House Bill hb1581

CODING: Words stricken are deletions; words underlined are additions.




    Florida House of Representatives - 2001                HB 1581

        By Representative Frankel






  1                      A bill to be entitled

  2         An act relating to nursing homes and related

  3         facilities; amending s. 400.071, F.S.;

  4         requiring a plan for quality assurance and risk

  5         management as a condition for licensure;

  6         amending s. 400.102, F.S.; providing additional

  7         grounds for certain actions by the Agency for

  8         Health Care Administration against a nursing

  9         home; creating s. 400.117, F.S.; requiring each

10         nursing home to maintain a quality assessment

11         and assurance committee; providing membership

12         and duties; providing for a quality improvement

13         program; providing for monitoring of the

14         provision of care and review of the staff

15         education plan; amending s. 400.121, F.S.;

16         increasing penalties; requiring, rather than

17         authorizing, license suspension or revocation,

18         or moratorium on admissions, under certain

19         conditions; providing an additional condition

20         for imposition of a moratorium; reducing

21         timeframes for certain license suspensions and

22         revocation hearings; reenacting s. 400.125,

23         F.S., relating to authorization for injunction;

24         amending s. 400.126, F.S.; providing for

25         petition to the court for appointment of a

26         receiver for a nursing home that fails to

27         maintain required minimum staffing levels;

28         requiring such petition to the court under

29         certain circumstances; providing conditions for

30         operation and termination of receivership;

31         authorizing the agency to adopt rules; creating

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         s. 400.1411, F.S.; providing requirements for a

  2         facility's physical environment; creating s.

  3         400.1412, F.S.; specifying quality of care

  4         requirements; requiring certain daily charting;

  5         creating s. 400.14125, F.S.; specifying

  6         requirements for resident assessment and plan

  7         of care; creating s. 400.1413, F.S.; specifying

  8         minimum staffing requirements; creating s.

  9         400.1414, F.S.; requiring each facility to

10         implement a staff education plan; specifying

11         education requirements; amending s. 400.1415,

12         F.S.; increasing penalty for alteration of

13         records; creating s. 400.1416, F.S.; requiring

14         designation of a full-time employee to be

15         responsible for a facility's medical records;

16         providing requirements for maintenance of

17         medical records; creating s. 400.1417, F.S.;

18         providing requirements for maintenance of

19         fiscal records; amending s. 400.19, F.S.;

20         deleting requirement for permission prior to

21         certain entry and inspection of a facility;

22         creating s. 400.201, F.S.; providing

23         requirements for physician services; requiring

24         a medical director for certain facilities;

25         creating s. 400.203, F.S.; providing

26         requirements for dietary services; requiring

27         designation of a full-time employee as a

28         dietary services supervisor; amending s.

29         400.23, F.S.; providing for rules relating to

30         resident assessment and plan of care;

31         increasing penalties for deficient practices;

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         amending s. 400.241, F.S.; increasing a penalty

  2         for violation of minimum standards; providing

  3         penalties for failure of a nursing home to

  4         maintain required minimum staffing levels;

  5         creating s. 400.351, F.S.; establishing a

  6         nursing home internal risk management program;

  7         requiring employment of a facility internal

  8         risk manager; providing for rules; providing

  9         responsibilities; providing for certain

10         immunity from liability; providing reporting

11         requirements; providing penalties, including a

12         penalty for false allegations; providing for

13         agency review of internal risk management

14         programs; creating s. 400.353, F.S.; providing

15         for private utilization review of nursing home

16         services; providing for registration of agents;

17         providing a fee; providing for background

18         screening; providing penalties; providing for

19         rules; creating s. 400.354, F.S.; providing

20         agency procedures for investigation of

21         complaints against a nursing home; creating s.

22         400.355, F.S.; providing purpose relating to

23         minimum standards for nursing home risk

24         managers; creating s. 400.356, F.S.; providing

25         for appointment of a Nursing Home Risk Manager

26         Advisory Council; creating s. 400.357, F.S.;

27         providing powers and duties of the agency

28         relating to standards, licensing, and

29         disciplining of nursing home risk managers;

30         creating s. 400.358, F.S.; providing for

31         issuance of licenses; creating s. 400.359,

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         F.S.; providing grounds for denial, suspension,

  2         or revocation of a license; providing

  3         administrative fines; amending s. 408.040,

  4         F.S.; providing additional grounds for denial

  5         of certificate of need for a nursing home or

  6         related facility; amending ss. 458.331 and

  7         459.015, F.S.; providing for agency

  8         investigation of adverse incident occurrences

  9         that may constitute grounds for disciplinary

10         action against a physician; amending s.

11         400.063, F.S.; correcting a cross reference;

12         prohibiting a nursing home or assisted living

13         facility from taking retaliatory action against

14         any person who discloses unlawful acts of the

15         entity or its employees; providing a cause of

16         action for aggrieved persons; authorizing

17         specified court actions; requiring health care

18         entities to provide notice on their premises

19         that such retaliatory action is not permitted;

20         providing definitions; requiring reports;

21         providing for use of certain funds for wage and

22         benefit increases for certain nursing home

23         staff; requiring the Auditor General to develop

24         and submit to the agency a standard chart of

25         accounts for Medicaid long-term care provider

26         cost reports; requiring the agency to implement

27         the chart of accounts by a specified date;

28         repealing s. 400.118, F.S., relating to the

29         quality assurance early warning system,

30         monitoring, and rapid response teams; providing

31         an appropriation; providing an effective date.

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






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

  2

  3         Section 1.  Subsections (9) and (10) of section

  4  400.071, Florida Statutes, are renumbered as subsections (10)

  5  and (11), respectively, and a new subsection (9) is added to

  6  said section to read:

  7         400.071  Application for license.--

  8         (9)  As a condition of licensure, each facility must

  9  establish and submit with its application a plan for quality

10  assurance and risk management.

11         Section 2.  Subsection (1) of section 400.102, Florida

12  Statutes, is amended to read:

13         400.102  Action by agency against licensee; grounds.--

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

15  for action by the agency against a licensee:

16         (a)  An intentional or negligent act materially

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

18         (b)  Misappropriation or conversion of the property of

19  a resident of the facility;

20         (c)  Failure to follow the criteria and procedures

21  provided under part I of chapter 394 relating to the

22  transportation, voluntary admission, and involuntary

23  examination of a nursing home resident;

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

25  adopted under this part; or

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

27  medical or other nursing home record, or causing or procuring

28  any of these offenses to be committed;

29         (f)  A demonstrated pattern of deficient practices;

30         (g)  Failure to pay any outstanding fines assessed by

31  final agency order or fines assessed by the Health Care

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  Financing Administration pursuant to requirements for federal

  2  Medicare certification;

  3         (h)  Exclusion from the Medicare or Medicaid programs;

  4  or

  5         (i)(e)  Any act constituting a ground upon which

  6  application for a license may be denied.

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

  8  contain the following:

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

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

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

12  identification number (EIN), and the name and address of every

13  member; if the applicant is a corporation, its name, address,

14  and employer identification number (EIN), and the name and

15  address of its director and officers and of each person having

16  at least a 5 percent interest in the corporation; and the name

17  by which the facility is to be known.

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

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

20  owns at least a 10 percent interest in any professional

21  service, firm, association, partnership, or corporation

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

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

24  professional service, firm, association, partnership, or

25  corporation in which such interest is held.

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

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

28  that such location conforms to the local zoning ordinances.

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

30  management or supervision the facility will be conducted and

31  the name of its licensed administrator.

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (e)  The total number of beds and the total number of

  2  Medicare and Medicaid certified beds.

  3         (f)  Information relating to the number, experience,

  4  and training of the employees of the facility and of the moral

  5  character of the applicant and employees which the agency

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

  7  nursing home with which the applicant or employees have been

  8  affiliated through ownership or employment within 5 years of

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

10  any criminal convictions involving the applicant and any

11  criminal convictions involving an employee if known by the

12  applicant after inquiring of the employee.  The applicant must

13  demonstrate that sufficient numbers of qualified staff, by

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

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

16  facility.

17         (g)  Copies of any civil verdict or judgment involving

18  the applicant rendered within the 10 years preceding the

19  application, relating to medical negligence, violation of

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

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

22  of any new verdict or judgment involving the applicant,

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

24  clerk of the court.  The information required in this

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

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

27  record.

28         Section 3.  Section 400.117, Florida Statutes, is

29  created to read:

30         400.117  Quality assessment and assurance committee.--

31

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (1)  The facility shall maintain a quality assessment

  2  and assurance committee consisting of the facility

  3  administrator, director of nursing, medical director, and at

  4  least three other members of the facility's staff.

  5         (2)  The quality assessment and assurance committee

  6  shall meet at least monthly to develop and review facility

  7  policies and procedures, to identify issues to which quality

  8  assessment and assurance activities are necessary, and to

  9  develop plans of action to correct identified quality

10  deficiencies.

11         (3)  The quality assessment and assurance committee

12  shall design a quality improvement program to enhance the

13  quality of nursing home care. The program shall emphasize

14  quality resident outcomes, corrective action for problems, and

15  reporting to the agency of standardized data elements

16  necessary to analyze quality of care outcomes. The committee

17  shall use existing data, when available, and shall not

18  duplicate the efforts of other entities in order to obtain

19  such data.

20         (4)  The quality assessment and assurance committee

21  shall monitor, on a monthly basis, the provision of care to

22  residents by direct care staff, to ensure compliance with this

23  part.

24         (5)  The quality assessment and assurance committee

25  shall review the facility's staff education plan at least

26  annually, and revise the plan as needed.

27         Section 4.  Section 400.121, Florida Statutes, is

28  amended to read:

29         400.121  Denial, suspension, revocation of license;

30  moratorium on admissions; administrative fines; procedure;

31  order to increase staffing.--

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






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

  2  or impose an administrative fine, not to exceed $1,000 $500

  3  per violation per day, for a violation of any provision of s.

  4  400.102(1).  All hearings shall be held within the county in

  5  which the licensee or applicant operates or applies for a

  6  license to operate a facility as defined herein.

  7         (2)  The agency, as a part of any final order issued by

  8  it under this part, may impose such fine as it deems proper,

  9  except that such fine may not exceed $1,000 $500 for each

10  violation. Each day a violation of this part occurs

11  constitutes a separate violation and is subject to a separate

12  fine, but in no event may any fine aggregate more than $10,000

13  $5,000.  A fine may be levied pursuant to this section in lieu

14  of and notwithstanding the provisions of s. 400.23. Fines paid

15  by any nursing home facility licensee under this subsection

16  shall be deposited in the Resident Protection Trust Fund and

17  expended as provided in s. 400.063.

