House Bill hb1641
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Florida House of Representatives - 2001 HB 1641
By Representative Bennett
1 A bill to be entitled
2 An act relating to long-term care; amending s.
3 400.0073, F.S.; clarifying duties of the local
4 ombudsman councils with respect to inspections
5 of nursing homes and long-term care facilities;
6 amending s. 400.021, F.S.; defining the terms
7 "controlling interest" and "voluntary board
8 member" and revising the definition of
9 "resident care plan" for purposes of part II of
10 ch. 400, F.S., relating to the regulation of
11 nursing homes; creating s. 400.0223, F.S.;
12 requiring a nursing home facility to permit
13 electronic monitoring devices in a resident's
14 room; specifying conditions under which
15 monitoring may occur; providing that electronic
16 monitoring tapes are admissible in civil or
17 criminal actions; providing penalties; creating
18 s. 400.0247, F.S.; requiring that copies of
19 certain documents be forwarded to the state
20 attorney if punitive damages are awarded;
21 amending s. 400.0255, F.S.; providing for
22 applicability of provisions relating to
23 transfer or discharge of nursing home
24 residents; amending s. 400.062, F.S.;
25 increasing the bed license fee for nursing home
26 facilities; amending s. 400.071, F.S.; revising
27 license application requirements; requiring
28 certain disclosures; authorizing the Agency for
29 Health Care Administration to issue an inactive
30 license; requiring quality assurance and risk
31 management plans; amending s. 400.111, F.S.;
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1 prohibiting renewal of a license if an
2 applicant has failed to pay certain fines;
3 amending s. 400.118, F.S.; revising duties of
4 quality-of-care monitors in nursing facilities;
5 amending s. 400.121, F.S.; specifying
6 additional circumstances under which the agency
7 may deny, revoke, or suspend a facility's
8 license or impose a fine; specifying facts and
9 conditions upon which administrative actions
10 that are challenged must be reviewed; amending
11 s. 400.141, F.S.; providing additional
12 administrative and management requirements for
13 licensed nursing home facilities; requiring a
14 facility to submit information on
15 staff-to-resident ratios, staff turnover, and
16 staff stability; requiring that certain
17 residents be examined by a licensed physician;
18 providing requirements for dining and
19 hospitality attendants; requiring additional
20 reports to the agency; creating s. 400.147,
21 F.S.; requiring each licensed nursing home
22 facility to establish an internal risk
23 management and quality assurance program;
24 providing requirements of the program;
25 requiring the use of incident reports; defining
26 the term "adverse incident"; requiring that the
27 agency be notified of adverse incidents;
28 requiring reporting of liability claims;
29 specifying duties of the internal risk manager;
30 requiring the reporting of sexual abuse;
31 requiring that the Agency for Health Care
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1 Administration review a facility's internal
2 risk management and quality assurance program;
3 limiting the liability of a risk manager;
4 requiring that the agency report certain
5 conduct to the appropriate regulatory board;
6 requiring that the agency annually report to
7 the Legislature on the internal risk management
8 of nursing homes; creating s. 400.1755, F.S.;
9 prescribing training standards for employees of
10 nursing homes that provide care for persons
11 with Alzheimer's disease or related disorders;
12 prescribing duties of the Department of Elderly
13 Affairs; amending s. 400.191, F.S.; requiring
14 the agency to publish a Nursing Home Guide
15 Watch List; specifying contents of the watch
16 list; specifying distribution of the watch
17 list; requiring that nursing homes post certain
18 additional information; amending s. 400.211,
19 F.S.; revising employment requirements for
20 nursing assistants; requiring in service
21 training; amending s. 400.23, F.S.; revising
22 minimum staffing requirements for nursing
23 homes; requiring the documentation and posting
24 of compliance with such standards; increasing
25 the fines imposed for certain deficiencies;
26 amending s. 400.235, F.S.; revising
27 requirements for the Gold Seal Program;
28 creating s. 400.237, F.S.; providing
29 legislative intent regarding improvements in
30 quality in nursing home facilities; requiring
31 the Agency for Health Care Administration to
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1 develop and implement a system for grading
2 nursing homes; specifying areas that must be
3 evaluated by the grading system; requiring
4 ranking of nursing homes according to their
5 grading score; requiring the agency to identify
6 improvement in nursing home performance;
7 requiring the agency to reevaluate standards
8 periodically and raise the standards to reflect
9 improvements in nursing home grading scores;
10 requiring the agency to convene a workgroup;
11 specifying the membership of the workgroup;
12 requiring nursing homes to post their rankings
13 and improvement ratings; requiring the agency
14 to publish the rankings and improvement
15 ratings; authorizing the agency to adopt rules;
16 creating s. 400.275, F.S.; providing for
17 training of nursing home survey teams;
18 providing requirements for participants in the
19 agency's informal dispute resolution process;
20 amending s. 400.402, F.S.; revising definitions
21 applicable to part III of ch. 400, F.S.,
22 relating to the regulation of assisted living
23 facilities; amending s. 400.407, F.S.; revising
24 certain licensing requirements; providing a bed
25 fee for licensed facilities in lieu of the
26 biennial license fee; amending s. 400.414,
27 F.S.; specifying additional circumstances under
28 which the Agency for Health Care Administration
29 may deny, revoke, or suspend a license;
30 providing for issuance of a temporary license;
31 amending s. 400.417, F.S.; revising
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1 requirements for license renewal; amending s.
