing services under this part

11  to pay an additional fee per licensed facility.  The amount of

12  the biennial fee shall be $200 per license, with an additional

13  fee of $10 per resident based on the total licensed resident

14  capacity of the facility. The total biennial fee may not

15  exceed $2,000, no part of which shall be returned to the

16  facility.  The agency may adjust the $200 biennial license fee

17  and the maximum total license fee once each year by not more

18  than the average rate of inflation for the 12 months

19  immediately preceding the increase.

20         Section 34.  Paragraph (n) is added to subsection (1)

21  of section 400.414, Florida Statutes, and subsection (8) is

22  added to that section, to read:

23         400.414  Denial, revocation, or suspension of license;

24  imposition of administrative fine; grounds.--

25         (1)  The agency may deny, revoke, or suspend any

26  license issued under this part, or impose an administrative

27  fine in the manner provided in chapter 120, for any of the

28  following actions by an assisted living facility, any person

29  subject to level 2 background screening under s. 400.4174, or

30  any facility employee:

31

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  1         (n)  Any act constituting a ground upon which

  2  application for a license may be denied.

  3

  4  Administrative proceedings challenging agency action under

  5  this subsection shall be reviewed on the basis of the facts

  6  and conditions that resulted in the agency action.

  7         (8)  The agency may issue a temporary license pending

  8  final disposition of a proceeding involving the suspension or

  9  revocation of an assisted-living-facility license.

10         Section 35.  Subsection (1) of section 400.417, Florida

11  Statutes, is amended to read:

12         400.417  Expiration of license; renewal; conditional

13  license.--

14         (1)  A standard license Biennial licenses, unless

15  sooner suspended or revoked, shall expire 2 years from the

16  date of issuance. Limited nursing, extended congregate care,

17  and limited mental health licenses shall expire at the same

18  time as the facility's standard license, regardless of when

19  issued. The agency shall notify the facility by certified mail

20  at least 120 days prior to expiration that a renewal license

21  is necessary to continue operation.  Ninety days prior to the

22  expiration date, an application for renewal shall be submitted

23  to the agency. Fees must be prorated.  The failure to file a

24  timely renewal application shall result in a late fee charged

25  to the facility in an amount equal to 50 percent of the

26  current fee.

27         Section 36.  Section 400.419, Florida Statutes, is

28  amended to read:

29         400.419  Violations; administrative fines.--

30         (1)  Each violation of this part and adopted rules

31  shall be classified according to the nature of the violation

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  1  and the gravity of its probable effect on facility residents.

  2  The agency shall indicate the classification on the written

  3  notice of the violation as follows:

  4         (a)  Class "I" violations are those conditions or

  5  occurrences related to the operation and maintenance of a

  6  facility or to the personal care of residents which the agency

  7  determines present an imminent danger to the residents or

  8  guests of the facility or a substantial probability that death

  9  or serious physical or emotional harm would result therefrom.

10  The condition or practice constituting a class I violation

11  shall be abated or eliminated within 24 hours, unless a fixed

12  period, as determined by the agency, is required for

13  correction.  A class I violation is subject to an

14  administrative fine in an amount not less than $5,000 $1,000

15  and not exceeding $10,000 for each violation.  A fine may be

16  levied notwithstanding the correction of the violation.

17         (b)  Class "II" violations are those conditions or

18  occurrences related to the operation and maintenance of a

19  facility or to the personal care of residents which the agency

20  determines directly threaten the physical or emotional health,

21  safety, or security of the facility residents, other than

22  class I violations. A class II violation is subject to an

23  administrative fine in an amount not less than $1,000 $500 and

24  not exceeding $5,000 for each violation. A citation for a

25  class II violation must shall specify the time within which

26  the violation is required to be corrected.  If a class II

27  violation is corrected within the time specified, no fine may

28  be imposed, unless it is a repeated offense.

29         (c)  Class "III" violations are those conditions or

30  occurrences related to the operation and maintenance of a

31  facility or to the personal care of residents which the agency

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  1  determines indirectly or potentially threaten the physical or

  2  emotional health, safety, or security of facility residents,

  3  other than class I or class II violations.  A class III

  4  violation is subject to an administrative fine of not less

  5  than $500 $100 and not exceeding $1,000 for each violation.  A

  6  citation for a class III violation must shall specify the time

  7  within which the violation is required to be corrected. If a

  8  class III violation is corrected within the time specified, no

  9  fine may be imposed, unless it is a repeated offense.

10         (d)  Class "IV" violations are those conditions or

11  occurrences related to the operation and maintenance of a

12  building or to required reports, forms, or documents that do

13  not have the potential of negatively affecting residents.

14  These violations are of a type that the agency determines do

15  not threaten the health, safety, or security of residents of

16  the facility.  A facility that does not correct a class IV

17  violation within the time specified in the agency-approved

18  corrective action plan is subject to an administrative fine of

19  not less than $100 $50 nor more than $200 for each violation.

20  Any class IV violation that is corrected during the time an

21  agency survey is being conducted will be identified as an

22  agency finding and not as a violation.

23         (2)  The agency may set and levy a fine not to exceed

24  $1,000 for each violation which cannot be classified according

25  to subsection (1). Such fines in the aggregate may not exceed

26  $10,000 per survey.

27         (2)(3)  In determining if a penalty is to be imposed

28  and in fixing the amount of the fine, the agency shall

29  consider the following factors:

30         (a)  The gravity of the violation, including the

31  probability that death or serious physical or emotional harm

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  1  to a resident will result or has resulted, the severity of the

  2  action or potential harm, and the extent to which the

  3  provisions of the applicable laws or rules were violated.

  4         (b)  Actions taken by the owner or administrator to

  5  correct violations.

  6         (c)  Any previous violations.

  7         (d)  The financial benefit to the facility of

  8  committing or continuing the violation.

  9         (e)  The licensed capacity of the facility.

10         (3)(4)  Each day of continuing violation after the date

11  fixed for termination of the violation, as ordered by the

12  agency, constitutes an additional, separate, and distinct

13  violation.

14         (4)(5)  Any action taken to correct a violation shall

15  be documented in writing by the owner or administrator of the

16  facility and verified through followup visits by agency

17  personnel. The agency may impose a fine and, in the case of an

18  owner-operated facility, revoke or deny a facility's license

19  when a facility administrator fraudulently misrepresents

20  action taken to correct a violation.

21         (5)(6)  For fines that are upheld following

22  administrative or judicial review, the violator shall pay the

23  fine, plus interest at the rate as specified in s. 55.03, for

24  each day beyond the date set by the agency for payment of the

25  fine.

26         (6)(7)  Any unlicensed facility that continues to

27  operate after agency notification is subject to a $1,000 fine

28  per day. Each day beyond 5 working days after agency

29  notification constitutes a separate violation, and the

30  facility is subject to a fine of $500 per day.

31

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  1         (7)(8)  Any licensed facility whose owner or

  2  administrator concurrently operates an unlicensed facility

  3  shall be subject to an administrative fine of $5,000 per day.

  4  Each day that the unlicensed facility continues to operate

  5  beyond 5 working days after agency notification constitutes a

  6  separate violation, and the licensed facility shall be subject

  7  to a fine of $500 per day retroactive to the date of agency

  8  notification.

  9         (8)(9)  Any facility whose owner fails to apply for a

10  change-of-ownership license in accordance with s. 400.412 and

11  operates the facility under the new ownership is subject to a

12  fine of not to exceed $5,000.

13         (9)(10)  In addition to any administrative fines

14  imposed, the agency may assess a survey fee, equal to the

15  lesser of one half of the facility's biennial license and bed

16  fee or $500, to cover the cost of conducting initial complaint

17  investigations that result in the finding of a violation that

18  was the subject of the complaint or monitoring visits

19  conducted under s. 400.428(3)(c) to verify the correction of

20  the violations.

21         (10)(11)  The agency, as an alternative to or in

22  conjunction with an administrative action against a facility

23  for violations of this part and adopted rules, shall make a

24  reasonable attempt to discuss each violation and recommended

25  corrective action with the owner or administrator of the

26  facility, prior to written notification. The agency, instead

27  of fixing a period within which the facility shall enter into

28  compliance with standards, may request a plan of corrective

29  action from the facility which demonstrates a good faith

30  effort to remedy each violation by a specific date, subject to

31  the approval of the agency.

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  1         (11)(12)  Administrative fines paid by any facility

  2  under this section shall be deposited into the Health Care

  3  Trust Fund and expended as provided in s. 400.418.

  4         (12)(13)  The agency shall develop and disseminate an

  5  annual list of all facilities sanctioned or fined $5,000 or

  6  more for violations of state standards, the number and class

  7  of violations involved, the penalties imposed, and the current

  8  status of cases. The list shall be disseminated, at no charge,

  9  to the Department of Elderly Affairs, the Department of

10  Health, the Department of Children and Family Services, the

11  area agencies on aging, the Florida Statewide Advocacy

12  Council, and the state and local ombudsman councils. The

13  Department of Children and Family Services shall disseminate

14  the list to service providers under contract to the department

15  who are responsible for referring persons to a facility for

16  residency. The agency may charge a fee commensurate with the

17  cost of printing and postage to other interested parties

18  requesting a copy of this list.

19         Section 37.  Section 400.423, Florida Statutes, is

20  created to read:

21         400.423  Internal risk-management and quality-assurance

22  program; adverse incidents and reporting requirements.--

23         (1)  Every facility licensed under this part may, as

24  part of its administrative functions, voluntarily establish a

25  risk-management and quality-assurance program, the purpose of

26  which is to assess resident care practices, facility incident

27  reports, deficiencies cited by the agency, adverse-incident

28  reports, and resident grievances and develop plans of action

29  to correct and respond quickly to identify quality

30  differences.