18         (3)  The agency shall may issue an order immediately

19  suspending or revoking a license when it determines that any

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

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

22         (4)(a)  The agency shall may impose an immediate

23  moratorium on admissions to any facility when the agency

24  determines that any condition in the facility presents a

25  threat to the health, safety, or welfare of the residents in

26  the facility.

27         (b)  The facility shall notify the agency in writing,

28  by facsimile machine, within 24 hours, any time staffing

29  levels fall below the minimum requirements provided in s.

30  400.1413(1)(a). The agency shall impose an immediate

31  moratorium on admissions to a facility when the agency

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  determines that staffing levels have fallen below such minimum

  2  requirements during 10 days, or for 3 consecutive days, within

  3  a 30-day period.

  4         (c)(b)  Where the agency has placed a moratorium on

  5  admissions on any facility two times within a 5-year 7-year

  6  period, the agency may suspend the license of the nursing home

  7  and the facility's management company, if any.  The licensee

  8  shall be afforded an administrative hearing within 60 90 days

  9  after the suspension to determine whether the license should

10  be revoked. During the suspension, the agency shall take the

11  facility into receivership and shall operate the facility.

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

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

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

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

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

17  Administrative Hearings of the Department of Management

18  Services within 90 120 days after receipt of the facility's

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

20  both parties.  The administrative law judge must render a

21  decision within 30 days after receipt of a proposed

22  recommended order.  This subsection does not modify the

23  requirement that an administrative hearing be held within 60

24  90 days after a license is suspended under paragraph (4)(b).

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

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

27  agency has taken administrative action against the facility

28  for care-related deficiencies directly attributable to

29  insufficient staff. Under such circumstances, the facility may

30  request an expedited interim rate increase. The agency shall

31  process the request within 10 days after receipt of all

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  required documentation from the facility. A facility that

  2  fails to maintain the required increased staffing is subject

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

  4  the level required by the agency.

  5         Section 5.  Section 400.125, Florida Statutes, is

  6  reenacted to read:

  7         400.125  Injunction proceedings authorized.--

  8         (1)  The agency may institute injunction proceedings in

  9  a court of competent jurisdiction to:

10         (a)  Enforce the provisions of this part or any minimum

11  standard, rule, or order issued or entered into pursuant

12  thereto; or

13         (b)  Terminate the operation of a home where any of the

14  following exist:

15         1.  Failure to take preventive or corrective measures

16  in accordance with any order of the agency.

17         2.  Failure to abide by any final order of the agency

18  once it has become effective and binding.

19         3.  Any violation as provided in s. 400.121

20  constituting an emergency requiring immediate action.

21         (2)  Such injunctive relief may include temporary and

22  permanent injunction.

23         Section 6.  Paragraph (e) is added to subsection (1) of

24  section 400.126, Florida Statutes, present subsection (2) is

25  redesignated as subsection (3) and present subsections (3)

26  through (11) are redesignated as subsections (5) through (13),

27  respectively, and new subsections (2) and (4) are added to

28  said section, to read:

29         400.126  Receivership proceedings.--

30         (1)  As an alternative to or in conjunction with an

31  injunctive proceeding, the agency may petition a court of

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  competent jurisdiction for the appointment of a receiver, when

  2  any of the following conditions exist:

  3         (e)  The agency determines that the facility cannot

  4  meet minimum staffing levels as required pursuant to s.

  5  400.23(3)(e).

  6         (2)  The agency shall petition a court of competent

  7  jurisdiction for the appointment of a receiver for a facility

  8  in any case where:

  9         (a)  The agency has filed an administrative complaint

10  to revoke the facility's license; or

11         (b)  The facility has received a "notice to terminate"

12  from Medicare or Medicaid.

13         (4)  Upon appointment by the court of a receiver, the

14  receiver shall operate the facility in accordance with this

15  section until:

16         (a)  The facility has been sold to new ownership; or

17         (b)  The facility has been brought into compliance with

18  all applicable care standards and the licensee has satisfied

19  the agency that it has the means and intent to operate the

20  facility in full compliance with all state and federal

21  standards.

22

23  The agency may adopt rules necessary to administer this

24  subsection.

25         Section 7.  Section 400.1411, Florida Statutes, is

26  created to read:

27         400.1411  Physical environment.--Each facility shall

28  provide:

29         (1)  A safe, clean, comfortable, and homelike

30  environment, which allows the resident to use his or her

31  personal belongings to the extent possible.

                                  12

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (2)  Housekeeping and maintenance services necessary to

  2  maintain a sanitary, orderly, and comfortable interior.

  3         (3)  Clean bed and bath linens that are in good

  4  condition.

  5         (4)  Private closet space for each resident.

  6         (5)  Furniture, such as a bedside cabinet, and drawer

  7  space.

  8         (6)  Adequate and comfortable lighting levels in all

  9  areas.

10         (7)  Comfortable and safe temperature levels.

11         (8)  The maintenance of comfortable sound levels.

12  Individual radios, TVs, and other such transmitters belonging

13  to the resident shall be tuned to stations of the resident's

14  choice.

15         Section 8.  Section 400.1412, Florida Statutes, is

16  created to read:

17         400.1412  Quality of care.--Each resident must receive,

18  and the facility must provide, the necessary care and services

19  to attain or maintain the highest practicable physical,

20  mental, and psychosocial well-being, in accordance with the

21  comprehensive assessment and plan of care.

22         (1)  ACTIVITIES OF DAILY LIVING.--Based on the

23  comprehensive assessment of a resident, the facility must

24  ensure that:

25         (a)  A resident's abilities in activities of daily

26  living do not diminish unless circumstances of the

27  individual's clinical condition demonstrate that diminution

28  was unavoidable, including the resident's ability to:

29         1.  Bathe, dress, and groom.

30         2.  Transfer and ambulate.

31         3.  Use the toilet.

                                  13

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         4.  Eat.

  2         5.  Use speech, language, or other functional

  3  communication systems.

  4         (b)  A resident is given the appropriate treatment and

  5  services to maintain or improve his or her abilities specified

  6  in paragraph (a).

  7         (c)  A resident who is unable to carry out activities

  8  of daily living receives the necessary services to maintain

  9  good nutrition, grooming, and personal and oral hygiene.

10         (2)  VISION AND HEARING.--To ensure that residents

11  receive proper treatment and assistive devices to maintain

12  vision and hearing abilities, the facility must, if necessary,

13  assist the resident:

14         (a)  In making appointments.

15         (b)  By arranging for transportation to and from the

16  office of a practitioner specializing in the treatment of

17  vision or hearing impairment or the office of a professional

18  specializing in the provision of vision or hearing assistive

19  devices.

20         (3)  PRESSURE SORES.--Based on the comprehensive

21  assessment of a resident, the facility must ensure that:

22         (a)  A resident who enters the facility without

23  pressure sores does not develop pressure sores unless the

24  individual's clinical condition demonstrates that they were

25  unavoidable.

26         (b)  A resident having pressure sores receives

27  necessary treatment and services to promote healing, prevent

28  infection, and prevent new sores from developing.

29         (4)  URINARY INCONTINENCE.--Based on the resident's

30  comprehensive assessment, the facility must ensure that:

31

                                  14

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (a)  A resident who enters the facility without an

  2  indwelling catheter is not catheterized unless the resident's

  3  clinical condition demonstrates that catheterization was

  4  necessary.

  5         (b)  A resident who is incontinent of bladder receives

  6  appropriate treatment and services to prevent urinary tract

  7  infections and to restore as much normal bladder function as

  8  possible.

  9         (5)  RANGE OF MOTION.--Based on the comprehensive

10  assessment of a resident, the facility must ensure that:

11         (a)  A resident who enters the facility without a

12  limited range of motion does not experience reduction in range

13  of motion unless the resident's clinical condition

14  demonstrates that a reduction in range of motion is

15  unavoidable.

16         (b)  A resident with a limited range of motion receives

17  appropriate treatment and services to increase range of motion

18  or to prevent further decrease in range of motion.

19         (6)  MENTAL AND PSYCHOSOCIAL FUNCTIONING.--Based on the

20  comprehensive assessment of a resident, the facility must

21  ensure that:

22         (a)  A resident who displays mental or psychosocial

23  adjustment difficulty receives appropriate treatment and

24  services to correct the assessed problem.

25         (b)  A resident whose assessment did not reveal a

26  mental or psychosocial adjustment difficulty does not display

27  a pattern of decreased social interaction or increased

28  withdrawn, angry, or depressive behaviors, unless the

29  resident's clinical condition demonstrates that such a pattern

30  was unavoidable.

31

                                  15

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (7)  NASOGASTRIC TUBES.--Based on the comprehensive

  2  assessment of a resident, the facility must ensure that:

  3         (a)  A resident who has been able to eat enough alone

  4  or with assistance is not fed by nasogastric tube unless the

  5  resident's clinical condition demonstrates that use of a

  6  nasogastric tube was unavoidable.

  7         (b)  A resident who is fed by a nasogastric or

  8  gastrostomy tube receives the appropriate treatment and

  9  services to prevent aspiration pneumonia, diarrhea, vomiting,

10  dehydration, metabolic abnormalities, and nasal-pharyngeal

11  ulcers and to restore, if possible, normal eating skills.

12         (8)  ACCIDENTS.--The facility must ensure that:

13         (a)  The residents' environment remains as free of

14  accident hazards as is possible.

15         (b)  Each resident receives adequate supervision and

16  assistance devices to prevent accidents.

17         (9)  NUTRITION.--Based on a resident's comprehensive

18  assessment, the facility must ensure that a resident:

19         (a)  Maintains acceptable parameters of nutritional

20  status, such as body weight and protein levels, unless the

21  resident's clinical condition demonstrates that this is not

22  possible.

23         (b)  Receives a therapeutic diet when there is a

24  nutritional problem.

25         (10)  HYDRATION.--The facility must provide each

26  resident with sufficient fluid intake to maintain proper

27  hydration and health.

28         (11)  SPECIAL NEEDS.--The facility must ensure that

29  residents receive proper treatment and care for the following

30  special services:

31         (a)  Injections.

                                  16

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (b)  Parenteral and enteral fluids.

  2         (c)  Colostomy, ureterostomy, or ileostomy care.

  3         (d)  Tracheostomy care.

  4         (e)  Tracheal suctioning.

  5         (f)  Respiratory care.

  6         (g)  Foot care.

  7         (h)  Prostheses.

  8         (12)  UNNECESSARY DRUGS.--

  9         (a)  General.--Each resident's drug regimen must be

10  free from unnecessary drugs. An unnecessary drug is any drug

11  used:

12         1.  In excessive dose, including duplicate drug

13  therapy;

14         2.  For excessive duration;

15         3.  Without adequate monitoring;

16         4.  Without adequate indications for its use;

17         5.  In the presence of adverse consequences which

18  indicate the dose should be reduced or discontinued;

19

20  or any combinations of the uses in subparagraphs 1.-5.