2 400.419, F.S.; increasing the fines imposed for
3 certain violations; creating s. 400.423, F.S.;
4 requiring certain assisted living facilities to
5 establish an internal risk management and
6 quality assurance program; providing
7 requirements of the program; requiring the use
8 of incident reports; defining the term "adverse
9 incident"; requiring that the agency be
10 notified of adverse incidents; requiring
11 reporting of liability claims; specifying
12 duties of the internal risk manager; requiring
13 the reporting of sexual abuse; requiring that
14 the Agency for Health Care Administration
15 review a facility's internal risk management
16 and quality assurance program; limiting the
17 liability of a risk manager; requiring that the
18 agency report certain conduct to the
19 appropriate regulatory board; requiring that
20 the agency annually report to the Legislature
21 on the internal risk management of assisted
22 living facilities; amending s. 400.426, F.S.;
23 requiring that certain residents be examined by
24 a licensed physician; amending s. 400.428,
25 F.S.; revising requirements for the survey
26 conducted of licensed facilities by the agency;
27 creating s. 400.4303, F.S.; requiring that
28 copies of certain documents be forwarded to the
29 state attorney if punitive damages are awarded;
30 amending s. 400.435, F.S., relating to
31 maintenance of records; conforming provisions
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1 to changes made by the act; amending s.
2 400.441, F.S.; clarifying facility inspection
3 requirements; amending s. 400.442, F.S.,
4 relating to pharmacy and dietary services;
5 conforming provisions to changes made by the
6 act; creating s. 400.449, F.S.; prohibiting the
7 alteration or falsification of medical or other
8 records of an assisted living facility;
9 providing penalties; amending s. 464.201, F.S.;
10 authorizing an additional training program for
11 certified nursing assistants; amending s.
12 464.203, F.S.; revising certification
13 requirements for nursing assistants;
14 authorizing employment of certain nursing
15 assistants pending certification; requiring
16 continuing education; amending s. 397.405,
17 F.S., relating to service providers; conforming
18 provisions to changes made by the act;
19 requiring wage and benefit increases; requiring
20 a report; providing appropriations; providing
21 for severability; providing effective dates.
22
23 Be It Enacted by the Legislature of the State of Florida:
24
25 Section 1. Subsection (4) of section 400.0073, Florida
26 Statutes, is amended to read:
27 400.0073 State and local ombudsman council
28 investigations.--
29 (4) In addition to any specific investigation made
30 pursuant to a complaint, the local ombudsman council shall
31 conduct, at least annually, an investigation, which shall
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1 consist, in part, of an onsite administrative inspection, of
2 each nursing home or long-term care facility within its
3 jurisdiction. This inspection shall focus on the rights,
4 health, safety, and welfare of the residents.
5 Section 2. Section 400.021, Florida Statutes, is
6 amended to read:
7 400.021 Definitions.--When used in this part, unless
8 the context otherwise requires, the term:
9 (1) "Administrator" means the licensed individual who
10 has the general administrative charge of a facility.
11 (2) "Agency" means the Agency for Health Care
12 Administration, which is the licensing agency under this part.
13 (3) "Bed reservation policy" means the number of
14 consecutive days and the number of days per year that a
15 resident may leave the nursing home facility for overnight
16 therapeutic visits with family or friends or for
17 hospitalization for an acute condition before the licensee may
18 discharge the resident due to his or her absence from the
19 facility.
20 (4) "Board" means the Board of Nursing Home
21 Administrators.
22 (5) "Controlling interest" means:
23 (a) The applicant for licensure or a licensee;
24 (b) A person or entity that serves as an officer of,
25 is on the board of directors of, or has a 5 percent or greater
26 ownership interest in the management company or other entity,
27 related or unrelated, which the applicant or licensee may
28 contract with to operate the facility; or
29 (c) A person or entity that serves as an officer of,
30 is on the board of directors of, or has a 5 percent or greater
31 ownership interest in the applicant or licensee.
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1
2 The term does not include a voluntary board member.
3 (6)(5) "Custodial service" means care for a person
4 which entails observation of diet and sleeping habits and
5 maintenance of a watchfulness over the general health, safety,
6 and well-being of the aged or infirm.
7 (7)(6) "Department" means the Department of Children
8 and Family Services.
9 (8)(7) "Facility" means any institution, building,
10 residence, private home, or other place, whether operated for
11 profit or not, including a place operated by a county or
12 municipality, which undertakes through its ownership or
13 management to provide for a period exceeding 24-hour nursing
14 care, personal care, or custodial care for three or more
15 persons not related to the owner or manager by blood or
16 marriage, who by reason of illness, physical infirmity, or
17 advanced age require such services, but does not include any
18 place providing care and treatment primarily for the acutely
19 ill. A facility offering services for fewer than three persons
20 is within the meaning of this definition if it holds itself
21 out to the public to be an establishment which regularly
22 provides such services.
23 (9)(8) "Geriatric outpatient clinic" means a site for
24 providing outpatient health care to persons 60 years of age or
25 older, which is staffed by a registered nurse or a physician
26 assistant.