31

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  1         (2)  Every facility licensed under this part is

  2  required to maintain adverse-incident reports. For purposes of

  3  this section, the term, "adverse incident" means:

  4         (a)  An event over which facility personnel could

  5  exercise control rather than as a result of the resident's

  6  condition and results in:

  7         1.  Death;

  8         2.  Brain or spinal damage;

  9         3.  Permanent disfigurement;

10         4.  Fracture or dislocation of bones or joints;

11         5.  Any condition that required medical attention to

12  which the resident has not given his or her consent, including

13  failure to honor advanced directives;

14         6.  Any condition that requires the transfer of the

15  resident from the facility to a unit providing more acute care

16  due to the incident rather than the resident's condition

17  before the incident.

18         (b)  Abuse, neglect, or exploitation as defined in s.

19  415.102;

20         (c)  Events reported to law enforcement; or

21         (d)  Elopement.

22         (3)  Licensed facilities shall provide within 1

23  business day after the occurrence of an adverse incident, by

24  electronic mail, facsimile, or United States mail, a

25  preliminary report to the agency on all adverse incidents

26  specified under this section. The report must include

27  information regarding the identity of the affected resident,

28  the type of adverse incident, and the status of the facility's

29  investigation of the incident.

30         (4)  Licensed facilities shall provide within 15 days,

31  by electronic mail, facsimile, or United States mail, a full

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  1  report to the agency on all adverse incidents specified in

  2  this section. The report must include the results of the

  3  facility's investigation into the adverse incident.

  4         (5)  The agency shall annually submit to the

  5  Legislature a report on assisted living facility

  6  adverse-incident reports. The report must include the

  7  following information arranged by county:

  8         (a)  A total number of adverse incidents;

  9         (b)  A listing, by category, of the type of adverse

10  incidents occurring within each category and the type of staff

11  involved;

12         (c)  A listing, by category, of the types of injuries,

13  if any, and the number of injuries occurring within each

14  category;

15         (d)  Types of liability claims filed based on an

16  adverse-incident report or reportable injury; and

17         (e)  Disciplinary action taken against staff,

18  categorized by the type of staff involved.

19         (6)  The information reported to the agency pursuant to

20  subsection (3) which relates to persons licensed under chapter

21  458, chapter 459, chapter 461, chapter 464, or chapter 465

22  shall be reviewed by the agency. The agency shall determine

23  whether any of the incidents potentially involved conduct by a

24  health care professional who is subject to disciplinary

25  action, in which case the provisions of s. 456.073 apply. The

26  agency may investigate, as it deems appropriate, any such

27  incident and prescribe measures that must or may be taken in

28  response to the incident. The agency shall review each

29  incident and determine whether it potentially involved conduct

30  by a health care professional who is subject to disciplinary

31  action, in which case the provisions of s. 456.073 apply.

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  1         (7)  If the agency, through its receipt of the

  2  adverse-incident reports prescribed in this part or through

  3  any investigation, has reasonable belief that conduct by a

  4  staff member or employee of a licensed facility is grounds for

  5  disciplinary action by the appropriate board, the agency shall

  6  report this fact to such regulatory board.

  7         (8)  The adverse incident reports and preliminary

  8  adverse incident reports required under this section are

  9  confidential as provided by law and are not discoverable or

10  admissible in any civil or administrative action, except in

11  disciplinary proceedings by the agency or appropriate

12  regulatory board.

13         (9)  The Department of Elderly Affairs may adopt rules

14  necessary to administer this section.

15         Section 38.  Present subsections (7), (8), (9), (10),

16  and (11) of section 400.426, Florida Statutes, are

17  redesignated as subsections (8), (9), (10), (11), and (12),

18  respectively, and a new subsection (7) is added to that

19  section, to read:

20         400.426  Appropriateness of placements; examinations of

21  residents.--

22         (7)  The facility must notify a licensed physician when

23  a resident exhibits signs of dementia or cognitive impairment

24  or has a change of condition in order to rule out the presence

25  of an underlying physiological condition that may be

26  contributing to such dementia or impairment. The notification

27  must occur within 30 days after the acknowledgement of such

28  signs by facility staff. If an underlying condition is

29  determined to exist, the facility shall arrange, with the

30  appropriate health care provider, the necessary care and

31  services to treat the condition.

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  1         Section 39.  Subsection (3) of section 400.4275,

  2  Florida Statutes, is amended to read:

  3         400.4275  Business practice; personnel records;

  4  liability insurance.--The assisted living facility shall be

  5  administered on a sound financial basis that is consistent

  6  with good business practices.

  7         (3)  The administrator or owner of a facility shall

  8  maintain liability insurance coverage of at least $250,000 per

  9  claim and an annual aggregate of $500,000 which that is in

10  force at all times.

11         Section 40.  Subsection (3) of section 400.428, Florida

12  Statutes, is amended to read:

13         400.428  Resident bill of rights.--

14         (3)(a)  The agency shall conduct a survey to determine

15  general compliance with facility standards and compliance with

16  residents' rights as a prerequisite to initial licensure or

17  licensure renewal.

18         (b)  In order to determine whether the facility is

19  adequately protecting residents' rights, the licensure

20  biennial survey shall include private informal conversations

21  with a sample of residents and consultation with the ombudsman

22  council in the planning and service area in which the facility

23  is located to discuss residents' experiences within the

24  facility.

25         (c)  During any calendar year in which no standard

26  licensure survey is conducted, the agency shall conduct at

27  least one monitoring visit of each facility cited in the

28  previous year for a class I or class II violation, or more

29  than three uncorrected class III violations.

30         (d)  The agency may conduct periodic followup

31  inspections as necessary to monitor the compliance of

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  1  facilities with a history of any class I, class II, or class

  2  III violations that threaten the health, safety, or security

  3  of residents.

  4         (e)  The agency may conduct complaint investigations as

  5  warranted to investigate any allegations of noncompliance with

  6  requirements required under this part or rules adopted under

  7  this part.

  8         Section 41.  Effective July 1, 2001, and applying to

  9  causes of action accruing on or after that date, section

10  400.429, Florida Statutes, is amended to read:

11         400.429  Civil actions to enforce rights.--

12         (1)  Any person or resident whose rights as specified

13  in this part are violated shall have a cause of action against

14  any facility owner, administrator, or staff responsible for

15  the violation.  The action may be brought by the resident or

16  his or her guardian, or by a person or organization acting on

17  behalf of a resident with the consent of the resident or his

18  or her guardian, or by the personal representative of the

19  estate of a deceased resident regardless of the cause of death

20  when the cause of death resulted from a violation of the

21  decedent's rights, to enforce such rights. If the action

22  alleges a claim for the resident's rights or for negligence

23  that caused the death of the resident, the claimant shall be

24  required to elect either survival damages pursuant to s.

25  46.021 or wrongful death damages pursuant to s. 768.21. If the

26  action alleges a claim for the resident's rights or for

27  negligence that did not cause the death of the resident, the

28  personal representative of the estate may recover damages for

29  the negligence that caused injury to the resident. The action

30  may be brought in any court of competent jurisdiction to

31  enforce such rights and to recover actual damages, and

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  1  punitive damages for violation of the rights of a resident or

  2  negligence when malicious, wanton, or willful disregard of the

  3  rights of others can be shown. Any resident who prevails in

  4  seeking injunctive relief or a claim for an administrative

  5  remedy is entitled to recover the costs of the action and a

  6  reasonable attorney's fee assessed against the defendant not

  7  to exceed $25,000. Fees shall be awarded solely for the

  8  injunctive or administrative relief and not for any claim or

  9  action for damages whether such claim or action is brought

10  together with a request for an injunction or administrative

11  relief or as a separate action, except as provided under s.

12  768.79 or the Florida Rules of Civil Procedure. Any plaintiff

13  who prevails in any such action may be entitled to recover

14  reasonable attorney's fees, costs of the action, and damages,

15  unless the court finds that the plaintiff has acted in bad

16  faith, with malicious purpose, and that there was a complete

17  absence of a justiciable issue of either law or fact.  A

18  prevailing defendant may be entitled to recover reasonable

19  attorney's fees pursuant to s. 57.105.  The theories of

20  recovery remedies provided in this section are in addition to

21  and cumulative with other legal and administrative actions

22  remedies available to a resident or to the agency, and the

23  provisions of chapter 766 do not apply.

24         (2)  In any claim brought pursuant to this part

25  alleging a violation of resident's rights or negligence

26  causing injury to or the death of a resident, the claimant

27  shall have the burden of proving, by a preponderance of the

28  evidence, that:

29         (a)  The defendant owed a duty to the resident;

30         (b)  The defendant breached the duty to the resident;

31

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  1         (c)  The breach of the duty is a legal cause of loss,

  2  injury, death or damage to the resident; and

  3         (d)  The resident sustained loss, injury, death, or

  4  damage as a result of the breach.

  5

  6  Nothing in this part shall be interpreted to create strict

  7  liability. A violation of the rights set forth in s. 400.428

  8  or in any other standard or guidelines specified in this part

  9  or in any applicable administrative standard or guidelines of

10  this state or a federal regulatory agency shall be evidence of

11  negligence but shall not be considered negligence per se.