21         (b)  Antipsychotic drugs.--Based on a comprehensive

22  assessment of a resident, the facility must ensure that:

23         1.  Residents who have not used antipsychotic drugs are

24  not given these drugs unless antipsychotic drug therapy is

25  necessary to treat a specific condition as diagnosed and

26  documented in the clinical record.

27         2.  Residents who use antipsychotic drugs receive

28  gradual dose reductions, and behavioral interventions, unless

29  clinically contraindicated, in an effort to discontinue these

30  drugs.

31

                                  17

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (13)  MEDICATION ERRORS.--The facility must ensure

  2  that:

  3         (a)  It is free of medication error rates of 5 percent

  4  or greater.

  5         (b)  Residents are free of any significant medication

  6  errors.

  7         (l4)  DEMENTIA; COGNITIVE IMPAIRMENT.--The facility

  8  must ensure that each resident who exhibits any signs of

  9  dementia or cognitive impairment is examined by a licensed

10  physician to rule out the presence of an underlying

11  physiological condition that may be contributing to such

12  signs. The examination must occur within 7 days after

13  admission of the resident to the facility or within 7 days

14  after such signs have first been observed by any facility

15  staff. If an underlying physical condition is determined to

16  exist, it is the facility's responsibility to provide the

17  necessary care and services to treat the condition.

18

19  The facility shall maintain in the medical record for each

20  resident a daily chart of certified nursing assistant services

21  provided to the resident. This record must be completed

22  contemporaneously with the delivery of care, by the certified

23  nursing assistant caring for the resident. This record must

24  indicate assistance with activities of daily living,

25  assistance with eating, and assistance with drinking, and must

26  record each offering of nutrition and hydration for those

27  residents whose plan of care or assessment indicates a risk

28  for malnutrition or dehydration.

29         Section 9.  Section 400.14125, Florida Statutes, is

30  created to read:

31         400.14125  Resident assessment and care plan.--

                                  18

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (1)  Each resident admitted to the nursing home

  2  facility shall have a plan of care. The plan of care shall

  3  consist of:

  4         (a)  Physician's orders, diagnosis, medical history,

  5  physical examination, and rehabilitative or restorative

  6  potential.

  7         (b)  A preliminary nursing evaluation with physician's

  8  orders for immediate care, completed on admission.

  9         (c)  A complete, comprehensive, accurate, and

10  reproducible assessment of each resident's functional capacity

11  which is standardized in the facility and is completed within

12  14 days after the resident's admission to the facility and

13  every 12 months thereafter. The assessment shall be:

14         1.  Reviewed no less than once every 3 months.

15         2.  Reviewed promptly after a significant change in the

16  resident's physical or mental condition.

17         3.  Revised as appropriate to assure the continued

18  accuracy of the assessment.

19         (2)  The assessment process must include direct

20  observation and communication with the resident, as well as

21  communication with licensed and nonlicensed direct care staff

22  members on all shifts. A resident who has not been adjudged

23  incapacitated shall be assisted to participate in the planning

24  of all medical treatment and in the development of the plan of

25  care. The assessment must include, at a minimum:

26         (a)  Identification and demographic information.

27         (b)  Customary routine.

28         (c)  Cognitive patterns.

29         (d)  Communication.

30         (e)  Vision.

31         (f)  Mood and behavior patterns.

                                  19

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (g)  Psychosocial well-being.

  2         (h)  Physical functioning and structural problems.

  3         (i)  Continence.

  4         (j)  Disease diagnoses and health conditions.

  5         (k)  Dental and nutritional status.

  6         (l)  Skin condition.

  7         (m)  Activity pursuit.

  8         (n)  Medications.

  9         (o)  Special treatments and procedures.

10         (p)  Discharge potential.

11         (q)  Documentation of summary information regarding the

12  additional assessment performed through the resident

13  assessment protocols.

14         (r)  Documentation of participation in assessment.

15         (3)  The facility is responsible for developing a

16  comprehensive care plan for each resident that includes

17  measurable objectives and timetables to meet a resident's

18  medical, nursing, mental, and psychosocial needs that are

19  identified in the comprehensive assessment. The care plan must

20  describe the services that are to be furnished to attain or

21  maintain the resident's highest practicable physical, mental,

22  and social well-being. The care plan must be completed within

23  7 days after completion of the initial resident assessment and

24  must be reviewed and signed by the director of nursing, who

25  shall attest to its adequacy and appropriateness.

26         (4)  At the resident's option, every effort shall be

27  made to include the resident and family or responsible party,

28  including private duty nurse or nursing assistant, in the

29  development, implementation, maintenance, and evaluation of

30  the resident plan of care.

31

                                  20

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (5)  All staff personnel who provide care and, at the

  2  resident's option, private duty nurses or nonemployees of the

  3  facility shall be knowledgeable of, and have access to, the

  4  resident's plan of care.

  5         (6)  A summary of the resident's plan of care and a

  6  copy of any advanced directives shall accompany each resident

  7  discharged or transferred to another health care facility

  8  licensed under this part, or shall be forwarded to the

  9  receiving facility as soon as possible consistent with good

10  medical practice.

11         Section 10.  Section 400.1413, Florida Statutes, is

12  created to read:

13         400.1413  Minimum staffing requirements.--

14         (1)  The nursing home facility shall have sufficient

15  nursing staff, on a 24-hour basis, to provide nursing and

16  related services to residents in order to maintain the highest

17  practicable physical, mental, and psychosocial well-being of

18  each resident, as determined by resident assessments and

19  individual plans of care.

20         (a)  Effective July 1, 2001, each facility shall staff,

21  at a minimum, an average of 2.1 hours of certified nursing

22  assistant and 1.0 hours of licensed nursing staff time for

23  each resident during a 24-hour period. These minimum staffing

24  levels shall be increased by 10 percent annually until July 1,

25  2005.

26         (b)  The agency shall be notified in writing, by

27  facsimile machine, within 24 hours, any time staffing levels

28  fall below the minimum requirements provided in this

29  paragraph. The agency shall impose an immediate moratorium on

30  admissions to a facility when the agency determines that

31  staffing levels have fallen below such minimum requirements

                                  21

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  during 10 days, or for 3 consecutive days, within a 30-day

  2  period.

  3         (2)  The administrator of each nursing home shall

  4  designate one full-time registered nurse as a director of

  5  nursing who shall be responsible and accountable for the

  6  supervision and administration of the total nursing services

  7  program. When a director of nursing is delegated institutional

  8  responsibilities, a full-time qualified registered nurse shall

  9  be designated to serve as assistant director of nursing. In a

10  facility with a census of 121 or more residents, a registered

11  nurse must be designated as an assistant director of nursing.

12         (3)  Persons designated as director of nursing or

13  assistant director of nursing shall serve only one nursing

14  home facility in this capacity and shall not serve as the

15  administrator of the nursing home facility.

16         (4)  The director of nursing shall designate one

17  licensed nurse on each shift to be responsible for the

18  delivery of nursing services during that shift.

19         (5)  In multistory, multiwing, or multistation nursing

20  home facilities, there shall be a minimum of one nursing

21  services staff person who is capable of providing direct care

22  on duty at all times on each floor, wing, or station.

23         (6)  No nursing services staff person shall be

24  scheduled for more than 12 hours within a 24-hour period, for

25  3 consecutive days, except in an emergency. Emergencies shall

26  be documented and shall be for a limited, specified period of

27  time.

28         Section 11.  Section 400.1414, Florida Statutes, is

29  created to read:

30         400.1414  Staff education.--

31

                                  22

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (1)  Each nursing home shall develop, implement, and

  2  maintain a written staff education plan that ensures a

  3  coordinated program for staff education for all facility

  4  employees. The staff education plan shall be reviewed at least

  5  annually by the quality assessment and assurance committee and

  6  revised as needed.

  7         (2)  The staff education plan shall include both

  8  preservice and inservice programs.

  9         (3)  The staff education plan shall ensure that

10  education is conducted annually for all facility employees, at

11  a minimum, in the following areas:

12         (a)  Prevention and control of infection.

13         (b)  Fire prevention, life safety, and disaster

14  preparedness.

15         (c)  Accident prevention and safety awareness.

16         (d)  Residents' rights.

17         (e)  Federal requirements for long-term care facilities

18  set forth in 42 C.F.R. 483, 1991, and state laws set forth in

19  this part and the rules adopted pursuant to this part.

20         (f)  Requirements of ss. 442.101-442.127 or successor

21  legislation, relating to toxic substances in the workplace.

22         (4)  The staff education plan shall ensure that all

23  nonlicensed employees of the nursing home complete an initial

24  educational course on HIV/AIDS. An employee who does not have

25  a certificate of course completion at the time of hiring must

26  complete 2 hours of training within 6 months after initial

27  employment and may not provide care for a resident diagnosed

28  with HIV/AIDS until completing such training. All employees

29  shall complete a minimum of 1 hour of continuing education on

30  HIV/AIDS biennially.

31

                                  23

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         Section 12.  Subsection (1) of section 400.1415,

  2  Florida Statutes, is amended to read:

  3         400.1415  Patient records; penalties for alteration.--

  4         (1)  Any person who fraudulently alters, defaces, or

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

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

  7  misdemeanor of the first second degree, punishable as provided

  8  in s. 775.082 or s. 775.083.

  9         Section 13.  Section 400.1416, Florida Statutes, is

10  created to read:

11         400.1416  Facility medical records.--

12         (1)  The facility shall designate a full-time employee

13  to be responsible and accountable for the facility's medical

14  records. If this employee is not a qualified medical record

15  practitioner, the facility shall employ the services of a

16  qualified medical record practitioner on a consultant basis. A

17  qualified medical record practitioner is a person who is

18  eligible for a certification as a registered record

19  administrator or an accredited record technician by the

20  American Health Information Management Association or is a

21  graduate of a School of Medical Record Science that is

22  accredited jointly by the Council on Medical Education of the

23  American Medical Association and the American Health

24  Information Management Association.

25         (2)  Each medical record shall contain sufficient

26  information to clearly identify to the resident his or her

27  diagnosis and treatment, and the results of treatment. Medical

28  records shall be complete, accurate, accessible, and

29  systematically organized.

30         (3)  Medical records shall be retained for a period of

31  5 years from the date of discharge. In the case of a minor,

                                  24

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  the record shall be retained for 3 years after such person

  2  reaches legal age under state law.

  3         Section 14.  Section 400.1417, Florida Statutes, is

  4  created to read:

  5         400.1417  Fiscal records.--

  6         (1)  The licensee, for each nursing home it operates,

  7  shall maintain fiscal records in accordance with the

  8  requirements of this part and the rules adopted pursuant to

  9  this part.

10         (2)  An accrual or cash system of accounting shall be

11  used to reflect transactions of the business. Records and

12  accounts of transactions, such as general ledgers and

13  disbursement journals, shall be brought current no less than

14  quarterly and shall be available for review by the agency and

15  authorized representatives of appropriate federal agencies.