27 (10)(9) "Geriatric patient" means any patient who is
28 60 years of age or older.
29 (11)(10) "Local ombudsman council" means a local
30 long-term care ombudsman council established pursuant to s.
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1 400.0069, located within the Older Americans Act planning and
2 service areas.
3 (12)(11) "Nursing home bed" means an accommodation
4 which is ready for immediate occupancy, or is capable of being
5 made ready for occupancy within 48 hours, excluding provision
6 of staffing; and which conforms to minimum space requirements,
7 including the availability of appropriate equipment and
8 furnishings within the 48 hours, as specified by rule of the
9 agency, for the provision of services specified in this part
10 to a single resident.
11 (13)(12) "Nursing home facility" means any facility
12 which provides nursing services as defined in part I of
13 chapter 464 and which is licensed according to this part.
14 (14)(13) "Nursing service" means such services or acts
15 as may be rendered, directly or indirectly, to and in behalf
16 of a person by individuals as defined in s. 464.003.
17 (15)(14) "Planning and service area" means the
18 geographic area in which the Older Americans Act programs are
19 administered and services are delivered by the Department of
20 Elderly Affairs.
21 (16)(15) "Respite care" means admission to a nursing
22 home for the purpose of providing a short period of rest or
23 relief or emergency alternative care for the primary caregiver
24 of an individual receiving care at home who, without
25 home-based care, would otherwise require institutional care.
26 (17)(16) "Resident care plan" means a written plan
27 developed, maintained, and reviewed not less than quarterly by
28 a registered nurse, with participation from other facility
29 staff and the resident or his or her designee or legal
30 representative, which includes a comprehensive assessment of
31 the needs of an individual resident, the type and frequency of
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1 services required to provide the necessary care for the
2 resident to attain or maintain the highest practicable
3 physical, mental, and psychosocial well-being, a listing of
4 services provided within or outside the facility to meet those
5 needs, and an explanation of service goals. The resident care
6 plan must be signed by the director of nursing and by the
7 resident, the resident's designee, or the resident's legal
8 representative.
9 (18)(17) "Resident designee" means a person, other
10 than the owner, administrator, or employee of the facility,
11 designated in writing by a resident or a resident's guardian,
12 if the resident is adjudicated incompetent, to be the
13 resident's representative for a specific, limited purpose.
14 (19)(18) "State ombudsman council" means the State
15 Long-Term Care Ombudsman Council established pursuant to s.
16 400.0067.
17 (20) "Voluntary board member" means a director of a
18 not-for-profit corporation or organization who serves solely
19 in a voluntary capacity for the corporation or organization,
20 does not receive any remuneration for his or her services on
21 the board of directors, and has no financial interest in the
22 corporation or organization. The agency shall recognize a
23 person as a voluntary board member following submission of a
24 statement to the agency by the director and the not-for-profit
25 corporation or organization which affirms that the director
26 conforms to this definition. The statement affirming the
27 status of the director must be submitted to the agency on a
28 form provided by the agency.
29 Section 3. Section 400.0223, Florida Statutes, is
30 created to read:
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1 400.0223 Resident's right to have electronic
2 monitoring devices in room; requirements, penalties.--
3 (1) A nursing home facility shall permit a resident or
4 legal representative of the resident to monitor the resident
5 through the use of electronic monitoring devices. For the
6 purposes of this section the term "electronic monitoring
7 device" includes a video surveillance camera, an audio device,
8 a video telephone, and an internet video surveillance device.
9 (2) A nursing home facility shall require a resident
10 who engages in electronic monitoring to post a notice on the
11 door of the resident's room. The notice must state that the
12 room is being monitored by an electronic monitoring device.
13 (3) Monitoring conducted under this section must:
14 (a) Be noncompulsory and at the election of the
15 resident or legal representative of the resident;
16 (b) Be funded by the resident or legal representative
17 of the resident; and
18 (c) Protect the privacy rights of other residents and
19 visitors to the nursing home facility to the extent reasonably
20 possible.
21 (4) A nursing home facility may not refuse to admit an
22 individual to residency in the facility or remove a resident
23 from the facility because of a request for electronic
24 monitoring.
25 (5) A nursing home facility shall make reasonable
26 physical accommodation for electronic monitoring, by
27 providing:
28 (a) A reasonably secure place to mount the electronic
29 monitoring device; and
30 (b) Access to power sources.
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1 (6) A nursing home facility shall inform a resident or
2 the legal representative of the resident of the resident's
3 right to electronic monitoring.
4 (7) A nursing home facility may request a resident or
5 a resident's personal representative to conduct electronic
6 monitoring within plain view.
7 (8) A resident who wishes to install an electronic
8 monitoring device may be required by the administrator of the
9 nursing home facility to make the request in writing.
10 (9) Subject to the Florida Rules of Evidence, a tape
11 created through the use of electronic monitoring is admissible
12 in either a civil or criminal action brought in a Florida
13 court.
14 (10)(a) A licensee who operates a nursing home
15 facility in violation of this section is subject to a fine not
16 exceeding $500 per violation per day under ss. 400.102 and
17 400.121.