12         (3)  In any claim brought pursuant to s. 400.429, a

13  licensee, person or entity shall have a duty to exercise

14  reasonable care.  Reasonable care is that degree of care which

15  a reasonably careful licensee, person or entity would use

16  under like circumstances.

17         (4)  In any claim for resident's rights violation or

18  negligence by a nurse licensed under part I of chapter 464,

19  such nurse shall have the duty to exercise care consistent

20  with the prevailing professional standard of care for a nurse.

21  The prevailing professional standard of care for a nurse shall

22  be that level of care, skill, and treatment which, in light of

23  all relevant surrounding circumstances is recognized as

24  acceptable and appropriate by reasonably prudent similar

25  nurses. To recover attorney's fees under this section, the

26  following conditions precedent must be met:

27         (a)  Within 120 days after the filing of a responsive

28  pleading or defensive motion to a complaint brought under this

29  section and before trial, the parties or their designated

30  representatives shall meet in mediation to discuss the issues

31

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  1  of liability and damages in accordance with this paragraph for

  2  the purpose of an early resolution of the matter.

  3         1.  Within 60 days after the filing of the responsive

  4  pleading or defensive motion, the parties shall:

  5         a.  Agree on a mediator. If the parties cannot agree on

  6  a mediator, the defendant shall immediately notify the court,

  7  which shall appoint a mediator within 10 days after such

  8  notice.

  9         b.  Set a date for mediation.

10         c.  Prepare an order for the court that identifies the

11  mediator, the scheduled date of the mediation, and other terms

12  of the mediation. Absent any disagreement between the parties,

13  the court may issue the order for the mediation submitted by

14  the parties without a hearing.

15         2.  The mediation must be concluded within 120 days

16  after the filing of a responsive pleading or defensive motion.

17  The date may be extended only by agreement of all parties

18  subject to mediation under this subsection.

19         3.  The mediation shall be conducted in the following

20  manner:

21         a.  Each party shall ensure that all persons necessary

22  for complete settlement authority are present at the

23  mediation.

24         b.  Each party shall mediate in good faith.

25         4.  All aspects of the mediation which are not

26  specifically established by this subsection must be conducted

27  according to the rules of practice and procedure adopted by

28  the Supreme Court of this state.

29         (b)  If the parties do not settle the case pursuant to

30  mediation, the last offer of the defendant made at mediation

31  shall be recorded by the mediator in a written report that

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  1  states the amount of the offer, the date the offer was made in

  2  writing, and the date the offer was rejected. If the matter

  3  subsequently proceeds to trial under this section and the

  4  plaintiff prevails but is awarded an amount in damages,

  5  exclusive of attorney's fees, which is equal to or less than

  6  the last offer made by the defendant at mediation, the

  7  plaintiff is not entitled to recover any attorney's fees.

  8         (c)  This subsection applies only to claims for

  9  liability and damages and does not apply to actions for

10  injunctive relief.

11         (d)  This subsection applies to all causes of action

12  that accrue on or after October 1, 1999.

13         (5)(3)  Discovery of financial information for the

14  purpose of determining the value of punitive damages may not

15  be had unless the plaintiff shows the court by proffer or

16  evidence in the record that a reasonable basis exists to

17  support a claim for punitive damages.

18         (6)(4)  In addition to any other standards for punitive

19  damages, any award of punitive damages must be reasonable in

20  light of the actual harm suffered by the resident and the

21  egregiousness of the conduct that caused the actual harm to

22  the resident.

23         Section 42.  Effective July 1, 2001, and applying to

24  causes of action accruing on or after that date, section

25  400.4293, Florida Statutes, is created to read:

26         400.4293  Presuit notice; investigation; notification

27  of violation of residents' rights or alleged negligence;

28  claims evaluation procedure; informal discovery; review.--

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

30         (a)  "Claim for residents' rights violation or

31  negligence" means a negligence claim alleging injury to or the

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  1  death of a resident arising out of an asserted violation of

  2  the rights of a resident under s. 400.428 or an asserted

  3  deviation from the applicable standard of care.

  4         (b)  "Insurer" means any self-insurer authorized under

  5  s. 627.357, liability insurance carrier, Joint Underwriting

  6  Association, or any uninsured prospective defendant.

  7         (2)  Prior to filing a claim for a violation of a

  8  resident's rights or a claim for negligence, a claimant

  9  alleging injury to or the death of a resident shall notify

10  each prospective defendant by certified mail, return receipt

11  requested, of an asserted violation of a resident's rights

12  provided in s. 400.428 or deviation from the standard of care.

13  Such notification shall include an identification of the

14  rights the prospective defendant has violated and the

15  negligence alleged to have caused the incident or incidents

16  and a brief description of the injuries sustained by the

17  resident which are reasonably identifiable at the time of

18  notice. The notice shall contain a certificate of counsel that

19  counsel's reasonable investigation gave rise to a good-faith

20  belief that grounds exist for an action against each

21  prospective defendant.

22         (3)(a)  No suit may be filed for a period of 75 days

23  after notice is mailed to any prospective defendant. During

24  the 75-day period, the prospective defendants or their

25  insurers shall conduct an evaluation of the claim to determine

26  the liability of each defendant and to evaluate the damages of

27  the claimants. Each defendant or insurer of the defendant

28  shall have a procedure for the prompt evaluation of claims

29  during the 75-day period. The procedure shall include one or

30  more of the following:

31

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  1         1.  Internal review by a duly qualified facility risk

  2  manager or claims adjuster;

  3         2.  Internal review by counsel for each prospective

  4  defendant;

  5         3.  A quality assurance committee authorized under any

  6  applicable state or federal statutes or regulations;

  7         4.  Any other similar procedure that fairly and

  8  promptly evaluates the claims.

  9

10  Each defendant or insurer of the defendant shall evaluate the

11  claim in good faith.

12         (b)  At or before the end of the 75 days, the defendant

13  or insurer of the defendant shall provide the claimant with a

14  written response:

15         1.  Rejecting the claim; or

16         2.  Making a settlement offer.

17         (c)  The response shall be delivered to the claimant if

18  not represented by counsel or to the claimant's attorney, by

19  certified mail, return receipt requested. Failure of the

20  prospective defendant or insurer of the defendant to reply to

21  the notice within 75 days after receipt shall be deemed a

22  rejection of the claim for purposes of this section.

23         (4)  The notification of a violation of a resident's

24  rights or alleged negligence shall be served within the

25  applicable statute of limitations period; however, during the

26  75-day period, the statute of limitations is tolled as to all

27  prospective defendants. Upon stipulation by the parties, the

28  75-day period may be extended and the statute of limitations

29  is tolled during any such extension. Upon receiving written

30  notice by certified mail, return receipt requested, of

31  termination of negotiations in an extended period, the

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  1  claimant shall have 60 days or the remainder of the period of

  2  the statute of limitations, whichever is greater, within which

  3  to file suit.

  4         (5)  No statement, discussion, written document,

  5  report, or other work product generated by presuit claims

  6  evaluation procedures under this section is discoverable or

  7  admissible in any civil action for any purpose by the opposing

  8  party. All participants, including, but not limited to,

  9  physicians, investigators, witnesses, and employees or

10  associates of the defendant, are immune from civil liability

11  arising from participation in the presuit claims evaluation

12  procedure. Any licensed physician or registered nurse may be

13  retained by either party to provide an opinion regarding the

14  reasonable basis of the claim. The presuit opinions of the

15  expert are not discoverable or admissible in any civil action

16  for any purpose by the opposing party.

17         (6)  Upon receipt by a prospective defendant of a

18  notice of claim, the parties shall make discoverable

19  information available without formal discovery as provided in

20  subsection (7).

21         (7)  Informal discovery may be used by a party to

22  obtain unsworn statements and the production of documents or

23  things, as follows:

24         (a)  Unsworn statements.--Any party may require other

25  parties to appear for the taking of an unsworn statement. Such

26  statements may be used only for the purpose of claims

27  evaluation and are not discoverable or admissible in any civil

28  action for any purpose by any party. A party seeking to take

29  the unsworn statement of any party must give reasonable notice

30  in writing to all parties. The notice must state the time and

31  place for taking the statement and the name and address of the

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  1  party to be examined. Unless otherwise impractical, the

  2  examination of any party must be done at the same time by all

  3  other parties. Any party may be represented by counsel at the

  4  taking of an unsworn statement. An unsworn statement may be

  5  recorded electronically, stenographically, or on videotape.

  6  The taking of unsworn statements is subject to the provisions

  7  of the Florida Rules of Civil Procedure and may be terminated

  8  for abuses.

  9         (b)  Documents or things.--Any party may request

10  discovery of relevant documents or things. The documents or

11  things must be produced, at the expense of the requesting

12  party, within 20 days after the date of receipt of the

13  request. A party is required to produce relevant and

14  discoverable documents or things within that party's

15  possession or control, if in good faith it can reasonably be

16  done within the timeframe of the claims evaluation process.

17         (8)  Each request for and notice concerning informal

18  discovery pursuant to this section must be in writing, and a

19  copy thereof must be sent to all parties. Such a request or

20  notice must bear a certificate of service identifying the name

21  and address of the person to whom the request or notice is

22  served, the date of the request or notice, and the manner of

23  service thereof.

24         (9)  If a prospective defendant makes a written

25  settlement offer, the claimant shall have 15 days from the

26  date of receipt to accept the offer. An offer shall be deemed

27  rejected unless accepted by delivery of a written notice of

28  acceptance.