16         Section 15.  Subsection (1) of section 400.19, Florida

17  Statutes, is amended to read:

18         400.19  Right of entry and inspection.--

19         (1)  The agency and any duly designated officer or

20  employee thereof or a member of the State Long-Term Care

21  Ombudsman Council or the local long-term care ombudsman

22  council shall have the right to enter upon and into the

23  premises of any facility licensed pursuant to this part, or

24  any distinct nursing home unit of a hospital licensed under

25  chapter 395 or any freestanding facility licensed under

26  chapter 395 that provides extended care or other long-term

27  care services, at any reasonable time in order to determine

28  the state of compliance with the provisions of this part and

29  rules in force pursuant thereto.  The right of entry and

30  inspection shall also extend to any premises which the agency

31  has reason to believe is being operated or maintained as a

                                  25

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  facility without a license, but no such entry or inspection of

  2  any premises shall be made without the permission of the owner

  3  or person in charge thereof, unless a warrant is first

  4  obtained from the circuit court authorizing same.  Any

  5  application for a facility license or renewal thereof, made

  6  pursuant to this part, shall constitute permission for and

  7  complete acquiescence in any entry or inspection of the

  8  premises for which the license is sought, in order to

  9  facilitate verification of the information submitted on or in

10  connection with the application; to discover, investigate, and

11  determine the existence of abuse or neglect; or to elicit,

12  receive, respond to, and resolve complaints. The agency shall,

13  within 60 days after receipt of a complaint made by a resident

14  or resident's representative, complete its investigation and

15  provide to the complainant its findings and resolution.

16         Section 16.  Section 400.201, Florida Statutes, is

17  created to read:

18         400.201  Physician services.--

19         (1)  Each nursing home facility shall retain, pursuant

20  to a written agreement, a physician licensed under chapter 458

21  or chapter 459, to serve as medical director. In facilities

22  with a licensed capacity of 60 beds or less, pursuant to

23  written agreement, a physician licensed under chapter 458 or

24  chapter 459 may serve as medical consultant in lieu of a

25  medical director.

26         (2)  Each resident or legal representative shall be

27  allowed to select his or her own private physician.

28         (3)  Verbal orders, including telephone orders, shall

29  be immediately recorded, dated, and signed by the person

30  receiving the order. All verbal treatment orders shall be

31

                                  26

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  countersigned by the physician or other health care

  2  professional on the next visit to the facility.

  3         (4)  Physician orders may be transmitted by facsimile

  4  machine. It is not necessary for a physician to re-sign a

  5  facsimile order when he or she visits a facility.

  6         (5)  All physician orders shall be followed as

  7  prescribed, and if not followed, the reason shall be recorded

  8  on the resident's medical record during that shift.

  9         (6)  Each resident shall be seen by a physician, or

10  another licensed health professional acting within his or her

11  scope of practice, at least once every 30 days for the first

12  90 days after admission, and at least once every 60 days

13  thereafter. A physician visit is considered timely if it

14  occurs not later than 10 days after the date the visit was

15  required. If a physician documents that a resident does not

16  need to be seen on this schedule and there is no other

17  requirement for physician's services that must be met due to

18  Title XVIII (Medicare) or Title XIX (Medicaid) of the Social

19  Security Act, the resident's physician may document an

20  alternate visitation schedule.

21         (7)  If the physician chooses to designate another

22  health care professional to fulfill the physician's component

23  of resident care, the physician may do so after the required

24  visit. All responsibilities of a physician, except for the

25  position of medical director, may be carried out by other

26  health care professionals acting within their scope of

27  practice.

28         (8)  Each facility shall have a list of physicians

29  designated to provide emergency services to residents when the

30  resident's attending physician, or designated alternate, is

31  not available.

                                  27

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         Section 17.  Section 400.203, Florida Statutes, is

  2  created to read:

  3         400.203  Dietary services.--

  4         (1)  The administrator shall designate one full-time

  5  employee as a dietary services supervisor. In a facility with

  6  a census of 61 or more residents, the duties of the dietary

  7  services supervisor shall not include food preparation or

  8  service on a regular basis.

  9         (2)  Either the dietary services supervisor shall be a

10  qualified dietitian or the facility shall obtain consultation

11  from a qualified dietitian. A qualified dietitian is a person

12  who:

13         (a)  Is a registered dietitian as defined by the

14  Commission on Dietetic Registration of the American Dietetic

15  Association, and is currently registered with the American

16  Dietetic Association; or

17         (b)  Has a baccalaureate degree with major studies in

18  food and nutrition, dietetics, or food service management, as

19  defined by the Commission on Dietetic Registration of the

20  American Dietetic Association, has 1 year of supervisory

21  experience in the dietetic service of a health care facility,

22  and participates annually in continuing dietetic education.

23         (3)  A dietary services supervisor is a person who:

24         (a)  Is a qualified dietitian as defined in paragraph

25  (2)(a) or paragraph (2)(b);

26         (b)  Has successfully completed an associate degree

27  program which meets the education standard established by the

28  American Dietetic Association;

29         (c)  Has successfully completed a dietetic assistant

30  correspondence or classroom training program, approved by the

31  American Dietetic Association;

                                  28

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (d)  Has successfully completed a course offered by an

  2  accredited college or university that provided 90 or more

  3  hours of correspondence or classroom instruction in food

  4  service supervision and has prior work experience as a dietary

  5  supervisor in a health care institution with consultation from

  6  a qualified dietitian;

  7         (e)  Has training and experience in food service

  8  supervision and management in the military service equivalent

  9  in content to the program in paragraph (b), paragraph (c), or

10  paragraph (d); or

11         (f)  Is a certified dietary manager who has

12  successfully completed the dietary manager's course and is

13  certified through the certifying board for dietary managers

14  and is maintaining certification with continuing clock hours

15  at 45 continuing education credit per 3-year period.

16         (4)  The facility shall provide a wholesome and

17  nourishing diet sufficient to meet generally accepted

18  standards of proper nutrition for its residents and provide

19  such therapeutic diets as may be prescribed by attending

20  physicians. In making rules to implement this subsection, the

21  agency shall be guided by standards recommended by nationally

22  recognized professional groups and associations with knowledge

23  of dietetics.

24         (5)  A 1-week supply of a variety of nonperishable food

25  and supplies that represent a good diet shall be maintained by

26  the facility at all times.

27         Section 18.  Paragraph (f) of subsection (2) and

28  subsection (8) of section 400.23, Florida Statutes, are

29  amended to read:

30         400.23  Rules; evaluation and deficiencies; licensure

31  status; penalties.--

                                  29

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (2)  Pursuant to the intention of the Legislature, the

  2  agency, in consultation with the Department of Health and the

  3  Department of Elderly Affairs, shall adopt and enforce rules

  4  to implement this part, which shall include reasonable and

  5  fair criteria in relation to:

  6         (f)  The care, treatment, and maintenance of residents

  7  and measurement of the quality and adequacy thereof, including

  8  implementation of s. 400.14125 relating to resident assessment

  9  and plan of care based on rules developed under this chapter

10  and the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No.

11  100-203) (December 22, 1987), Title IV (Medicare, Medicaid,

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

13  Reform), as amended.

14         (8)  The agency shall adopt rules to provide that, when

15  the criteria established under subsection (2) are not met,

16  such deficiencies shall be classified according to the nature

17  of the deficiency. The agency shall indicate the

18  classification on the face of the notice of deficiencies as

19  follows:

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

21  determines present an imminent danger to the residents or

22  guests of the nursing home facility or a substantial

23  probability that death or serious physical harm would result

24  therefrom.  The condition or practice constituting a class I

25  violation shall be abated or eliminated immediately, unless a

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

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

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

29  than $10,000 $5,000 and not exceeding $30,000 $25,000 for each

30  and every deficiency. A fine may be levied notwithstanding the

31  correction of the deficiency.

                                  30

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






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

  2  determines have a direct or immediate relationship to the

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

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

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

  6  than $5,000 $1,000 and not exceeding $15,000 $10,000 for each

  7  and every deficiency.  A citation for a class II deficiency

  8  shall specify the time within which the deficiency is required

  9  to be corrected.  If a class II deficiency is corrected within

10  the time specified, no civil penalty shall be imposed, unless

11  it is a repeated offense.

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

13  determines to have an indirect or potential relationship to

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

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

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

17  not less than $1,500 $500 and not exceeding $5,000 $2,500 for

18  each and every deficiency.  A citation for a class III

19  deficiency shall specify the time within which the deficiency

20  is required to be corrected.  If a class III deficiency is

21  corrected within the time specified, no civil penalty shall be

22  imposed, unless it is a repeated offense.

23         Section 19.  Subsection (4) of section 400.241, Florida

24  Statutes, is amended, and subsection (5) is added to said

25  section, to read:

26         400.241  Prohibited acts; penalties for violations.--

27         (4)  Except as otherwise provided in this part, a

28  violation of any provision of this part or of any minimum

29  standard or, rule, or regulation adopted pursuant thereto

30  constitutes a felony of the third misdemeanor of the second

31  degree, punishable as provided in s. 775.082 or s. 775.083.

                                  31

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  Each day of a continuing violation shall be considered a

  2  separate offense.

  3         (5)  The failure of a nursing home to maintain required

  4  minimum staffing levels, as provided in s. 400.1413(1)(a) for:

  5         (a)  Three shifts during a 90-day period constitutes a

  6  misdemeanor of the second degree;

  7         (b)  More than 3 but less than 10 shifts during a

  8  90-day period constitutes a misdemeanor of the first degree;

  9  or

10         (c)  Ten or more shifts during a 90-day period

11  constitutes a felony of the third degree,

12

13  punishable as provided in s. 775.082 or s. 775.083.

14         Section 20.  Section 400.351, Florida Statutes, is

15  created to read:

16         400.351  Nursing home internal risk management

17  program.--

18         (1)  Every nursing home facility shall, as a part of

19  its administrative functions, establish an internal risk

20  management program that includes all of the following

21  components:

22         (a)  The investigation and analysis of the frequency

23  and causes of general categories and specific types of adverse

24  incidents to residents.

25         (b)  The development of appropriate measures to

26  minimize the risk of adverse incidents to residents,

27  including, but not limited to: risk management and risk

28  prevention education and training of all personnel as follows:

29         1.  Such education and training of all personnel as

30  part of their initial orientation; and

31

                                  32

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






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

  2  annually for all personnel of the facility working in clinical

  3  areas or providing resident care.

  4         (c)  The analysis of resident grievances that relate to

  5  resident care or the quality of medical services.

  6         (d)  The development and implementation of an incident

  7  reporting system based upon the affirmative duty of all

  8  nursing home providers and all agents and employees of the

  9  nursing home facility to report adverse incidents to the risk

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

11  after their occurrence.