18 (b) A person who willfully and without the consent of
19 the resident hampers, obstructs, tampers with, or destroys an
20 electronic monitoring device or tape shall be guilty of a
21 misdemeanor of the first degree punishable as provided in s.
22 775.082 or s. 775.083.
23 Section 4. Effective October 1, 2001, and applicable
24 to causes of action accruing on or after that date, section
25 400.0247, Florida Statutes, is created to read:
26 400.0247 Copies forwarded to state attorney.--In any
27 action in which punitive damages are awarded, notwithstanding
28 any appeals, the clerk of the court shall forward to the state
29 attorney of that circuit a copy of the complaint, any amended
30 complaints, the verdict form, and the final judgment.
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1 Section 5. Subsection (17) is added to section
2 400.0255, Florida Statutes, to read:
3 400.0255 Resident transfer or discharge; requirements
4 and procedures; hearings.--
5 (17) The provisions of this section apply to transfers
6 or discharges that are initiated by the nursing home facility,
7 and not by the resident or by the resident's physician or
8 legal guardian or representative.
9 Section 6. Subsection (3) of section 400.062, Florida
10 Statutes, is amended to read:
11 400.062 License required; fee; disposition; display;
12 transfer.--
13 (3) The annual license fee required for each license
14 issued under this part shall be comprised of two parts. Part
15 I of the license fee shall be the basic license fee. The rate
16 per bed for the basic license fee shall be established
17 annually and must be reasonably calculated to cover the cost
18 of regulation under this part, but may not exceed $50 $35 per
19 bed. Part II of the license fee shall be the resident
20 protection fee, which shall be at the rate of not less than 25
21 cents per bed. The rate per bed shall be the minimum rate per
22 bed, and such rate shall remain in effect until the effective
23 date of a rate per bed adopted by rule by the agency pursuant
24 to this part. At such time as the amount on deposit in the
25 Resident Protection Trust Fund is less than $500,000, the
26 agency may adopt rules to establish a rate which may not
27 exceed $10 per bed. The rate per bed shall revert back to the
28 minimum rate per bed when the amount on deposit in the
29 Resident Protection Trust Fund reaches $500,000, except that
30 any rate established by rule shall remain in effect until such
31 time as the rate has been equally required for each license
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1 issued under this part. Any amount in the fund in excess of
2 $800,000 shall revert to the Health Care Trust Fund and may
3 not be expended without prior approval of the Legislature.
4 The agency may prorate the annual license fee for those
5 licenses which it issues under this part for less than 1 year.
6 Funds generated by license fees collected in accordance with
7 this section shall be deposited in the following manner:
8 (a) The basic license fee collected shall be deposited
9 in the Health Care Trust Fund, established for the sole
10 purpose of carrying out this part. When the balance of the
11 account established in the Health Care Trust Fund for the
12 deposit of fees collected as authorized under this section
13 exceeds one-third of the annual cost of regulation under this
14 part, the excess shall be used to reduce the licensure fees in
15 the next year.
16 (b) The resident protection fee collected shall be
17 deposited in the Resident Protection Trust Fund for the sole
18 purpose of paying, in accordance with the provisions of s.
19 400.063, for the appropriate alternate placement, care, and
20 treatment of a resident removed from a nursing home facility
21 on a temporary, emergency basis or for the maintenance and
22 care of residents in a nursing home facility pending removal
23 and alternate placement.
24 Section 7. Subsections (2) and (5) of section 400.071,
25 Florida Statutes, are amended, and subsections (11) and (12)
26 are added to said section, to read:
27 400.071 Application for license.--
28 (2) The application shall be under oath and shall
29 contain the following:
30 (a) The name, address, and social security number of
31 the applicant if an individual; if the applicant is a firm,
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1 partnership, or association, its name, address, and employer
2 identification number (EIN), and the name and address of any
3 controlling interest every member; if the applicant is a
4 corporation, its name, address, and employer identification
5 number (EIN), and the name and address of its director and
6 officers and of each person having at least a 5 percent
7 interest in the corporation; and the name by which the
8 facility is to be known.
9 (b) The name of any person whose name is required on
10 the application under the provisions of paragraph (a) and who
11 owns at least a 10 percent interest in any professional
12 service, firm, association, partnership, or corporation
13 providing goods, leases, or services to the facility for which
14 the application is made, and the name and address of the
15 professional service, firm, association, partnership, or
16 corporation in which such interest is held.
17 (c) The location of the facility for which a license
18 is sought and an indication, as in the original application,
19 that such location conforms to the local zoning ordinances.
20 (d) The name of the person or persons under whose
21 management or supervision the facility will be conducted and
22 the name of the its licensed administrator.
23 (e) A signed affidavit disclosing any financial or
24 ownership interest that a person or entity described in
25 paragraph (a) or paragraph (d) has held in the last 5 years in
26 any entity licensed by this state or any other state to
27 provide health or residential care which has closed
28 voluntarily or involuntarily; has filed for bankruptcy; has
29 had a receiver appointed; has had a license denied, suspended,
30 or revoked; or has had an injunction issued against it which
31 was initiated by a regulatory agency. The affidavit must
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1 disclose the reason any such entity was closed, whether
2 voluntarily or involuntarily.
3 (f)(e) The total number of beds and the total number
4 of Medicare and Medicaid certified beds.