29         (10)  To the extent not inconsistent with this part,

30  the provisions of the Florida Mediation Code, Florida Rules of

31  Civil Procedure, shall be applicable to such proceedings.

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  1         (11)  Within 30 days after the claimant's receipt of

  2  defendant's response to the claim, the parties or their

  3  designated representatives shall meet in mediation to discuss

  4  the issues of liability and damages in accordance with the

  5  mediation rules of practice and procedures adopted by the

  6  Supreme Court. Upon stipulation of the parties, this 30-day

  7  period may be extended and the statute of limitations is

  8  tolled during the mediation and any such extension. At the

  9  conclusion of mediation the claimant shall have 60 days or the

10  remainder of the period of the statute of limitations,

11  whichever is greater, within which to file suit.

12         Section 43.  Effective July 1, 2001, and applying to

13  causes of action accruing on or after that date, section

14  400.4294, Florida Statutes, is created to read:

15         400.4294  Availability of facility records for

16  investigation of resident's rights violations and defenses;

17  penalty.--

18         (1)  Failure to provide complete copies of a resident's

19  records including, but not limited to, all medical records and

20  the resident's chart, within the control or possession of the

21  facility within 10 days, in accordance with the provisions of

22  s. 400.145, shall constitute evidence of failure of that party

23  to comply with good-faith discovery requirements and shall

24  waive the good-faith certificate and presuit notice

25  requirements under this part by the requesting party.

26         (2)  No facility shall be held liable for any civil

27  damages as a result of complying with this section.

28         Section 44.  Effective July 1, 2001, section 400.4295,

29  Florida Statutes, is created to read:

30         400.4295  Certain provisions not applicable to actions

31  under this part.--An action under this part for a violation of

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  1  rights or negligence recognized herein is not a claim for

  2  medical malpractice, and the provisions of s. 768.21(8) do not

  3  apply to a claim alleging death of the resident.

  4         Section 45.  Effective July 1, 2001, section 400.4296,

  5  Florida Statutes, is created to read:

  6         400.4296  Statute of limitations.--

  7         (1)  Any action for damages brought under this part

  8  shall be commenced within 2 years from the time the incident

  9  giving rise to the action occurred or within 2 years from the

10  time the incident is discovered, or should have been

11  discovered with the exercise of due diligence; however, in no

12  event shall the action be commenced later than 4 years from

13  the date of the incident or occurrence out of which the cause

14  of action accrued.

15         (2)  In those actions covered by this subsection in

16  which it can be shown that fraudulent concealment or

17  intentional misrepresentation of fact prevented the discovery

18  of the injury, the period of limitations is extended forward 2

19  years from the time that the injury is discovered with the

20  exercise of due diligence, but in no event not more than 6

21  years from the date the incident giving rise to the injury

22  occurred.

23         (3)  This section shall apply to causes of action that

24  have accrued prior to the effective date of this section;

25  however, any such cause of action that would not have been

26  barred under prior law may be brought within the time allowed

27  by prior law or within 2 years after the effective date of

28  this section, whichever is earlier, and will be barred

29  thereafter. In actions where it can be shown that fraudulent

30  concealment or intentional misrepresentation of fact prevented

31  the discovery of the injury, the period of limitations is

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  1  extended forward 2 years from the time that the injury is

  2  discovered with the exercise of due diligence but in no event

  3  more than 4 years from the effective date of this section.

  4         Section 46.  Section 400.4297, Florida Statutes, is

  5  created to read:

  6         400.4297  Punitive damages; pleading; burden of

  7  proof.--

  8         (1)  In any action for damages brought under this part,

  9  no claim for punitive damages shall be permitted unless there

10  is a reasonable showing by evidence in the record or proffered

11  by the claimant which would provide a reasonable basis for

12  recovery of such damages. The claimant may move to amend her

13  or his complaint to assert a claim for punitive damages as

14  allowed by the rules of civil procedure. The rules of civil

15  procedure shall be liberally construed so as to allow the

16  claimant discovery of evidence which appears reasonably

17  calculated to lead to admissible evidence on the issue of

18  punitive damages. No discovery of financial worth shall

19  proceed until after the pleading concerning punitive damages

20  is permitted.

21         (2)  A defendant may be held liable for punitive

22  damages only if the trier of fact, based on clear and

23  convincing evidence, finds that the defendant was personally

24  guilty of intentional misconduct or gross negligence. As used

25  in this section, the term:

26         (a)  "Intentional misconduct" means that the defendant

27  had actual knowledge of the wrongfulness of the conduct and

28  the high probability that injury or damage to the claimant

29  would result and, despite that knowledge, intentionally

30  pursued that course of conduct, resulting in injury or damage.

31

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  1         (b)  "Gross negligence" means that the defendant's

  2  conduct was so reckless or wanting in care that it constituted

  3  a conscious disregard or indifference to the life, safety, or

  4  rights of persons exposed to such conduct.

  5         (3)  In the case of an employer, principal,

  6  corporation, or other legal entity, punitive damages may be

  7  imposed for the conduct of an employee or agent only if the

  8  conduct of the employee or agent meets the criteria specified

  9  in subsection (2) and:

10         (a)  The employer, principal, corporation, or other

11  legal entity actively and knowingly participated in such

12  conduct;

13         (b)  The officers, directors, or managers of the

14  employer, principal, corporation, or other legal entity

15  knowingly condoned, ratified, or consented to such conduct; or

16         (c)  The employer, principal, corporation, or other

17  legal entity engaged in conduct that constituted gross

18  negligence and that contributed to the loss, damages, or

19  injury suffered by the claimant.

20         (4)  The plaintiff must establish at trial, by clear

21  and convincing evidence, its entitlement to an award of

22  punitive damages. The "greater weight of the evidence" burden

23  of proof applies to a determination of the amount of damages.

24         (5)  This section is remedial in nature and shall take

25  effect upon becoming a law.

26         Section 47.  Section 400.4298, Florida Statutes, is

27  created to read:

28         400.4298  Punitive damages; limitation.--

29         (1)(a)  Except as provided in paragraphs (b) and (c),

30  an award of punitive damages may not exceed the greater of:

31

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  1         1.  Three times the amount of compensatory damages

  2  awarded to each claimant entitled thereto, consistent with the

  3  remaining provisions of this section; or

  4         2.  The sum of $1 million.

  5         (b)  Where the fact finder determines that the wrongful

  6  conduct proven under this section was motivated solely by

  7  unreasonable financial gain and determines that the

  8  unreasonably dangerous nature of the conduct, together with

  9  the high likelihood of injury resulting from the conduct, was

10  actually known by the managing agent, director, officer, or

11  other person responsible for making policy decisions on behalf

12  of the defendant, it may award an amount of punitive damages

13  not to exceed the greater of:

14         1.  Four times the amount of compensatory damages

15  awarded to each claimant entitled thereto, consistent with the

16  remaining provisions of this section; or

17         2.  The sum of $4 million.

18         (c)  Where the fact finder determines that at the time

19  of injury the defendant had a specific intent to harm the

20  claimant and determines that the defendant's conduct did in

21  fact harm the claimant, there shall be no cap on punitive

22  damages.

23         (d)  This subsection is not intended to prohibit an

24  appropriate court from exercising its jurisdiction under s.

25  768.74 in determining the reasonableness of an award of

26  punitive damages that is less than three times the amount of

27  compensatory damages.

28         (2)  The claimant's attorney's fees, if payable from

29  the judgment, are, to the extent that the fees are based on

30  the punitive damages, calculated based on the final judgment

31  for punitive damages. This subsection does not limit the

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  1  payment of attorney's fees based upon an award of damages

  2  other than punitive damages.

  3         (3)  The jury may neither be instructed nor informed as

  4  to the provisions of this section.

  5         (4)  This section is remedial in nature and shall take

  6  effect upon becoming a law.

  7         Section 48.  Effective October 1, 2001, and applicable

  8  to causes of action accruing on or after that date, section

  9  400.4303, Florida Statutes, is created to read:

10         400.4303  Copies forwarded to state attorney.--In any

11  action in which punitive damages are awarded, notwithstanding

12  any appeals, the Clerk of the Court shall forward to the state

13  attorney of that circuit a copy of the complaint, any amended

14  complaints, the verdict form, and the final judgment.

15         Section 49.  Section 400.434, Florida Statutes, is

16  amended to read:

17         400.434  Right of entry and inspection.--Any duly

18  designated officer or employee of the department, the

19  Department of Children and Family Services, the agency, the

20  state or local fire marshal, or a member of the state or local

21  long-term care ombudsman council shall have the right to enter

22  unannounced upon and into the premises of any facility

23  licensed pursuant to this part in order to determine the state

24  of compliance with the provisions of this part and of rules or

25  standards in force pursuant thereto.  The right of entry and

26  inspection shall also extend to any premises which the agency

27  has reason to believe is being operated or maintained as a

28  facility without a license; but no such entry or inspection of

29  any premises may be made without the permission of the owner

30  or person in charge thereof, unless a warrant is first

31  obtained from the circuit court authorizing such entry.  The

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  1  warrant requirement shall extend only to a facility which the

  2  agency has reason to believe is being operated or maintained

  3  as a facility without a license.  Any application for a

  4  license or renewal thereof made pursuant to this part shall

  5  constitute permission for, and complete acquiescence in, any

  6  entry or inspection of the premises for which the license is

  7  sought, in order to facilitate verification of the information

  8  submitted on or in connection with the application; to

  9  discover, investigate, and determine the existence of abuse or

10  neglect; or to elicit, receive, respond to, and resolve

11  complaints. Any current valid license shall constitute

12  unconditional permission for, and complete acquiescence in,

13  any entry or inspection of the premises by authorized

14  personnel.  The agency shall retain the right of entry and

15  inspection of facilities that have had a license revoked or

16  suspended within the previous 24 months, to ensure that the

17  facility is not operating unlawfully. However, before entering

18  the facility, a statement of probable cause must be filed with

19  the director of the agency, who must approve or disapprove the

20  action within 48 hours.  Probable cause shall include, but is

21  not limited to, evidence that the facility holds itself out to

22  the public as a provider of personal care services or the

23  receipt of a complaint by the long-term care ombudsman council

24  about the facility. Data collected by the state or local

25  long-term care ombudsman councils or the state or local

26  advocacy councils may be used by the agency in investigations

27  involving violations of regulatory standards.