12         (2)  The internal risk management program is the

13  responsibility of the governing board, if there is a governing

14  board, or, if not, the administrator of the nursing home

15  facility. Each facility shall hire a risk manager, licensed

16  under part IX of chapter 626, who is responsible for

17  implementation and oversight of such facility's internal risk

18  management program as required by this section.  A risk

19  manager must not be made responsible for more than four

20  internal risk management programs in separate licensed

21  facilities, unless the facilities are under one corporate

22  ownership or the risk management programs are in rural nursing

23  homes.

24         (3)  In addition to the programs mandated by this

25  section, other innovative approaches intended to reduce the

26  frequency and severity of medical malpractice and resident

27  injury claims shall be encouraged and their implementation and

28  operation facilitated. Such additional approaches may include

29  extending internal risk management programs to nursing home

30  providers' offices and the assuming of provider liability by a

31  facility for acts or omissions occurring within the facility.

                                  33

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (4)  The agency shall, after consulting with the

  2  Department of Insurance, adopt rules governing the

  3  establishment of internal risk management programs to meet the

  4  needs of individual nursing home facilities.  Each internal

  5  risk management program shall include the use of incident

  6  reports to be filed with an individual of responsibility who

  7  is competent in risk management techniques in the employ of

  8  each facility, such as an insurance coordinator.  The

  9  individual responsible for the risk management program shall

10  have free access to all medical records of the facility.  The

11  incident reports are part of the workpapers of the attorney

12  defending the facility in litigation relating to the facility

13  and are subject to discovery, but are not admissible as

14  evidence in court.  A person filing an incident report is not

15  subject to civil suit by virtue of such incident report.  As a

16  part of each internal risk management program, the incident

17  reports shall be used to develop categories of incidents which

18  identify problem areas.  Once identified, procedures shall be

19  adjusted to correct the problem areas.

20         (5)  For purposes of reporting to the agency pursuant

21  to this section, the term "adverse incident" means an event

22  over which nursing home personnel could exercise control and

23  which is associated in whole or in part with medical

24  intervention, rather than the condition for which such

25  intervention occurred, and which results in one of the

26  following injuries:

27         (a)  Death.

28         (b)  Brain or spinal damage.

29         (c)  Permanent disfigurement.

30         (d)  Fracture or dislocation of bones or joints.

31

                                  34

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (e)  A resulting limitation of neurological, physical,

  2  or sensory function which continues after discharge from the

  3  facility.

  4         (f)  Any condition that required specialized medical

  5  attention or surgical intervention resulting from nonemergency

  6  medical intervention, other than an emergency medical

  7  condition, to which the resident has not given his or her

  8  informed consent.

  9         (g)  Any condition that required the transfer of the

10  resident, within or outside the facility, to a facility

11  providing a more acute level of care due to the adverse

12  incident, rather than the resident's condition prior to the

13  adverse incident.

14         (6)(a)  Each facility subject to this section shall

15  submit an annual report to the agency summarizing the incident

16  reports that have been filed in the facility for that year.

17  The report shall include:

18         1.  The total number of adverse incidents.

19         2.  A listing, by category, of the types of operations,

20  diagnostic treatment procedures, or other actions causing the

21  injuries, and the number of incidents occurring within each

22  category.

23         3.  A listing, by category, of the types of injuries

24  caused and the number of incidents occurring within each

25  category.

26         4.  A code number using the health care professional's

27  licensure number and a separate code number identifying all

28  other individuals directly involved in adverse incidents to

29  residents, the relationship of the individual to the facility,

30  and the number of incidents in which each individual has been

31  directly involved.  Each facility shall maintain names of the

                                  35

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  health care professionals and individuals identified by code

  2  numbers for purposes of this section.

  3         5.  A description of all malpractice claims filed

  4  against the facility, including the total number of pending

  5  and closed claims and the nature of the incident which led to,

  6  the persons involved in, and the status and disposition of

  7  each claim. Each report shall update status and disposition

  8  for all prior reports.

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

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

11  458, chapter 459, chapter 461, chapter 464, or chapter 466

12  shall be reviewed by the agency.  The agency shall determine

13  whether any of the incidents potentially involved conduct by a

14  health care professional who is subject to disciplinary

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

16  apply.

17         (c)  The report submitted to the agency shall also

18  contain the name and license number of the risk manager of the

19  nursing home facility, a copy of its policy and procedures

20  which govern the measures taken by the facility and its risk

21  manager to reduce the risk of injuries and adverse incidents,

22  and the results of such measures.

23         (7)  The facility shall notify the agency no later than

24  1 business day after the risk manager or his or her designee

25  has received a report pursuant to paragraph (1)(d) and can

26  determine within 1 business day that any of the following

27  adverse incidents has occurred, whether occurring in the

28  facility or arising from health care prior to admission in the

29  facility:

30         (a)  The death of a resident.

31         (b)  Brain or spinal damage to a resident.

                                  36

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1

  2  The notification must be made in writing and be provided by

  3  facsimile device or overnight mail delivery. The notification

  4  must include information regarding the identity of the

  5  affected resident, the type of adverse incident, the

  6  initiation of an investigation by the facility, and whether

  7  the events causing or resulting in the adverse incident

  8  represent a potential risk to other residents.

  9         (8)  Any of the following adverse incidents, whether

10  occurring in the facility or arising from health care prior to

11  admission in the facility, shall be reported by the facility

12  to the agency within 15 calendar days after its occurrence:

13         (a)  The death of a resident.

14         (b)  Brain or spinal damage to a resident.

15

16  The agency may grant extensions to this reporting requirement

17  for more than 15 days upon justification submitted in writing

18  by the facility administrator to the agency. The agency may

19  require an additional, final report.

20         (9)  The internal risk manager of each nursing home

21  facility shall:

22         (a)  Investigate every allegation of sexual misconduct

23  made against a member of the facility's personnel who has

24  direct resident contact, when the allegation is that the

25  sexual misconduct occurred at the facility or on the grounds

26  of the facility.

27         (b)  Report every allegation of sexual misconduct to

28  the facility administrator.

29         (c)  Notify the family or guardian of the victim, if a

30  minor, that an allegation of sexual misconduct has been made

31  and that an investigation is being conducted.

                                  37

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (10)  Any witness who witnessed or who possesses actual

  2  knowledge of the act that is the basis of an allegation of

  3  sexual abuse shall:

  4         (a)  Notify the local police; and

  5         (b)  Notify the nursing home risk manager and the

  6  facility administrator.

  7

  8  For purposes of this subsection, "sexual abuse" means acts of

  9  a sexual nature committed for the sexual gratification of

10  anyone upon, or in the presence of, a vulnerable adult,

11  without the vulnerable adult's informed consent, or a minor.

12  "Sexual abuse" includes, but is not limited to, the acts

13  defined in s. 794.011(1)(h), fondling, exposure of a

14  vulnerable adult's or minor's sexual organs, or the use of the

15  vulnerable adult or minor to solicit for or engage in

16  prostitution or sexual performance. "Sexual abuse" does not

17  include any act intended for a valid medical purpose or any

18  act which may reasonably be construed to be a normal

19  caregiving action.

20         (11)  A person who, with malice or with intent to

21  discredit or harm a nursing home facility or any person, makes

22  a false allegation of sexual misconduct against a member of a

23  facility's personnel commits of a misdemeanor of the second

24  degree, punishable as provided in s. 775.082 or s. 775.083.

25         (12)  In addition to any penalty imposed pursuant to

26  this section, the agency shall require a written plan of

27  correction from the facility.  For a single incident or series

28  of isolated incidents that are nonwillful violations of the

29  reporting requirements of this section, the agency shall first

30  seek to obtain corrective action by the facility.  If the

31  correction is not demonstrated within the timeframe

                                  38

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  established by the agency or if there is a pattern of

  2  nonwillful violations of this section, the agency may impose

  3  an administrative fine, not to exceed $5,000 for any violation

  4  of the reporting requirements of this section.  The

  5  administrative fine for repeated nonwillful violations shall

  6  not exceed $10,000 for any violation.  The administrative fine

  7  for each intentional and willful violation may not exceed

  8  $25,000 per violation, per day.  The fine for an intentional

  9  and willful violation of this section may not exceed $250,000.

10         (13)  The agency shall have access to all facility

11  records necessary to carry out the provisions of this section.

12         (14)  The agency shall review, as part of its licensure

13  inspection process, the internal risk management program at

14  each nursing home facility regulated by this section to

15  determine whether the program meets standards established in

16  statutes and rules, whether the program is being conducted in

17  a manner designed to reduce adverse incidents, and whether the

18  program is appropriately reporting incidents under subsections

19  (5), (6), (7), and (8).

20         (15)  There shall be no monetary liability on the part

21  of, and no cause of action for damages shall arise against,

22  any risk manager licensed under part IX of chapter 626 for the

23  implementation and oversight of the internal risk management

24  program in a facility licensed under this part as required by

25  this section, for any act or proceeding undertaken or

26  performed within the scope of the functions of such internal

27  risk management program if the risk manager acts without

28  intentional fraud.

29         (16)  If the agency, through its receipt of the annual

30  reports prescribed in subsection (6) or through any

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

                                  39

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  member or employee of a nursing home facility is grounds for

  2  disciplinary action by the appropriate regulatory board, the

  3  agency shall report this fact to such regulatory board.

  4         (17)  The agency shall annually publish a report

  5  summarizing the information contained in the annual incident

  6  reports submitted by nursing home facilities pursuant to

  7  subsection (6) and disciplinary actions reported to the agency

  8  pursuant to s. 395.0193. The report must, at a minimum,

  9  summarize:

10         (a)  Adverse incidents, by category of reported

11  incident, and by type of professional involved.

12         (b)  Types of claims filed, by type of professional

13  involved.

14         (c)  Disciplinary actions taken against professionals,

15  by type of professional involved.

16         Section 21.  Section 400.353, Florida Statutes, is

17  created to read:

18         400.353  Private utilization review.--

19         (1)  The purpose of this section is to:

20         (a)  Promote the delivery of quality nursing home care

21  in a cost-effective manner.

22         (b)  Foster greater coordination between nursing homes

23  and liability insurers performing utilization review.

24         (c)  Protect residents and insurance providers by

25  ensuring that private review agents are qualified to perform

26  utilization review activities and to make informed decisions

27  on the appropriateness of nursing home care.

28         (d)  This section does not regulate the activities of

29  private review agents, liability insurers, or nursing homes,

30  except as expressly provided herein, or authorize regulation

31

                                  40

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  or intervention as to the correctness of utilization review

  2  decisions of insurers or private review agents.

  3         (2)  A private review agent conducting utilization

  4  review as to nursing home services performed or proposed to be

  5  performed in this state shall register with the agency in

  6  accordance with this section.