5 (g)(f) Information relating to the number, experience,
6 and training of the employees of the facility and of the moral
7 character of the applicant and employees which the agency
8 requires by rule, including the name and address of any
9 nursing home with which the applicant or employees have been
10 affiliated through ownership or employment within 5 years of
11 the date of the application for a license and the record of
12 any criminal convictions involving the applicant and any
13 criminal convictions involving an employee if known by the
14 applicant after inquiring of the employee. The applicant must
15 demonstrate that sufficient numbers of qualified staff, by
16 training or experience, will be employed to properly care for
17 the type and number of residents who will reside in the
18 facility.
19 (h)(g) Copies of any civil verdict or judgment
20 involving the applicant rendered within the 10 years preceding
21 the application, relating to medical negligence, violation of
22 residents' rights, or wrongful death. As a condition of
23 licensure, the licensee agrees to provide to the agency copies
24 of any new verdict or judgment involving the applicant,
25 relating to such matters, within 30 days after filing with the
26 clerk of the court. The information required in this
27 paragraph shall be maintained in the facility's licensure file
28 and in an agency database which is available as a public
29 record.
30 (5) The applicant shall furnish satisfactory proof of
31 financial ability to operate and conduct the nursing home in
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1 accordance with the requirements of this part and all rules
2 adopted under this part, and the agency shall establish
3 standards for this purpose, including information reported
4 under paragraph (2)(e). The agency also shall establish
5 documentation requirements, to be completed by each applicant,
6 that show anticipated facility revenues and expenditures, the
7 basis for financing the anticipated cash-flow requirements of
8 the facility, and an applicant's access to contingency
9 financing.
10 (11) The agency may issue an inactive license to a
11 nursing home that will be temporarily unable to provide
12 services but that is reasonably expected to resume services.
13 Such designation may be made for a period not to exceed 12
14 months but may be renewed by the agency for up to 6 additional
15 months. Any request by a licensee that a nursing home become
16 inactive must be submitted to the agency and approved by the
17 agency prior to initiating any suspension of service or
18 notifying residents. Upon agency approval, the nursing home
19 shall notify residents of any necessary discharge or transfer
20 as provided in s. 400.0255.
21 (12) As a condition of licensure, each facility must
22 establish and submit with its application a plan for quality
23 assurance and for conducting risk management.
24 Section 8. Subsection (3) is added to section 400.111,
25 Florida Statutes, to read:
26 400.111 Expiration of license; renewal.--
27 (3) The agency may not renew a license if the
28 applicant has failed to pay any fines assessed by final order
29 of the agency or final order of the Health Care Financing
30 Administration under requirements for federal certification.
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1 Section 9. Subsection (2) of section 400.118, Florida
2 Statutes, is amended to read:
3 400.118 Quality assurance; early warning system;
4 monitoring; rapid response teams.--
5 (2)(a) The agency shall establish within each district
6 office one or more quality-of-care monitors, based on the
7 number of nursing facilities in the district, to monitor all
8 nursing facilities in the district on a regular, unannounced,
9 aperiodic basis, including nights, evenings, weekends, and
10 holidays. Quality-of-care monitors shall visit each nursing
11 facility at least quarterly. Priority for additional
12 monitoring visits shall be given to nursing facilities with a
13 history of resident patient care deficiencies. Quality-of-care
14 monitors shall be registered nurses who are trained and
15 experienced in nursing facility regulation, standards of
16 practice in long-term care, and evaluation of patient care.
17 Individuals in these positions shall not be deployed by the
18 agency as a part of the district survey team in the conduct of
19 routine, scheduled surveys, but shall function solely and
20 independently as quality-of-care monitors. Quality-of-care
21 monitors shall assess the overall quality of life in the
22 nursing facility and shall assess specific conditions in the
23 facility directly related to resident patient care, including
24 the operations of internal quality improvement and risk
25 management programs and adverse incident reports. The
26 quality-of-care monitor shall include in an assessment visit
27 observation of the care and services rendered to residents and
28 formal and informal interviews with residents, family members,
29 facility staff, resident guests, volunteers, other regulatory
30 staff, and representatives of a long-term care ombudsman
31 council or Florida advocacy council.
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1 (b) Findings of a monitoring visit, both positive and
2 negative, shall be provided orally and in writing to the
3 facility administrator or, in the absence of the facility
4 administrator, to the administrator on duty or the director of
5 nursing. The quality-of-care monitor may recommend to the
6 facility administrator procedural and policy changes and staff
7 training, as needed, to improve the care or quality of life of
8 facility residents. Conditions observed by the quality-of-care
9 monitor which threaten the health or safety of a resident or
10 that represent repeated observations of deficient practice
11 shall be reported immediately to the agency area office
12 supervisor for appropriate regulatory action and, as
13 appropriate or as required by law, to law enforcement, adult
14 protective services, or other responsible agencies.