28         Section 50.  Subsection (2) of section 400.435, Florida

29  Statutes, is amended to read:

30         400.435  Maintenance of records; reports.--

31

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  1         (2)  Within 60 days after the date of a licensure the

  2  biennial inspection visit or within 30 days after the date of

  3  any interim visit, the agency shall forward the results of the

  4  inspection to the local ombudsman council in whose planning

  5  and service area, as defined in part II, the facility is

  6  located; to at least one public library or, in the absence of

  7  a public library, the county seat in the county in which the

  8  inspected assisted living facility is located; and, when

  9  appropriate, to the district Adult Services and Mental Health

10  Program Offices.

11         Section 51.  Paragraph (h) of subsection (1) and

12  subsection (4) of section 400.441, Florida Statutes, are

13  amended to read:

14         400.441  Rules establishing standards.--

15         (1)  It is the intent of the Legislature that rules

16  published and enforced pursuant to this section shall include

17  criteria by which a reasonable and consistent quality of

18  resident care and quality of life may be ensured and the

19  results of such resident care may be demonstrated.  Such rules

20  shall also ensure a safe and sanitary environment that is

21  residential and noninstitutional in design or nature.  It is

22  further intended that reasonable efforts be made to

23  accommodate the needs and preferences of residents to enhance

24  the quality of life in a facility. In order to provide safe

25  and sanitary facilities and the highest quality of resident

26  care accommodating the needs and preferences of residents, the

27  department, in consultation with the agency, the Department of

28  Children and Family Services, and the Department of Health,

29  shall adopt rules, policies, and procedures to administer this

30  part, which must include reasonable and fair minimum standards

31  in relation to:

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  1         (h)  The care and maintenance of residents, which must

  2  include, but is not limited to:

  3         1.  The supervision of residents;

  4         2.  The provision of personal services;

  5         3.  The provision of, or arrangement for, social and

  6  leisure activities;

  7         4.  The arrangement for appointments and transportation

  8  to appropriate medical, dental, nursing, or mental health

  9  services, as needed by residents;

10         5.  The management of medication;

11         6.  The nutritional needs of residents; and

12         7.  Resident records; and.

13         8.  Internal risk management and quality assurance.

14         (4)  The agency may use an abbreviated biennial

15  standard licensure inspection that which consists of a review

16  of key quality-of-care standards in lieu of a full inspection

17  in facilities which have a good record of past performance.

18  However, a full inspection shall be conducted in facilities

19  which have had a history of class I or class II violations,

20  uncorrected class III violations, confirmed ombudsman council

21  complaints, or confirmed licensure complaints, within the

22  previous licensure period immediately preceding the inspection

23  or when a potentially serious problem is identified during the

24  abbreviated inspection.  The agency, in consultation with the

25  department, shall develop the key quality-of-care standards

26  with input from the State Long-Term Care Ombudsman Council and

27  representatives of provider groups for incorporation into its

28  rules.  Beginning on or before March 1, 1991, The department,

29  in consultation with the agency, shall report annually to the

30  Legislature concerning its implementation of this subsection.

31  The report shall include, at a minimum, the key

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  1  quality-of-care standards which have been developed; the

  2  number of facilities identified as being eligible for the

  3  abbreviated inspection; the number of facilities which have

  4  received the abbreviated inspection and, of those, the number

  5  that were converted to full inspection; the number and type of

  6  subsequent complaints received by the agency or department on

  7  facilities which have had abbreviated inspections; any

  8  recommendations for modification to this subsection; any plans

  9  by the agency to modify its implementation of this subsection;

10  and any other information which the department believes should

11  be reported.

12         Section 52.  Section 400.442, Florida Statutes, is

13  amended to read:

14         400.442  Pharmacy and dietary services.--

15         (1)  Any assisted living facility in which the agency

16  has documented a class I or class II deficiency or uncorrected

17  class III deficiencies regarding medicinal drugs or

18  over-the-counter preparations, including their storage, use,

19  delivery, or administration, or dietary services, or both,

20  during a licensure biennial survey or a monitoring visit or an

21  investigation in response to a complaint, shall, in addition

22  to or as an alternative to any penalties imposed under s.

23  400.419, be required to employ the consultant services of a

24  licensed pharmacist, a licensed registered nurse, or a

25  registered or licensed dietitian, as applicable.  The

26  consultant shall, at a minimum, provide onsite quarterly

27  consultation until the inspection team from the agency

28  determines that such consultation services are no longer

29  required.

30         (2)  A corrective action plan for deficiencies related

31  to assistance with the self-administration of medication or

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  1  the administration of medication must be developed and

  2  implemented by the facility within 48 hours after notification

  3  of such deficiency, or sooner if the deficiency is determined

  4  by the agency to be life-threatening.

  5         (3)  The agency shall employ at least two pharmacists

  6  licensed pursuant to chapter 465 among its personnel who

  7  biennially inspect assisted living facilities licensed under

  8  this part, to participate in licensure biennial inspections or

  9  consult with the agency regarding deficiencies relating to

10  medicinal drugs or over-the-counter preparations.

11         (4)  The department may by rule establish procedures

12  and specify documentation as necessary to administer implement

13  this section.

14         Section 53.  Section 400.449, Florida Statutes, is

15  created to read:

16         400.449  Resident records; penalties for alteration.--

17         (1)  Any person who fraudulently alters, defaces, or

18  falsifies any medical or other record of an assisted living

19  facility, or causes or procures any such offense to be

20  committed, commits a misdemeanor of the second degree,

21  punishable as provided in s. 775.082 or s. 775.083.

22         (2)  A conviction under subsection (1) is also grounds

23  for restriction, suspension, or termination of license

24  privileges.

25         Section 54.  Section 464.203, Florida Statutes, is

26  amended to read:

27         464.203  Certified nursing assistants; certification

28  requirement.--

29         (1)  The board shall issue a certificate to practice as

30  a certified nursing assistant to any person who demonstrates a

31  minimum competency to read and write and successfully passes

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  1  the required Level I or Level II screening pursuant to s.

  2  400.215 and meets one of the following requirements:

  3         (a)  Has successfully completed an approved training

  4  program and achieved a minimum score, established by rule of

  5  the board, on the nursing assistant competency examination,

  6  which consists of a written portion and skills-demonstration

  7  portion approved by the board and administered at a site and

  8  by personnel approved by the department.

  9         (b)  Has achieved a minimum score, established by rule

10  of the board, on the nursing assistant competency examination,

11  which consists of a written portion and skills-demonstration

12  portion, approved by the board and administered at a site and

13  by personnel approved by the department and:

14         1.  Has a high school diploma, or its equivalent; or

15         2.  Is at least 18 years of age.

16         (c)  Is currently certified in another state; is listed

17  on that state's certified nursing assistant registry; and has

18  not been found to have committed abuse, neglect, or

19  exploitation in that state.

20         (d)  Has completed the curriculum developed under the

21  Enterprise Florida Jobs and Education Partnership Grant and

22  achieved a minimum score, established by rule of the board, on

23  the nursing assistant competency examination, which consists

24  of a written portion and skills-demonstration portion,

25  approved by the board and administered at a site and by

26  personnel approved by the department.

27         (2)  If an applicant fails to pass the nursing

28  assistant competency examination in three attempts, the

29  applicant is not eligible for reexamination unless the

30  applicant completes an approved training program.

31

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  1         (3)  An oral examination shall be administered as a

  2  substitute for the written portion of the examination upon

  3  request. The oral examination shall be administered at a site

  4  and by personnel approved by the department.

  5         (4)  The board shall adopt rules to provide for the

  6  initial certification of certified nursing assistants.

  7         (5)  Certification as a nursing assistant, in

  8  accordance with this part, continues in effect until such time

  9  as the nursing assistant allows a period of 24 consecutive

10  months to pass during which period the nursing assistant fails

11  to perform any nursing-related services for monetary

12  compensation. When a nursing assistant fails to perform any

13  nursing-related services for monetary compensation for a

14  period of 24 consecutive months, the nursing assistant must

15  complete a new training and competency evaluation program or a

16  new competency evaluation program.

17         (6)(5)  A certified nursing assistant shall maintain a

18  current address with the board in accordance with s. 456.035.

19         (7)  A certified nursing assistant shall complete 18

20  hours of in-service training during each calendar year. The

21  certified nursing assistant shall be responsible for

22  maintaining documentation demonstrating compliance with these

23  provisions. The Council on Certified Nursing Assistants, in

24  accordance with s. 464.0285(2)(b), shall propose rules to

25  implement this subsection.

26         Section 55.  Subsection (2) of section 397.405, Florida

27  Statutes, is amended to read:

28         397.405  Exemptions from licensure.--The following are

29  exempt from the licensing provisions of this chapter:

30         (2)  A nursing home facility as defined in s. 400.021

31  s. 400.021(12).