  7         (3)  Registration shall be made annually with the

  8  agency on forms furnished by the agency and shall be

  9  accompanied by the appropriate registration fee as set by the

10  agency.  The fee shall be sufficient to pay for the

11  administrative costs of registering the agent, but shall not

12  exceed $250. The agency may also charge reasonable fees,

13  reflecting actual costs, to persons requesting copies of

14  registration.

15         (4)  Each applicant for registration must comply with

16  the following requirements:

17         (a)  Upon receipt of a completed, signed, and dated

18  application, the agency shall require background screening, in

19  accordance with the level 2 standards for screening set forth

20  in chapter 435, of the managing employee or other similarly

21  titled individual who is responsible for the operation of the

22  entity. The applicant must comply with the procedures for

23  level 2 background screening as set forth in chapter 435, as

24  well as the requirements of s. 435.03(3).

25         (b)  The agency may require background screening of any

26  other individual who is an applicant, if the agency has

27  probable cause to believe that he or she has been convicted of

28  a crime or has committed any other offense prohibited under

29  the level 2 standards for screening set forth in chapter 435.

30         (c)  Proof of compliance with the level 2 background

31  screening requirements of chapter 435 which has been submitted

                                  41

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  within the previous 5 years in compliance with any other

  2  health care licensure requirements of this state is acceptable

  3  in fulfillment of the requirements of paragraph (a).

  4         (d)  A provisional registration may be granted to an

  5  applicant when each individual required by this section to

  6  undergo background screening has met the standards for the

  7  Department of Law Enforcement background check, but the agency

  8  has not yet received background screening results from the

  9  Federal Bureau of Investigation, or a request for a

10  disqualification exemption has been submitted to the agency as

11  set forth in chapter 435 but a response has not yet been

12  issued. A standard registration may be granted to the

13  applicant upon the agency's receipt of a report of the results

14  of the Federal Bureau of Investigation background screening

15  for each individual required by this section to undergo

16  background screening which confirms that all standards have

17  been met, or upon the granting of a disqualification exemption

18  by the agency as set forth in chapter 435. Any other person

19  who is required to undergo level 2 background screening may

20  serve in his or her capacity pending the agency's receipt of

21  the report from the Federal Bureau of Investigation. However,

22  the person may not continue to serve if the report indicates

23  any violation of background screening standards and a

24  disqualification exemption has not been requested of and

25  granted by the agency as set forth in chapter 435.

26         (e)  Each applicant must submit to the agency, with its

27  application, a description and explanation of any exclusions,

28  permanent suspensions, or terminations of the applicant from

29  the Medicare or Medicaid programs. Proof of compliance with

30  the requirements for disclosure of ownership and control

31

                                  42

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  interests under the Medicaid or Medicare programs shall be

  2  accepted in lieu of this submission.

  3         (f)  Each applicant must submit to the agency a

  4  description and explanation of any conviction of an offense

  5  prohibited under the level 2 standards of chapter 435 by a

  6  member of the board of directors of the applicant, its

  7  officers, or any individual owning 5 percent or more of the

  8  applicant. This requirement does not apply to a director of a

  9  not-for-profit corporation or organization if the director

10  serves solely in a voluntary capacity for the corporation or

11  organization, does not regularly take part in the day-to-day

12  operational decisions of the corporation or organization,

13  receives no remuneration for his or her services on the

14  corporation or organization's board of directors, and has no

15  financial interest and has no family members with a financial

16  interest in the corporation or organization, provided that the

17  director and the not-for-profit corporation or organization

18  include in the application a statement affirming that the

19  director's relationship to the corporation satisfies the

20  requirements of this paragraph.

21         (g)  A registration may not be granted to an applicant

22  if the applicant or managing employee has been found guilty

23  of, regardless of adjudication, or has entered a plea of nolo

24  contendere or guilty to, any offense prohibited under the

25  level 2 standards for screening set forth in chapter 435,

26  unless an exemption from disqualification has been granted by

27  the agency as set forth in chapter 435.

28         (h)  The agency may deny or revoke the registration if

29  any applicant:

30         1.  Has falsely represented a material fact in the

31  application required by paragraph (e) or paragraph (f), or has

                                  43

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  omitted any material fact from the application required by

  2  paragraph (e) or paragraph (f); or

  3         2.  Has had prior action taken against the applicant

  4  under the Medicaid or Medicare program as set forth in

  5  paragraph (e).

  6         (i)  An application for registration renewal must

  7  contain the information required under paragraphs (e) and (f).

  8         (5)  Registration shall include the following:

  9         (a)  A description of the review policies and

10  procedures to be used in evaluating proposed or delivered

11  nursing home care.

12         (b)  The name, address, and telephone number of the

13  utilization review agent performing utilization review, who

14  shall be at least:

15         1.  A licensed practical nurse or licensed registered

16  nurse, or other similarly qualified medical records or health

17  care professionals, for performing initial review when

18  information is necessary from the physician or nursing home to

19  determine the medical necessity or appropriateness of nursing

20  home services; or

21         2.  A licensed physician, or a licensed physician

22  practicing in the field of psychiatry for review of mental

23  health services, for an initial denial determination prior to

24  a final denial determination by the health insurer and which

25  shall include the written evaluation and findings of the

26  reviewing physician.

27         (c)  A description of an appeal procedure for residents

28  or nursing home care providers whose services are under

29  review, who may appeal an initial denial determination prior

30  to a final determination by the liability insurer with whom

31  the private review agent has contracted.  The appeal procedure

                                  44

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  shall provide for review by a licensed physician, or by a

  2  licensed physician practicing in the field of psychiatry for

  3  review of mental health services, and shall include the

  4  written evaluation and findings of the reviewing physician.

  5         (d)  A designation of the times when the staff of the

  6  utilization review agent will be available by toll-free

  7  telephone, which shall include at least 40 hours per week

  8  during the normal business hours of the agent.

  9         (e)  An acknowledgment and agreement that any private

10  review agent which, as a general business practice, fails to

11  adhere to the policies, procedures, and representations made

12  in its application for registration shall have its

13  registration revoked.

14         (f)  Disclosure of any incentive payment provision or

15  quota provision which is contained in the agent's contract

16  with a liability insurer and is based on reduction or denial

17  of services, reduction of length of stay, or selection of

18  treatment setting.

19         (g)  Updates of any material changes to review policies

20  or procedures.

21         (6)  The agency may impose fines or suspend or revoke

22  the registration of any private review agent in violation of

23  this section.  Any private review agent failing to register or

24  update registration as required by this section shall be

25  deemed to be within the jurisdiction of the agency and subject

26  to an administrative penalty not to exceed $1,000.  The agency

27  may bring actions to enjoin activities of private review

28  agents in violation of this section.

29         (7)  No insurer shall knowingly contract with or

30  utilize a private review agent which has failed to register as

31

                                  45

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  required by this section or which has had a registration

  2  revoked by the agency.

  3         (8)  A private review agent which operates under

  4  contract with the federal or state government for utilization

  5  review of residents eligible for nursing home services under

  6  Title XVIII or Title XIX of the Social Security Act is exempt

  7  from the provisions of this section for services provided

  8  under such contract.  A private review agent which provides

  9  utilization review services to the federal or state government

10  and a private insurer shall not be exempt for services

11  provided to nonfederally funded patients.

12         (9)  Facilities licensed under this part shall promptly

13  comply with the requests of utilization review agents or

14  insurers which are reasonably necessary to facilitate prompt

15  accomplishment of utilization review activities.

16         (10)  The agency shall adopt rules to implement the

17  provisions of this section.

18         Section 22.  Section 400.354, Florida Statutes, is

19  created to read:

20         400.354  Complaint investigation procedures.--

21         (1)  The agency shall investigate any complaint against

22  a nursing home for any violation of this part that the agency

23  reasonably believes to be legally sufficient.  A complaint is

24  legally sufficient if it contains ultimate facts which show

25  that a violation of this part, or any rule adopted under this

26  part by the agency, has occurred.  The agency may investigate,

27  or continue to investigate, and may take appropriate final

28  action on a complaint, even though the original complainant

29  withdraws his or her complaint or otherwise indicates his or

30  her desire not to cause it to be investigated to completion.

31  When an investigation of any person or facility is undertaken,

                                  46

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  the agency shall notify such person in writing of the

  2  investigation and inform the person or facility in writing of

  3  the substance, the facts which show that a violation has

  4  occurred, and the source of any complaint filed against him or

  5  her.  The agency may conduct an investigation without

  6  notification to any person if the act under investigation is a

  7  criminal offense.  The agency shall have access to all records

  8  necessary for the investigation of the complaint.

  9         (2)  The agency or its agent shall expeditiously

10  investigate each complaint against a nursing home for a

11  violation of this part. When its investigation is complete,

12  the agency shall prepare an investigative report. The report

13  shall contain the investigative findings and the

14  recommendations of the agency concerning the existence of

15  probable cause.

16         Section 23.  Section 400.355, Florida Statutes, is

17  created to read:

18         400.355  Purpose.--The Legislature finds that control

19  and prevention of medical accidents and resident injuries in

20  nursing homes is a significant public health and safety

21  concern.  An essential method of controlling such accidents

22  and injuries is a comprehensive program of risk management, as

23  required by s. 400.351.  The key to such a program is a

24  competent and qualified nursing home risk manager.  It is the

25  intent of the Legislature to establish certain minimum

26  standards for nursing home risk managers to ensure the public

27  welfare.

28         Section 24.  Section 400.356, Florida Statutes, is

29  created to read:

30         400.356  Nursing Home Risk Manager Advisory

31  Council.--The Secretary of Health Care Administration may

                                  47

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  appoint a five-member advisory council to advise the agency on

  2  matters pertaining to nursing home risk managers. The members

  3  of the council shall serve at the pleasure of the secretary.

  4  The council shall designate a chair. The council shall meet at

  5  the call of the secretary or at those times as may be required

  6  by rule of the agency.  The members of the advisory council

  7  shall receive no compensation for their services, but shall be

  8  reimbursed for travel expenses as provided in s. 112.061. The

  9  council shall consist of individuals representing the

10  following areas:

11         (1)  Two shall be active nursing home risk managers.

12         (2)  One shall be an active nursing home administrator.

13         (3)  One shall be an employee of an insurer or

14  self-insurer of medical malpractice coverage.

15         (4)  One shall be a representative of consumers of

16  nursing home care.

17         Section 25.  Section 400.357, Florida Statutes, is

18  created to read:

19         400.357  Powers and duties of the agency.--It is the

20  function of the agency to:

21         (1)  Adopt rules pursuant to ss. 120.536(1) and 120.54

22  to implement the provisions of this part conferring duties

23  upon it.