15 (c) Any record, whether written or oral, or any
16 written or oral communication generated pursuant to paragraph
17 (a) or paragraph (b) shall not be subject to discovery or
18 introduction into evidence in any civil or administrative
19 action against a nursing facility arising out of matters which
20 are the subject of quality-of-care monitoring, and a person
21 who was in attendance at a monitoring visit or evaluation may
22 not be permitted or required to testify in any such civil or
23 administrative action as to any evidence or other matters
24 produced or presented during the monitoring visits or
25 evaluations. However, information, documents, or records
26 otherwise available from original sources are not to be
27 construed as immune from discovery or use in any such civil or
28 administrative action merely because they were presented
29 during monitoring visits or evaluations, and any person who
30 participates in such activities may not be prevented from
31 testifying as to matters within his or her knowledge, but such
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1 witness may not be asked about his or her participation in
2 such activities. The exclusion from the discovery or
3 introduction of evidence in any civil or administrative action
4 provided for herein shall not apply when the quality-of-care
5 monitor makes a report to the appropriate authorities
6 regarding a threat to the health or safety of a resident.
7 Section 10. Section 400.121, Florida Statutes, is
8 amended to read:
9 400.121 Denial, suspension, revocation of license;
10 moratorium on admissions; administrative fines; procedure;
11 order to increase staffing.--
12 (1) The agency may deny, revoke, or suspend a license
13 or impose an administrative fine, not to exceed $500 per
14 violation per day, for:
15 (a) A violation of any provision of s. 400.102(1);.
16 (b) A demonstrated pattern of deficient practice;
17 (c) Failure to pay any outstanding fines assessed by
18 final order of the agency or fines assessed by the Health Care
19 Financing Administration pursuant to requirements for federal
20 certification;
21 (d) Exclusion from the Medicare or Medicaid program;
22 or
23 (e) An adverse action against any controlling interest
24 by a regulatory agency, including the appointment of a
25 receiver; denial, suspension, or revocation of a license; or
26 the issuance of an injunction by a regulatory agency. If the
27 adverse action involves solely the management company, the
28 applicant or licensee shall be given 30 days to remedy before
29 final action is taken.
30
31
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1 All hearings shall be held within the county in which the
2 licensee or applicant operates or applies for a license to
3 operate a facility as defined herein.
4 (2) Except as provided in s. 400.23(8), a $500 fine
5 shall be imposed The agency, as a part of any final order
6 issued by it under this part, may impose such fine as it deems
7 proper, except that such fine may not exceed $500 for each
8 violation. Each day a violation of this part occurs
9 constitutes a separate violation and is subject to a separate
10 fine, but in no event may any fine aggregate more than $5,000.
11 A fine may be levied pursuant to this section in lieu of and
12 notwithstanding the provisions of s. 400.23. Fines paid by any
13 nursing home facility licensee under this subsection shall be
14 deposited in the Resident Protection Trust Fund and expended
15 as provided in s. 400.063.
16 (3) The agency may issue an order immediately
17 suspending or revoking a license when it determines that any
18 condition in the facility presents a danger to the health,
19 safety, or welfare of the residents in the facility.
20 (4)(a) The agency may impose an immediate moratorium
21 on admissions to any facility when the agency determines that
22 any condition in the facility presents a threat to the health,
23 safety, or welfare of the residents in the facility.
24 (b) Where the agency has placed a moratorium on
25 admissions on any facility two times within a 7-year period,
26 the agency may suspend the license of the nursing home and the
27 facility's management company, if any. The licensee shall be
28 afforded an administrative hearing within 90 days after the
29 suspension to determine whether the license should be revoked.
30 During the suspension, the agency shall take the facility into
31 receivership and shall operate the facility.
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1 (5) An action taken by the agency to deny, suspend, or
2 revoke a facility's license under this part, in which the
3 agency claims that the facility owner or an employee of the
4 facility has threatened the health, safety, or welfare of a
5 resident of the facility, shall be heard by the Division of
6 Administrative Hearings of the Department of Management
7 Services within 120 days after receipt of the facility's
8 request for a hearing, unless the time limitation is waived by
9 both parties. The administrative law judge must render a
10 decision within 30 days after receipt of a proposed
11 recommended order. This subsection does not modify the
12 requirement that an administrative hearing be held within 90
13 days after a license is suspended under paragraph (4)(b).
14 (6) The agency is authorized to require a facility to
15 increase staffing beyond the minimum required by law, if the
16 agency has taken administrative action against the facility
17 for care-related deficiencies directly attributable to
18 insufficient staff. Under such circumstances, the facility may
19 request an expedited interim rate increase. The agency shall
20 process the request within 10 days after receipt of all
21 required documentation from the facility. A facility that
22 fails to maintain the required increased staffing is subject
23 to a fine of $500 per day for each day the staffing is below
24 the level required by the agency.
25 (7) An administrative proceeding challenging an action
26 by the agency to enforce licensure requirements shall be
27 reviewed on the basis of the facts and conditions that
28 resulted in the initial agency action.
29 Section 11. Subsection (10) of section 400.141,
30 Florida Statutes, is amended, and subsections (14), (15),
31 (16), (17), (18), and (19) are added to said section, to read:
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1 400.141 Administration and management of nursing home
2 facilities.--Every licensed facility shall comply with all
3 applicable standards and rules of the agency and shall:
4 (10) Keep full records of resident admissions and
5 discharges; medical and general health status, including
6 medical records, personal and social history, and identity and
7 address of next of kin or other persons who may have
8 responsibility for the affairs of the residents; and
9 individual resident care plans including, but not limited to,
10 prescribed services, services related to assistance with
11 activities of daily living, service frequency and duration,
12 and service goals. The records shall be open to inspection by
13 the agency.