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  1

  2  The exemptions from licensure in this section do not apply to

  3  any facility or entity which receives an appropriation, grant,

  4  or contract from the state to operate as a service provider as

  5  defined in this chapter or to any substance abuse program

  6  regulated pursuant to s. 397.406.  No provision of this

  7  chapter shall be construed to limit the practice of a

  8  physician licensed under chapter 458 or chapter 459, a

  9  psychologist licensed under chapter 490, or a psychotherapist

10  licensed under chapter 491, providing outpatient or inpatient

11  substance abuse treatment to a voluntary patient, so long as

12  the physician, psychologist, or psychotherapist does not

13  represent to the public that he or she is a licensed service

14  provider under this act. Failure to comply with any

15  requirement necessary to maintain an exempt status under this

16  section is a misdemeanor of the first degree, punishable as

17  provided in s. 775.082 or s. 775.083.

18         Section 56.  Notwithstanding the establishment of need

19  as provided for in chapter 408, no certificate of need for

20  additional nursing home beds shall be approved by the agency

21  until July 1, 2006. The Legislature finds that the continued

22  growth in the Medicaid budget for nursing home care has

23  constrained the ability of the state to meet the needs of its

24  elderly residents through the use of less restrictive and less

25  institutional methods of long-term care. It is therefore the

26  intent of the Legislature to limit the increase in Medicaid

27  nursing home expenditures in order to provide funds to invest

28  in long-term care that is community-based and provides

29  supportive services in a manner that is both more

30  cost-effective and more in keeping with the wishes of the

31  elderly residents of this state.

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  1         Section 57.  Subsections (3) and (8) of section

  2  400.0255, Florida Statutes, as amended by section 138 of

  3  chapter 2000-349, section 3 of chapter 2000-350, and section

  4  58 of chapter 2000-367, Laws of Florida, are reenacted to

  5  read:

  6         400.0255  Resident transfer or discharge; requirements

  7  and procedures; hearings.--

  8         (3)  When a discharge or transfer is initiated by the

  9  nursing home, the nursing home administrator employed by the

10  nursing home that is discharging or transferring the resident,

11  or an individual employed by the nursing home who is

12  designated by the nursing home administrator to act on behalf

13  of the administration, must sign the notice of discharge or

14  transfer. Any notice indicating a medical reason for transfer

15  or discharge must either be signed by the resident's attending

16  physician or the medical director of the facility, or include

17  an attached written order for the discharge or transfer. The

18  notice or the order must be signed by the resident's

19  physician, medical director, treating physician, nurse

20  practitioner, or physician assistant.

21         (8)  The notice required by subsection (7) must be in

22  writing and must contain all information required by state and

23  federal law, rules, or regulations applicable to Medicaid or

24  Medicare cases. The agency shall develop a standard document

25  to be used by all facilities licensed under this part for

26  purposes of notifying residents of a discharge or transfer.

27  Such document must include a means for a resident to request

28  the local long-term care ombudsman council to review the

29  notice and request information about or assistance with

30  initiating a fair hearing with the department's Office of

31  Appeals Hearings. In addition to any other pertinent

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  1  information included, the form shall specify the reason

  2  allowed under federal or state law that the resident is being

  3  discharged or transferred, with an explanation to support this

  4  action. Further, the form shall state the effective date of

  5  the discharge or transfer and the location to which the

  6  resident is being discharged or transferred. The form shall

  7  clearly describe the resident's appeal rights and the

  8  procedures for filing an appeal, including the right to

  9  request the local ombudsman council to review the notice of

10  discharge or transfer. A copy of the notice must be placed in

11  the resident's clinical record, and a copy must be transmitted

12  to the resident's legal guardian or representative and to the

13  local ombudsman council within 5 business days after signature

14  by the resident or resident designee.

15         Section 58.  Subsection (5) of section 400.23, Florida

16  Statutes, as amended by section 6 of chapter 2000-350, Laws of

17  Florida, is reenacted to read:

18         400.23  Rules; evaluation and deficiencies; licensure

19  status.--

20         (5)  The agency, in collaboration with the Division of

21  Children's Medical Services of the Department of Health, must,

22  no later than December 31, 1993, adopt rules for minimum

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

24  in nursing home facilities.  The rules must include a

25  methodology for reviewing a nursing home facility under ss.

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

27  age. A facility may be exempt from these standards for

28  specific persons between 18 and 21 years of age, if the

29  person's physician agrees that minimum standards of care based

30  on age are not necessary.

31

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  1         Section 59.  Subsection (2) of section 400.191, Florida

  2  Statutes, as amended by section 5 of chapter 2000-350, Laws of

  3  Florida, and subsection (6) of that section, as created by

  4  section 5 of chapter 2000-350, Laws of Florida, are reenacted

  5  to read:

  6         400.191  Availability, distribution, and posting of

  7  reports and records.--

  8         (2)  The agency shall provide additional information in

  9  consumer-friendly printed and electronic formats to assist

10  consumers and their families in comparing and evaluating

11  nursing home facilities.

12         (a)  The agency shall provide an Internet site which

13  shall include at least the following information either

14  directly or indirectly through a link to another established

15  site or sites of the agency's choosing:

16         1.  A list by name and address of all nursing home

17  facilities in this state.

18         2.  Whether such nursing home facilities are

19  proprietary or nonproprietary.

20         3.  The current owner of the facility's license and the

21  year that that entity became the owner of the license.

22         4.  The name of the owner or owners of each facility

23  and whether the facility is affiliated with a company or other

24  organization owning or managing more than one nursing facility

25  in this state.

26         5.  The total number of beds in each facility.

27         6.  The number of private and semiprivate rooms in each

28  facility.

29         7.  The religious affiliation, if any, of each

30  facility.

31

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  1         8.  The languages spoken by the administrator and staff

  2  of each facility.

  3         9.  Whether or not each facility accepts Medicare or

  4  Medicaid recipients or insurance, health maintenance

  5  organization, Veterans Administration, CHAMPUS program, or

  6  workers' compensation coverage.

  7         10.  Recreational and other programs available at each

  8  facility.

  9         11.  Special care units or programs offered at each

10  facility.

11         12.  Whether the facility is a part of a retirement

12  community that offers other services pursuant to part III,

13  part IV, or part V.

14         13.  The results of consumer and family satisfaction

15  surveys for each facility, as described in s. 400.0225. The

16  results may be converted to a score or scores, which may be

17  presented in either numeric or symbolic form for the intended

18  consumer audience.

19         14.  Survey and deficiency information contained on the

20  Online Survey Certification and Reporting (OSCAR) system of

21  the federal Health Care Financing Administration, including

22  annual survey, revisit, and complaint survey information, for

23  each facility for the past 45 months.  For noncertified

24  nursing homes, state survey and deficiency information,

25  including annual survey, revisit, and complaint survey

26  information for the past 45 months shall be provided.

27         15.  A summary of the Online Survey Certification and

28  Reporting (OSCAR) data for each facility over the past 45

29  months. Such summary may include a score, rating, or

30  comparison ranking with respect to other facilities based on

31  the number of citations received by the facility of annual,

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  1  revisit, and complaint surveys; the severity and scope of the

  2  citations; and the number of annual recertification surveys

  3  the facility has had during the past 45 months. The score,

  4  rating, or comparison ranking may be presented in either

  5  numeric or symbolic form for the intended consumer audience.

  6         (b)  The agency shall provide the following information

  7  in printed form:

  8         1.  A list by name and address of all nursing home

  9  facilities in this state.

10         2.  Whether such nursing home facilities are

11  proprietary or nonproprietary.

12         3.  The current owner or owners of the facility's

13  license and the year that entity became the owner of the

14  license.

15         4.  The total number of beds, and of private and

16  semiprivate rooms, in each facility.

17         5.  The religious affiliation, if any, of each

18  facility.

19         6.  The name of the owner of each facility and whether

20  the facility is affiliated with a company or other

21  organization owning or managing more than one nursing facility

22  in this state.

23         7.  The languages spoken by the administrator and staff

24  of each facility.

25         8.  Whether or not each facility accepts Medicare or

26  Medicaid recipients or insurance, health maintenance

27  organization, Veterans Administration, CHAMPUS program, or

28  workers' compensation coverage.

29         9.  Recreational programs, special care units, and

30  other programs available at each facility.

31

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  1         10.  The results of consumer and family satisfaction

  2  surveys for each facility, as described in s. 400.0225. The

  3  results may be converted to a score or scores, which may be

  4  presented in either numeric or symbolic form for the intended

  5  consumer audience.

  6         11.  The Internet address for the site where more

  7  detailed information can be seen.

  8         12.  A statement advising consumers that each facility

  9  will have its own policies and procedures related to

10  protecting resident property.

11         13.  A summary of the Online Survey Certification and

12  Reporting (OSCAR) data for each facility over the past 45

13  months. Such summary may include a score, rating, or

14  comparison ranking with respect to other facilities based on

15  the number of citations received by the facility on annual,

16  revisit, and complaint surveys; the severity and scope of the

17  citations; the number of citations; and the number of annual

18  recertification surveys the facility has had during the past

19  45 months. The score, rating, or comparison ranking may be

20  presented in either numeric or symbolic form for the intended

21  consumer audience.

22         (c)  For purposes of this subsection, references to the

23  Online Survey Certification and Reporting (OSCAR) system shall

24  refer to any future system that the Health Care Financing

25  Administration develops to replace the current OSCAR system.

26         (d)  The agency may provide the following additional

27  information on an Internet site or in printed form as the

28  information becomes available:

29         1.  The licensure status history of each facility.