24         (2)  Develop, impose, and enforce specific standards

25  within the scope of the general qualifications established by

26  this part which must be met by individuals in order to receive

27  licenses as nursing home risk managers. These standards shall

28  be designed to ensure that nursing home risk managers are

29  individuals of good character and otherwise suitable and, by

30  training or experience in the field of nursing home risk

31  management, qualified in accordance with the provisions of

                                  48

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  this part to serve as nursing home risk managers, within

  2  statutory requirements.

  3         (3)  Develop a method for determining whether an

  4  individual meets the standards set forth in s. 400.358.

  5         (4)  Issue licenses to qualified individuals meeting

  6  the standards set forth in s. 400.358.

  7         (5)  Receive, investigate, and take appropriate action

  8  with respect to any charge or complaint filed with the agency

  9  to the effect that a certified nursing home risk manager has

10  failed to comply with the requirements or standards adopted by

11  rule by the agency or to comply with the provisions of this

12  part.

13         (6)  Establish procedures for providing periodic

14  reports on persons certified or disciplined by the agency

15  under this part.

16         (7)  Develop a model risk management program for

17  nursing home facilities that will satisfy the requirements of

18  s. 400.351.

19         (8)  Enforce the special-occupancy provisions of the

20  Florida Building Code which apply to nursing homes, in

21  conducting any inspection authorized by this part.

22         Section 26.  Section 400.358, Florida Statutes, is

23  created to read:

24         400.358  Qualifications for nursing home risk

25  managers.--

26         (1)  Any person desiring to be licensed as a nursing

27  home risk manager shall submit an application on a form

28  provided by the agency.  In order to qualify, the applicant

29  shall submit evidence satisfactory to the agency which

30  demonstrates the applicant's competence, by education or

31  experience, in the following areas:

                                  49

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (a)  Applicable standards of nursing home risk

  2  management.

  3         (b)  Applicable federal, state, and local health and

  4  safety laws and rules.

  5         (c)  General risk management administration.

  6         (d)  Resident care.

  7         (e)  Medical care.

  8         (f)  Accident prevention.

  9         (g)  Departmental organization and management.

10         (h)  Community interrelationships.

11         (i)  Medical terminology.

12

13  The agency may require such additional information, from the

14  applicant or any other person, as may be reasonably required

15  to verify the information contained in the application.

16         (2)  The agency shall not grant or issue a license as a

17  nursing home risk manager to any individual unless from the

18  application it affirmatively appears that the applicant:

19         (a)  Is 18 years of age or over;

20         (b)  Is a high school graduate or equivalent; and

21         (c)1.  Has fulfilled the requirements of a 1-year

22  program or its equivalent in nursing home risk management

23  training which may be developed or approved by the agency;

24         2.  Has completed 2 years of college-level studies

25  which would prepare the applicant for nursing home risk

26  management, to be further defined by rule; or

27         3.  Has obtained 1 year of practical experience in

28  nursing home risk management.

29         (3)  The agency shall issue a license to practice

30  nursing home risk management to any applicant who qualifies

31  under this section and submits an application fee of not more

                                  50

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  than $75, a fingerprinting fee of not more than $75, and a

  2  license fee of not more than $100. The agency shall by rule

  3  establish fees and procedures for the issuance and

  4  cancellation of licenses.

  5         (4)  The agency shall renew a nursing home risk manager

  6  license upon receipt of a biennial renewal application and

  7  fees. The agency shall by rule establish a procedure for the

  8  biennial renewal of licenses.

  9         Section 27.  Section 400.359, Florida Statutes, is

10  created to read:

11         400.359  Grounds for denial, suspension, or revocation

12  of a nursing home risk manager's license; administrative

13  fine.--

14         (1)  The agency may, in its discretion, deny, suspend,

15  revoke, or refuse to renew or continue the license of any

16  nursing home risk manager or applicant, if it finds that as to

17  such applicant or licensee any one or more of the following

18  grounds exist:

19         (a)  Any cause for which issuance of the license could

20  have been refused had it then existed and been known to the

21  agency.

22         (b)  Giving false or forged evidence to the agency for

23  the purpose of obtaining a license.

24         (c)  Having been found guilty of, or having pleaded

25  guilty or nolo contendere to, a crime in this state or any

26  other state relating to the practice of risk management or the

27  ability to practice risk management, whether or not a judgment

28  or conviction has been entered.

29         (d)  Having been found guilty of, or having pleaded

30  guilty or nolo contendere to, a felony, or a crime involving

31  moral turpitude punishable by imprisonment of 1 year or more

                                  51

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  under the law of the United States, under the law of any

  2  state, or under the law of any other country, without regard

  3  to whether a judgment of conviction has been entered by the

  4  court having jurisdiction of such cases.

  5         (e)  Making or filing a report or record which the

  6  licensee knows to be false; or intentionally failing to file a

  7  report or record required by state or federal law; or

  8  willfully impeding or obstructing, or inducing another person

  9  to impede or obstruct, the filing of a report or record

10  required by state or federal law. Such reports or records

11  shall include only those which are signed in the capacity of a

12  licensed nursing home risk manager.

13         (f)  Fraud or deceit, negligence, incompetence, or

14  misconduct in the practice of nursing home risk management.

15         (g)  Violation of any provision of this part or any

16  other law applicable to the business of nursing home risk

17  management.

18         (h)  Violation of any lawful order or rule of the

19  agency or failure to comply with a lawful subpoena issued by

20  the department.

21         (i)  Practicing with a revoked or suspended nursing

22  home risk manager license.

23         (j)  Repeatedly acting in a manner inconsistent with

24  the health and safety of the residents of the licensed

25  facility in which the licensee is the nursing home risk

26  manager.

27         (k)  Being unable to practice nursing home risk

28  management with reasonable skill and safety to residents by

29  reason of illness; drunkenness; or use of drugs, narcotics,

30  chemicals, or any other material or substance or as a result

31  of any mental or physical condition.  Any person affected

                                  52

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  under this paragraph shall have the opportunity, at reasonable

  2  intervals, to demonstrate that he or she can resume the

  3  competent practices of nursing home risk manager with

  4  reasonable skill and safety to residents.

  5         (l)  Willfully permitting unauthorized disclosure of

  6  information relating to a resident or a resident's records.

  7         (m)  Discriminating in respect to residents, employees,

  8  or staff on account of race, religion, color, sex, or national

  9  origin.

10         (2)  If the agency finds that one or more of the

11  grounds set forth in subsection (1) exist, it may, in lieu of

12  or in addition to suspension or revocation, enter an order

13  imposing one or more of the following penalties:

14         (a)  Imposition of an administrative fine not to exceed

15  $2,500 for each count or separate offense.

16         (b)  Issuance of a reprimand.

17         (c)  Placement of the licensee on probation for a

18  period of time and subject to such conditions as the agency

19  may specify, including requiring the licensee to attend

20  continuing education courses or to work under the supervision

21  of another licensee.

22         (3)  The agency may reissue the license of a

23  disciplined licensee in accordance with the provisions of this

24  part.

25         Section 28.  Paragraphs (e) and (f) are added to

26  subsection (1) of section 408.040, Florida Statutes, to read:

27         408.040  Conditions and monitoring.--

28         (1)

29         (e)  The agency shall deny a certificate of need for a

30  nursing home or related facility to any person the agency

31  determines has provided materially false or incorrect

                                  53

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  information, or has included an unallowable cost after

  2  previously being advised of the cost unallowability, or has

  3  withheld information required to be provided, in annual cost

  4  reports submitted to the agency.

  5         (f)  The agency shall deny an application for

  6  modification of certificate of need for any nursing home or

  7  related facility for any person who owns or operates two or

  8  more nursing homes or related facilities appearing on the

  9  agency's watchlist for facilities with documented uncorrected

10  deficiencies.

11         Section 29.  Subsections (7) and (9) of section

12  458.331, Florida Statutes, are amended to read:

13         458.331  Grounds for disciplinary action; action by the

14  board and department.--

15         (7)  Upon the department's receipt from the Agency for

16  Health Care Administration pursuant to s. 395.0197 or s.

17  400.351 of the name of a physician whose conduct may

18  constitute grounds for disciplinary action by the department,

19  the department shall investigate the occurrences upon which

20  the report was based and determine if action by the department

21  against the physician is warranted.

22         (9)  When an investigation of a physician is

23  undertaken, the department shall promptly furnish to the

24  physician or the physician's attorney a copy of the complaint

25  or document which resulted in the initiation of the

26  investigation.  For purposes of this subsection, such

27  documents include, but are not limited to:  the pertinent

28  portions of an annual report submitted to the department

29  pursuant to s. 395.0197(6) or s. 400.351(6); a report of an

30  adverse incident which is provided to the department pursuant

31  to s. 395.0197(8) or s. 400.351(8); a report of peer review

                                  54

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  disciplinary action submitted to the department pursuant to s.

  2  395.0193(4) or s. 458.337, providing that the investigations,

  3  proceedings, and records relating to such peer review

  4  disciplinary action shall continue to retain their privileged

  5  status even as to the licensee who is the subject of the

  6  investigation, as provided by ss. 395.0193(8) and 458.337(3);

  7  a report of a closed claim submitted pursuant to s. 627.912; a

  8  presuit notice submitted pursuant to s. 766.106(2); and a

  9  petition brought under the Florida Birth-Related Neurological

10  Injury Compensation Plan, pursuant to s. 766.305(2).  The

11  physician may submit a written response to the information

12  contained in the complaint or document which resulted in the

13  initiation of the investigation within 45 days after service

14  to the physician of the complaint or document. The physician's

15  written response shall be considered by the probable cause

16  panel.

17         Section 30.  Subsections (7) and (9) of section

18  459.015, Florida Statutes, are amended to read:

19         459.015  Grounds for disciplinary action; action by the

20  board and department.--

21         (7)  Upon the department's receipt from the Agency for

22  Health Care Administration pursuant to s. 395.0197 or s.

23  400.351 of the name of an osteopathic physician whose conduct

24  may constitute grounds for disciplinary action by the

25  department, the department shall investigate the occurrences

26  upon which the report was based and determine if action by the

27  department against the osteopathic physician is warranted.

28         (9)  When an investigation of an osteopathic physician

29  is undertaken, the department shall promptly furnish to the

30  osteopathic physician or his or her attorney a copy of the

31  complaint or document which resulted in the initiation of the

                                  55

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  investigation. For purposes of this subsection, such documents

  2  include, but are not limited to:  the pertinent portions of an

  3  annual report submitted to the department pursuant to s.

  4  395.0197(6) or s. 400.351(6); a report of an adverse incident

  5  which is provided to the department pursuant to s. 395.0197(8)

  6  or s. 400.351(8); a report of peer review disciplinary action

  7  submitted to the department pursuant to s. 395.0193(4) or s.