14 (14) Submit to the agency the information specified in
15 s. 400.071(2)(e) for a management company within 30 days after
16 the effective date of the management agreement.
17 (15) Submit semiannually to the agency, or more
18 frequently if requested by the agency, information regarding
19 facility staff-to-resident ratios, staff turnover, and staff
20 stability, including information regarding certified nursing
21 assistants, licensed nurses, the director of nursing, and the
22 facility administrator. For purposes of this reporting:
23 (a) Staff-to-resident ratios must be reported in the
24 categories specified in s. 400.23(3)(a) and applicable rules.
25 The ratio must be reported as an average for the most recent
26 calendar quarter.
27 (b) Staff turnover must be reported for the most
28 recent 12-month period ending on the last workday of the most
29 recent calendar quarter prior to the date the information is
30 submitted. The turnover rate must be computed quarterly, with
31 the annual rate being the cumulative sum of the quarterly
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1 rates. The formula for determining the turnover rate is the
2 total number of terminations or separations from employment
3 experienced during the quarter, excluding any employee
4 terminated during a probationary period of 3 months or less,
5 divided by the total number of staff employed at the end of
6 the period for which the rate is computed, and expressed as a
7 percentage.
8 (c) The formula for determining staff stability is the
9 total number of employees that have been employed over the
10 previous 12 months, divided by the total number of employees
11 employed at the end of the most recent calendar quarter, and
12 expressed as a percentage.
13 (16) Report monthly the number of vacant beds in the
14 facility which are available for resident occupancy on the day
15 the information is reported.
16 (17) Ensure that any resident who displays mental,
17 psychosocial, or adjustment difficulty receives appropriate
18 treatment and services to correct the assessed problem. The
19 attending physician of any resident who exhibits signs of
20 dementia or cognitive impairment must be notified by the
21 facility of the impairment to rule out the presence of an
22 underlying physiological condition that may be contributing to
23 such dementia or impairment. The notification must occur
24 within 7 days after admission of a resident to the facility or
25 within 7 days after the acknowledgement of such sign by
26 facility staff. The facility must notify the resident's
27 designee or legal representative prior to the notification.
28 If an underlying condition is determined to exist, the
29 facility shall arrange for necessary care and services to
30 treat the underlying condition.
31
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1 (18) If the facility implements a dining and
2 hospitality attendant program, ensure that the program is
3 developed and implemented under the supervision of the
4 facility director of nursing. A licensed nurse or a registered
5 dietitian must conduct training of dining and hospitality
6 attendants. A person employed by a facility as a dining and
7 hospitality attendant must perform tasks under the direct
8 supervision of a licensed nurse.
9 (19) Report to the agency any filing for bankruptcy
10 protection by the facility or its parent corporation,
11 divestiture or spin-off of its assets, or corporate
12 reorganization within 30 days after the completion of such
13 activity.
14
15 Facilities that have been awarded a Gold Seal under the
16 program established in s. 400.235 may develop a plan to
17 provide certified nursing assistant training as prescribed by
18 federal regulations and state rules and may apply to the
19 agency for approval of its program.
20 Section 12. Section 400.147, Florida Statutes, is
21 created to read:
22 400.147 Internal risk management and quality assurance
23 program.--
24 (1) Every facility shall, as part of its
25 administrative functions, establish an internal risk
26 management and quality assurance program, the purpose of which
27 is to assess resident care practices; review facility quality
28 indicators, facility incident reports, deficiencies cited by
29 the agency, individual resident shared-risk agreements as
30 defined in s. 400.021, and resident grievances; and develop
31
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1 plans of action to correct and respond quickly to identified
2 quality deficiencies. The program must include:
3 (a) A risk manager employed by the facility and
4 licensed under chapter 395 who is responsible for
5 implementation and oversight of the facility's internal risk
6 management and quality assurance program as required by this
7 section. A risk manager must not be made responsible for more
8 than four internal risk management and quality assurance
9 programs in separate facilities licensed pursuant to chapter
10 400 or chapter 395.
11 (b) A risk management and quality assurance committee
12 consisting of the facility risk manager, the administrator,
13 the director of nursing, the medical director, and at least
14 three other members of the facility staff. The risk management
15 and quality assurance committee shall meet at least monthly.
16 (c) Policies and procedures to implement the internal
17 risk management and quality assurance program, which must
18 include the investigation and analysis of the frequency and
19 causes of general categories and specific types of adverse
20 incidents to residents.
21 (d) The development of appropriate measures to
22 minimize the risk of adverse incidents to residents,
23 including, but not limited to, education and training in risk
24 management and risk prevention for all nonphysician personnel,
25 as follows:
26 1. Such education and training of all nonphysician
27 personnel shall be part of their initial orientation; and
28 2. At least 3 hours of such education and training
29 shall be provided annually for all nonphysician personnel of
30 the licensed facility working in clinical areas and providing
31 resident care.
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1 (e) The analysis of resident grievances that relate to
2 resident care and the quality of clinical services.