30         2.  The rating history of each facility.

31

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  1         3.  The regulatory history of each facility, which may

  2  include federal sanctions, state sanctions, federal fines,

  3  state fines, and other actions.

  4         4.  Whether the facility currently possesses the Gold

  5  Seal designation awarded pursuant to s. 400.235.

  6         5.  Internet links to the Internet sites of the

  7  facilities or their affiliates.

  8         (6)  The agency may adopt rules as necessary to

  9  administer this section.

10         Section 60.  Section 400.0225, Florida Statutes, as

11  amended by section 2 of chapter 2000-350, Laws of Florida, is

12  reenacted to read:

13         400.0225  Consumer satisfaction surveys.--The agency,

14  or its contractor, in consultation with the nursing home

15  industry and consumer representatives, shall develop an

16  easy-to-use consumer satisfaction survey, shall ensure that

17  every nursing facility licensed pursuant to this part

18  participates in assessing consumer satisfaction, and shall

19  establish procedures to ensure that, at least annually, a

20  representative sample of residents of each facility is

21  selected to participate in the survey. The sample shall be of

22  sufficient size to allow comparisons between and among

23  facilities. Family members, guardians, or other resident

24  designees may assist the resident in completing the survey.

25  Employees and volunteers of the nursing facility or of a

26  corporation or business entity with an ownership interest in

27  the facility are prohibited from assisting a resident with or

28  attempting to influence a resident's responses to the consumer

29  satisfaction survey. The agency, or its contractor, shall

30  survey family members, guardians, or other resident designees.

31  The agency, or its contractor, shall specify the protocol for

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  1  conducting and reporting the consumer satisfaction surveys.

  2  Reports of consumer satisfaction surveys shall protect the

  3  identity of individual respondents. The agency shall contract

  4  for consumer satisfaction surveys and report the results of

  5  those surveys in the consumer information materials prepared

  6  and distributed by the agency. The agency may adopt rules as

  7  necessary to administer this section.

  8         Section 61.  Subsections (4) and (5) of section

  9  400.141, Florida Statutes, as renumbered and amended by

10  section 4 of chapter 2000-350, Laws of Florida, are reenacted

11  to read:

12         400.141  Administration and management of nursing home

13  facilities.--Every licensed facility shall comply with all

14  applicable standards and rules of the agency and shall:

15         (4)  Provide for resident use of a community pharmacy

16  as specified in s. 400.022(1)(q). Any other law to the

17  contrary notwithstanding, a registered pharmacist licensed in

18  Florida, that is under contract with a facility licensed under

19  this chapter, shall repackage a nursing facility resident's

20  bulk prescription medication which has been packaged by

21  another pharmacist licensed in any state in the United States

22  into a unit dose system compatible with the system used by the

23  nursing facility, if the pharmacist is requested to offer such

24  service. To be eligible for repackaging, a resident or the

25  resident's spouse must receive prescription medication

26  benefits provided through a former employer as part of his or

27  her retirement benefits a qualified pension plan as specified

28  in s. 4972 of the Internal Revenue Code, a federal retirement

29  program as specified under 5 C.F.R. s. 831, or a long-term

30  care policy as defined in s. 627.9404(1). A pharmacist who

31  correctly repackages and relabels the medication and the

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  1  nursing facility which correctly administers such repackaged

  2  medication under the provisions of this subsection shall not

  3  be held liable in any civil or administrative action arising

  4  from the repackaging. In order to be eligible for the

  5  repackaging, a nursing facility resident for whom the

  6  medication is to be repackaged shall sign an informed consent

  7  form provided by the facility which includes an explanation of

  8  the repackaging process and which notifies the resident of the

  9  immunities from liability provided herein. A pharmacist who

10  repackages and relabels prescription medications, as

11  authorized under this subsection, may charge a reasonable fee

12  for costs resulting from the implementation of this provision.

13         (5)  Provide for the access of the facility residents

14  to dental and other health-related services, recreational

15  services, rehabilitative services, and social work services

16  appropriate to their needs and conditions and not directly

17  furnished by the licensee.  When a geriatric outpatient nurse

18  clinic is conducted in accordance with rules adopted by the

19  agency, outpatients attending such clinic shall not be counted

20  as part of the general resident population of the nursing home

21  facility, nor shall the nursing staff of the geriatric

22  outpatient clinic be counted as part of the nursing staff of

23  the facility, until the outpatient clinic load exceeds 15 a

24  day.

25

26  Facilities that have been awarded a Gold Seal under the

27  program established in s. 400.235 may develop a plan to

28  provide certified nursing assistant training as prescribed by

29  federal regulations and state rules and may apply to the

30  agency for approval of its program.

31

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  1         Section 62.  Paragraph (a) of subsection (3) and

  2  subsection (4) of section 400.235, Florida Statutes, as

  3  amended by section 12 of chapter 2000-305 and section 7 of

  4  chapter 2000-350, Laws of Florida, and subsection (9) of

  5  section 400.235, Florida Statutes, as created by section 7 of

  6  chapter 2000-350, Laws of Florida, are reenacted to read:

  7         400.235  Nursing home quality and licensure status;

  8  Gold Seal Program.--

  9         (3)(a)  The Gold Seal Program shall be developed and

10  implemented by the Governor's Panel on Excellence in Long-Term

11  Care which shall operate under the authority of the Executive

12  Office of the Governor. The panel shall be composed of three

13  persons appointed by the Governor, to include a consumer

14  advocate for senior citizens and two persons with expertise in

15  the fields of quality management, service delivery excellence,

16  or public sector accountability; three persons appointed by

17  the Secretary of Elderly Affairs, to include an active member

18  of a nursing facility family and resident care council and a

19  member of the University Consortium on Aging; the State

20  Long-Term Care Ombudsman; one person appointed by the Florida

21  Life Care Residents Association; one person appointed by the

22  Secretary of Health; two persons appointed by the Secretary of

23  Health Care Administration; one person appointed by the

24  Florida Association of Homes for the Aging; and one person

25  appointed by the Florida Health Care Association. Vacancies on

26  the panel shall be filled in the same manner as the original

27  appointments.

28         (4)  The panel shall consider the quality of care

29  provided to residents when evaluating a facility for the Gold

30  Seal Program. The panel shall determine the procedure or

31  procedures for measuring the quality of care.

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  1         (9)  The agency may adopt rules as necessary to

  2  administer this section.

  3         Section 63.  Subsection (1) of section 400.962, Florida

  4  Statutes, as amended by section 8 of chapter 2000-350, Laws of

  5  Florida, is reenacted to read:

  6         400.962  License required; license application.--

  7         (1)  It is unlawful to operate an intermediate care

  8  facility for the developmentally disabled without a license.

  9         Section 64.  Section 10 of chapter 2000-350, Laws of

10  Florida, is reenacted to read:

11         Section 10.  The Board of Pharmacy, in cooperation with

12  the Agency for Health Care Administration, shall undertake a

13  study of the feasibility, efficiency, cost-effectiveness, and

14  safety of using automated medication dispensing machines in

15  nursing facilities. The board and the agency may authorize the

16  establishment of demonstration projects in up to five nursing

17  facilities with a class I institutional pharmacy as part of

18  the study. Demonstration projects may be allowed to continue

19  for up to 12 months. A report summarizing the results of the

20  study shall be submitted by the board and the agency to the

21  Speaker of the House of Representatives and the President of

22  the Senate by January 1, 2001. If the study determines that

23  such dispensing machines would benefit residents of nursing

24  facilities and should be allowed, the report shall identify

25  those specific statutory changes necessary to allow nursing

26  facilities to use automated medication dispensing machines.

27         Section 65.  Present subsection (7) of section 627.351,

28  Florida Statutes, is redesignated as subsection (8), and a new

29  subsection (7) is added to that section, to read:

30         627.351  Insurance risk apportionment plans.--

31

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  1         (7)  SENIOR-CARE-FACILITY JOINT UNDERWRITING

  2  ASSOCIATION.--

  3         (a)  There is created a joint underwriting association

  4  for senior-care facilities that are in good faith entitled,

  5  but are unable, to procure liability insurance coverage

  6  through the voluntary market, which is designated as the

  7  Senior-Care-Facility Joint Underwriting Association. As used

  8  in this subsection, the term "senior-care facility" means a

  9  long-term-care facility as defined in s. 400.0060(2), a

10  nursing home facility as defined in s. 400.021(12), a

11  continuing care facility as licensed under s. 651.021, or an

12  assisted living facility as licensed under s. 400.407. A

13  senior-care facility any part of which is licensed under part

14  II or part III of chapter 400 is eligible to participate in a

15  joint underwriting association if it meets criteria in the

16  plan developed pursuant to paragraph (b).

17         (b)  The association shall operate pursuant to a plan

18  of operation approved by order of the department. The plan is

19  subject to continuous review by the department. The department

20  may, by order, withdraw approval of all or part of the plan if

21  the department determines that conditions have changed since

22  approval was granted and the purposes of the plan require

23  changes in the plan.

24         (c)  All insurers authorized to write one or more

25  subject lines of business in this state must participate in

26  the association. An authorized insurer's participation begins

27  on the first day of the calendar year in which the insurer was

28  issued a certificate of authority to transact insurance for

29  one or more subject lines of business in this state and

30  terminates 1 year after the end of the first calendar year

31  during which the member no longer holds a certificate of

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  1  authority to transact insurance for subject lines of business

  2  in this state. All such insurers shall be referred to in this

  3  subsection as "participating insurers." As used in this

  4  subsection, the term "subject lines of business" means

  5  liability insurance as defined in s. 624.605(1)(b) which is

  6  written in this state and does not include other casualty

  7  insurance lines defined in s. 624.605 or homeowners liability

  8  insurance which is reported as property insurance on financial

  9  statements submitted to the department.