  8  459.016, provided that the investigations, proceedings, and

  9  records relating to such peer review disciplinary action shall

10  continue to retain their privileged status even as to the

11  licensee who is the subject of the investigation, as provided

12  by ss. 395.0193(8) and 459.016(3); a report of a closed claim

13  submitted pursuant to s. 627.912; a presuit notice submitted

14  pursuant to s. 766.106(2); and a petition brought under the

15  Florida Birth-Related Neurological Injury Compensation Plan,

16  pursuant to s. 766.305(2).  The osteopathic physician may

17  submit a written response to the information contained in the

18  complaint or document which resulted in the initiation of the

19  investigation within 45 days after service to the osteopathic

20  physician of the complaint or document. The osteopathic

21  physician's written response shall be considered by the

22  probable cause panel.

23         Section 31.  Subsection (1) of section 400.063, Florida

24  Statutes, is amended to read:

25         400.063  Resident Protection Trust Fund.--

26         (1)  A Resident Protection Trust Fund shall be

27  established for the purpose of collecting and disbursing funds

28  generated from the license fees and administrative fines as

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

30  400.121(2), and 400.23(8).  Such funds shall be for the sole

31  purpose of paying for the appropriate alternate placement,

                                  56

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  care, and treatment of residents who are removed from a

  2  facility licensed under this part or a facility specified in

  3  s. 393.0678(1) in which the agency determines that existing

  4  conditions or practices constitute an immediate danger to the

  5  health, safety, or security of the residents.  If the agency

  6  determines that it is in the best interest of the health,

  7  safety, or security of the residents to provide for an orderly

  8  removal of the residents from the facility, the agency may

  9  utilize such funds to maintain and care for the residents in

10  the facility pending removal and alternative placement.  The

11  maintenance and care of the residents shall be under the

12  direction and control of a receiver appointed pursuant to s.

13  393.0678(1) or s. 400.126(1).  However, funds may be expended

14  in an emergency upon a filing of a petition for a receiver,

15  upon the declaration of a state of local emergency pursuant to

16  s. 252.38(3)(a)5., or upon a duly authorized local order of

17  evacuation of a facility by emergency personnel to protect the

18  health and safety of the residents.

19         Section 32.  (1)  A nursing home or assisted living

20  facility must not take any retaliatory action against any

21  person because the person:

22         (a)  Discloses or threatens to disclose an activity,

23  policy, procedure, action, or failure to act on the part of

24  the employer or another employer with whom there is a business

25  relationship which the employee reasonably believes is in

26  violation of a federal, state, or local law, rule, ordinance,

27  declaratory ruling, standard, professional or ethical code,

28  contract provision, or subscriber or membership agreement, or

29  is incompatible with a clear mandate of public policy.

30         (b)  Provides information to or testifies before any

31  public body conducting an investigation, hearing, or inquiry

                                  57

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  into any alleged violation of a federal, state, or local law,

  2  rule, regulation, ordinance, declaratory ruling, standard,

  3  professional or ethical code, contract provision, or

  4  subscriber or membership agreement, or into any alleged

  5  incompatibility with a clear mandate of public policy.

  6         (c)  Objects to or refuses to participate in any

  7  activity, policy, or practice that the employee reasonably

  8  believes:

  9         1.  Is in violation of a federal, state, or local law,

10  rule, regulation, ordinance, declaratory ruling, standard,

11  professional or ethical code, contract provision, or

12  subscriber or membership agreement, or is incompatible with a

13  clear mandate of public policy; or

14         2.  Is fraudulent or criminal.

15         (2)  Upon a violation of any of the provisions of this

16  section, an aggrieved person may, within 3 years, institute a

17  civil action in a court of competent jurisdiction. Upon the

18  application of any party, a jury trial shall be directed to

19  try the validity of any claim under this section as specified

20  in the suit. All remedies available in common law tort actions

21  are available to prevailing plaintiffs. These remedies are in

22  addition to any legal or equitable relief provided by law.

23  Interest on any damages awarded must be awarded at the

24  prevailing rate. The court may also order:

25         (a)  A temporary, preliminary, or permanent injunction

26  to restrain continued violation of this section;

27         (b)  The reinstatement of the employee to the same

28  position held before the retaliatory action or to an

29  equivalent position;

30         (c)  The reinstatement of full fringe benefits and

31  seniority rights;

                                  58

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         (d)  Compensatory damages, including compensation for

  2  lost wages, benefits, and other remuneration;

  3         (e)  The payment by the employer of reasonable costs,

  4  including expert witness fees and attorney's fees;

  5         (f)  Punitive damages; or

  6         (g)  An assessment of a civil fine of not more than

  7  $1,000 for the first violation of this section and not more

  8  than $5,000 for each subsequent violation, which must be paid

  9  to the State Treasurer for deposit into the General Revenue

10  Fund.

11         (3)  Nursing homes and assisted living facilities shall

12  post and keep posted, in conspicuous places on their premises

13  where notices to employees and applicants for employment are

14  customarily posted, a notice to be prepared or approved by the

15  Secretary of Labor and Employment Security setting forth

16  excerpts from or summaries of the pertinent provisions of this

17  section and information pertaining to the filing of a charge

18  under this section.

19         (4)  As used in this section, the term:

20         (a)  "Person" includes any employee, former employee,

21  consumer, provider, independent contractor, job applicant or

22  bidder, individual, partnership, association, corporation,

23  public body, or group of persons.

24         (b)  "Public body" means:

25         1.  The United States Congress, the State Legislature,

26  or any elected local governmental body, or any member or

27  employee thereof;

28         2.  Any federal, state, or local judiciary, or any

29  member or employee thereof, or any grand or petit jury;

30

31

                                  59

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         3.  Any federal, state, or local regulatory,

  2  administrative, or public agency or authority, or

  3  instrumentality thereof;

  4         4.  Any federal, state, or local law enforcement

  5  agency, prosecutorial office, or police or peace officer;

  6         5.  Any federal, state, or local department of an

  7  executive branch of government; or

  8         6.  Any division, board, bureau, office, committee, or

  9  commission of any of the public bodies described in this

10  paragraph.

11         (c)  "Retaliatory action" means the discharge,

12  suspension, or demotion or other adverse change in the

13  person's wages, benefits, or terms or conditions of

14  employment. The term includes actions, failures to act,

15  threats, intimidations, and the cancellation of or refusal to

16  renew a contract.

17         Section 33.  The Agency for Health Care Administration,

18  in cooperation with the nursing home industry, shall report to

19  the Legislature, on a quarterly basis, information regarding

20  the imposition of violations and penalties, and the

21  assessments and collection of fees, fines, cost reports, and

22  other documents as required by the agency in its regulation of

23  nursing homes and related facilities. The agency shall submit

24  a preliminary report, due by December 1, 2001, and a final

25  report, due by February 1, 2002, on the implementation of this

26  section. The reports shall include verification from each

27  nursing home that the funds appropriated for the purpose of

28  meeting the increased minimum staffing requirements specified

29  in s. 400.1413(1)(a), Florida Statutes, by recruiting and

30  retaining qualified certified nursing assistants and licensed

31

                                  60

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1  nurses have been appropriately allocated as required by the

  2  Legislature.

  3         Section 34.  The Agency for Health Care Administration

  4  shall earmark a portion of each nursing home facility's

  5  Medicaid rate to be used exclusively for wage and benefit

  6  increases for nursing home staff. Such earmarked funds shall

  7  not be less than $1 per hour for each eligible staff member,

  8  and may be used only for actual wage increases or benefit

  9  improvements. Eligible staff members shall include all direct

10  care workers, including registered nurses, licensed practical

11  nurses, and certified nursing assistants, and all dietary,

12  housekeeping, laundry, and maintenance workers. Temporary,

13  contract, agency, and pool employees are excluded. The agency

14  shall develop cost reporting systems to ensure that the

15  earmarked funds are used exclusively for the designated

16  purposes.

17         Section 35.  The Auditor General shall develop a

18  standard chart of accounts to govern the content and manner of

19  presentation of financial information to be submitted by

20  Medicaid long-term care providers in their cost reports. The

21  Auditor General shall submit the standard chart of accounts to

22  the Agency for Health Care Administration not later than

23  December 31, 2001. The agency shall amend the Florida Title

24  XIX Long-Term Care Reimbursement Plan to incorporate this

25  standard chart of accounts and shall implement use of this

26  standard chart of accounts effective January 1, 2002. The

27  standard chart of accounts shall include specific accounts for

28  each component of direct care staff by type of personnel and

29  may not be revised without the written consent of the Auditor

30  General.

31

                                  61

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1         Section 36.  Section 400.118, Florida Statutes, is

  2  repealed.

  3         Section 37.  There is hereby appropriated the sum of

  4  $44 million from the General Revenue Fund and the sum of $56

  5  million from the Medical Care Trust Fund, to the Agency for

  6  Health Care Administration, to assist in the implementation of

  7  the increased nursing home minimum staff requirements

  8  specified in s. 400.1413(1)(a), Florida Statutes, by funding

  9  nursing home recruitment and retention of qualified certified

10  nursing assistants and licensed nurses.

11         Section 38.  This act shall take effect July 1, 2001.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

                                  62

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 2001                HB 1581

    115-202A-01






  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Requires a plan for quality assurance and internal risk
  4    management as a condition for nursing home licensure.
      Requires nursing homes to maintain quality assessment and
  5    assurance committees and provides duties. Increases
      various penalties applicable to nursing homes, provides
  6    additional grounds for a moratorium or other actions by
      the Agency for Health Care Administration, and reduces
  7    timeframes for suspension and revocation hearings.
      Provides for placing in receivership a facility that
  8    fails to maintain minimum staffing levels. Specifies
      requirements for physical environment, quality of care,
  9    resident assessments and plans of care, minimum staffing
      requirements and staff supervision, staff education,
10    maintenance of medical and physical records, physician
      services, and dietary services. Establishes a nursing
11    home internal risk management program, provides powers
      and duties of the agency, and requires employment of
12    internal risk managers. Provides requirements and
      penalties. Provides for private utilization review of
13    nursing homes. Provides for a Nursing Home Risk
      Management Council. Provides additional grounds for
14    denial of a nursing home or related facility certificate
      of need. Prohibits a nursing home or assisted living
15    facility from taking retaliatory action against a person
      who discloses unlawful acts of the entity or its
16    employees. Requires reports to the Legislature on
      regulation of nursing homes and related facilities.
17    Provides for use of certain funds for wage and benefit
      increases for nursing home staff. Requires the Auditor
18    General to develop, and the agency to implement, a chart
      of accounts for Medicaid long-term care provider cost
19    reports. Repeals provisions relating to the nursing home
      quality assurance early warning system and rapid response
20    teams. Provides an appropriation. See bill for details.

21

22

23

24

25

26

27

28

29

30

31

                                  63

CODING: Words stricken are deletions; words underlined are additions.