10         (d)  The association shall operate subject to the

11  supervision and approval of a board of governors consisting of

12  seven individuals appointed by the Insurance Commissioner. The

13  Insurance Commissioner shall designate one of the appointees

14  as chair. All board members shall serve at the pleasure of the

15  Insurance Commissioner. All board members, including the

16  chair, shall be appointed to 3-year terms, beginning annually

17  on the date designated by the plan.

18         (e)  The plan of operation of the association must

19  include, but need not be limited to:

20         1.  Standards for establishing eligibility of a risk

21  for obtaining liability insurance through the association,

22  including underwriting standards.

23         2.  Rules for classifying risks and rates which

24  correspond to past and prospective loss experience. Such rules

25  may reflect whether the facility operates on a for-profit or

26  not-for-profit basis.

27         3.  A rating plan that corresponds to the prior claims

28  experience of the insureds.

29         4.  The association may offer primary coverage not to

30  exceed $250,000 per claim and a maximum annual aggregate of

31  $500,000. However, such limits may not be less than the

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  1  amounts of insurance required of eligible risks by state law.

  2  Any offer of primary coverage by the private market to an

  3  insured would make that insured ineligible for underwriting by

  4  the association.

  5         5.  A risk-management program for insureds of the

  6  association. This program must include, but need not be

  7  limited to:

  8         a.  Investigation and analysis of the frequency,

  9  severity, and causes of claims.

10         b.  Developmental measures to avoid and control claims.

11         c.  Systematic reporting of accidents or injuries to

12  facility residents.

13         d.  Investigation and analysis of resident complaints.

14         e.  Auditing of association members to ensure

15  implementation of this program.

16         6.  A requirement that coverage by the association

17  exclude coverage for punitive damages.

18         7.  A requirement that coverage by the association does

19  not include coverage for the professional liability of persons

20  or entities providing professional services, pursuant to

21  professional licensure, through or on behalf of the facility.

22         8.  A requirement that coverage be limited to claims

23  made.

24         (f)  The association may refuse to insure any facility

25  that fails to comply with the risk-management program required

26  by the plan.

27         (g)  If an operating deficit, determined on the basis

28  of generally accepted accounting principles, exists for any

29  calendar year the plan is in effect, any surplus that has

30  accrued from previous years and is not projected within

31  reasonable actuarial certainty to be needed for payment of

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  1  claims in the year the surplus arose shall be used to offset

  2  the deficit to the extent available.

  3         1.  If an operating deficit remains, each policyholder

  4  who had an in-force policy at any time during the calendar

  5  year with an operating deficit shall pay to the association a

  6  premium contingency assessment that may not exceed one-third

  7  of the annual premium payment paid by the policyholder to the

  8  association for that in-force policy. The association shall

  9  cancel any policy for a policyholder who fails to pay the

10  premium contingency assessment and shall deduct the premium

11  contingency assessment from the policyholder's return premium

12  if any.

13         2.  If there is any remaining operating deficit under

14  the plan after maximum billing of the premium contingency

15  assessment, the association shall levy and collect assessments

16  from participating insurers in an amount sufficient to offset

17  such deficit. Such assessments must first be levied against

18  the insurers participating in the plan during the year giving

19  rise to the assessment. Any assessments against the

20  participating insurers must be in the proportion that the net

21  direct written premium of each insurer for the subject lines

22  of business during the preceding calendar year bears to the

23  aggregate net direct premium written for the subject lines of

24  business by all participating insurers.  The assessment levied

25  against any insurer for any calendar year deficit may not

26  exceed 1 percent of that insurer's net direct written premium

27  for the subject lines of business during the calendar year

28  preceding the deficit. If additional assessments are required

29  to extinguish the deficit incurred by the association for a

30  calendar year, additional assessments shall be made in

31  immediately following calendar years against those

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  1  participating insurers who were initially assessed for the

  2  deficit. These additional assessments may not exceed a total

  3  of 5 percent of the insurer's net direct written premium for

  4  the subject lines of business during the calendar year

  5  immediately preceding the calendar year in which the deficit

  6  was incurred. If these assessments are insufficient to

  7  completely extinguish the deficit that the association

  8  incurred in any calendar year, the amount of the

  9  unextinguished deficit incurred shall be carried forward as a

10  deficit of the calendar year immediately following the

11  calendar year in which the deficit was incurred and the

12  unextinguished deficit shall be assessed as a deficit of that

13  calendar year in the manner described in this section until

14  the deficit is completely extinguished.

15         3.  The board shall take all reasonable and prudent

16  steps necessary to collect the amount of the assessment due

17  from each participating insurer, including, if prudent, filing

18  suit to collect such assessment. If the board is unable to

19  collect an assessment from any insurer, the uncollected

20  assessments shall be levied as an additional assessment

21  against the participating insurers. Any participating insurer

22  required to pay an additional assessment as the result of such

23  failure to pay shall have a cause of action against the

24  nonpaying insurer.

25         (h)  Rate filings of the association must be made

26  pursuant to s. 627.062, and such rates shall not be

27  competitive with the authorized market.

28         (i)  Agent commissions for placing coverage with the

29  association shall be no more than 5 percent of the premium.

30         (j)  After July 1, 2004, no new or renewal policies of

31  insurance may be written.

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  1         Section 66.  The sum of $500,000 is appropriated from

  2  the General Revenue Fund for the Senior-Care-Facility Joint

  3  Underwriting Association.

  4         Section 67.  The sum of $5,251,821 is appropriated from

  5  the Health Care Trust Fund to the Agency for Health Care

  6  Administration and 76.5 positions are authorized for the

  7  purpose of implementing the provisions of this act during the

  8  2001-2002 fiscal year.

  9         Section 68.  The sum of $100,000 is appropriated from

10  the General Revenue Fund to the Department of Elderly Affairs

11  for the purpose of paying the salaries and other

12  administrative expenses of the Office of State Long-Term Care

13  Ombudsman to carry out the provisions of this act during the

14  2001-2002 fiscal year.

15         Section 69.  If any provision of this act or its

16  application to any person or circumstance is held invalid, the

17  invalidity does not affect other provisions or applications of

18  the act which can be given effect without the invalid

19  provision or application, and to this end the provisions of

20  this act are severable.

21         Section 70.  Except as otherwise expressly provided in

22  this act, this act shall take effect upon becoming a law.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                      CS for CS for SB 1202

  3

  4  Removes language that prohibits the concealment of information
    relating to the settlement or resolution of a claim or action
  5  and the requirement to submit certain documents to the agency
    related to settlements or resolution of claims for nursing
  6  homes and assisted living facilities.

  7  Provides that nursing home rates are set annually and shall be
    $50 per bed. Provides that the agency may adjust the per bed
  8  licensure fee by the CPI based on the 12 months preceding the
    increase.  Revises the minimum deposit threshold in the
  9  Resident Protection Trust Fund from $500,000 to $1,000,000 and
    allows rate adjustments to maintain the balance. Increases the
10  available balance in the trust fund from $800,000 to
    $2,000,000 before reversion of excess funds to the Health Care
11  Trust Fund are required.

12  Requires licensee disclosures of bankruptcy, licensed denials,
    suspensions, revocations or injunctions.
13
    Adds "licensed speech or occupational therapist" in addition
14  to a licensed nurse or a registered dietitian who must conduct
    training of dining and hospitality attendants.
15
    Requires nursing homes to maintain liability insurance
16  coverage which is in force at all times and removes the
    requirement for nursing homes to maintain minimum liability
17  insurance coverage of $250,000 per claim with an annual
    aggregate amount of $500,000.
18
    Revises the Medicaid "Up-or-Out" Quality of Care Contract
19  Management Program pilot project from implementing in the 100
    highest-scoring nursing homes to implementing in the highest
20  scoring homes in counties where Evercare services are
    immediately available, subject to an appropriation.
21
    Reinstates current law related to the definition of "managed
22  risk" for assisted living facilities.

23  Provides for a minimum standard licensure fee of $261 for
    assisted living facilities, provides that the agency may
24  adjust the per bed assisted living facility licensure fees by
    the CPI based on the 12 months immediately preceding the
25  increase, removes language that modified the licensure fee for
    extended congregate care services and limited nursing services
26  in assisted living facilities and reinstates current law.

27  Reinstates current law related to not imposing a fine on an
    ALF if a class III violation is corrected within the specified
28  time period, unless it is a repeated offense.

29  Provides that adverse incident reports and preliminary adverse
    incident reports are confidential and not discoverable or
30  admissible in any civil or administrative action except in
    disciplinary proceedings.
31
    Removes the requirements to amend the Medicaid long-term-care
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  1  reimbursement plan to create direct-care and indirect-care
    subcomponents of the patient-care component of the per-diem
  2  rate.

  3  Removes surplus lines insurers from participating insurers.

  4  Provides for an appropriation of $5,251,821 from the Health
    Care Trust Fund and 76.5 FTE to the Agency for Health Care
  5  Administration to implement the provisions of the act in FY
    2001-02.
  6
    Reduces the appropriation to the State Long-Term Care
  7  Ombudsman from $948,782 to $100,000 from the General Revenue
    Fund in FY 2001-02.
  8

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