3 (f) The development and implementation of an incident
4 reporting system based upon the affirmative duty of all health
5 care providers and all agents and employees of the facility to
6 report adverse incidents to the risk manager.
7 (2) The internal risk management and quality assurance
8 program is the responsibility of the facility administrator.
9 (3) In addition to the programs mandated by this
10 section, other innovative approaches intended to reduce the
11 frequency and severity of adverse incidents to residents and
12 violations of residents' rights shall be encouraged and their
13 implementation and operation facilitated.
14 (4) Each internal risk management and quality
15 assurance program shall include the use of incident reports to
16 be filed with the risk manager and the facility administrator.
17 The risk manager shall have free access to all resident
18 records of the licensed facility. The incident reports are
19 confidential as provided by law, are part of the workpapers of
20 the attorney defending the facility in litigation relating to
21 the facility, and are subject to discovery but are not
22 admissible as evidence in court. As a part of each internal
23 risk management and quality assurance program, the incident
24 reports shall be used to develop categories of incidents which
25 identify problem areas. Once identified, procedures shall be
26 adjusted to correct the problem areas.
27 (5) For purposes of reporting to the agency under this
28 section, the term "adverse incident" means:
29 (a) An event over which facility personnel could
30 exercise control and which is associated in whole or in part
31 with the facility's intervention, rather than the condition
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1 for which such intervention occurred, and which results in one
2 of the following:
3 1. Death;
4 2. Brain or spinal damage;
5 3. Permanent disfigurement;
6 4. Fracture or dislocation of bones or joints;
7 5. A resulting limitation of neurological, physical,
8 or sensory function;
9 6. Any condition that required medical attention to
10 which the resident has not given his or her informed consent
11 including failure to honor advanced directives; or
12 7. Any condition that required the transfer of the
13 resident, within or outside the facility, to a unit providing
14 a more acute level of care due to the adverse incident, rather
15 than the resident's condition prior to the adverse incident;
16 (b) Abuse, neglect, or exploitation as defined in s.
17 415.102 or s. 39.01;
18 (c) Resident elopement; or
19 (d) An event that is reported to law enforcement.
20 (6) The facility shall notify the agency within 1
21 business day after the occurrence of an adverse incident. The
22 notification must be made in writing and be provided by
23 facsimile device or overnight mail delivery. The notification
24 must include information regarding the identity of the
25 affected resident, the type of adverse incident, the
26 initiation of an investigation by the facility, and whether
27 the events causing or resulting in the adverse incident
28 represent a potential risk to any other resident. The
29 notification is confidential as provided by law and is not
30 discoverable or admissible in any civil or administrative
31 action, except in disciplinary proceedings by the agency or
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1 the appropriate regulatory board. The agency may investigate,
2 as it deems appropriate, any such incident and prescribe
3 measures that must or may be taken in response to the
4 incident. The agency shall review each incident and determine
5 whether it potentially involved conduct by the health care
6 professional who is subject to disciplinary action, in which
7 case the provisions of s. 456.073 shall apply.
8 (7)(a) Each facility subject to this section shall
9 submit an adverse incident report to the agency for each
10 adverse incident within 15 calendar days after its occurrence
11 on a form developed by the agency.
12 (b) The information reported to the agency pursuant to
13 paragraph (a) which relates to persons licensed under chapter
14 458, chapter 459, chapter 461, or chapter 466 shall be
15 reviewed by the agency. The agency shall determine whether any
16 of the incidents potentially involved conduct by a health care
17 professional who is subject to disciplinary action, in which
18 case the provisions of s. 456.073 shall apply.
19 (c) The report submitted to the agency must also
20 contain the name and license number of the risk manager of the
21 facility.
22 (d) The adverse incident report is confidential as
23 provided by law and is not discoverable or admissible in any
24 civil or administrative action, except in disciplinary
25 proceedings by the agency or the appropriate regulatory board.
26 (8) Each facility subject to this section shall report
27 monthly any liability claim filed against it. The report must
28 include the name of the resident, the date or dates of the
29 incident leading to the claim, and the type of injury or
30 violation of rights alleged to have occurred.
31 (9) The internal risk manager of each facility shall:
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1 (a) Investigate every allegation of sexual misconduct
2 which is made against a member of the facility's personnel who
3 has direct resident contact if it is alleged that the sexual
4 misconduct occurred at the facility or on the grounds of the
5 facility;
6 (b) Report every allegation of sexual misconduct to
7 the administrator of the facility; and
8 (c) Notify the resident representative or guardian of
9 the victim that an allegation of sexual misconduct has been
10 made and that an investigation is being conducted.
11 (10)(a) Any witness who witnessed or who possesses
12 actual knowledge of the act that is the basis of an allegation
13 of sexual abuse shall notify:
14 1. The local law enforcement agency;
15 2. The central abuse hotline of the Department of
16 Children and Family Services; and
17 3. The risk manager and the administrator.
18 (b) As used in this subsection, the term "sexual
19 abuse" means acts of a sexual nature committed for the sexual
20 gratification of anyone upon or in the presence of a
21 vulnerable adult, without the vulnerable adult's informed
22 consent, or upon or in the presence of a minor. The term
23 includes, but is not limited to, the acts defined in s.
24 794.011(1)(h), fondling, exposure of a vulnerable adult's or
25 minor's sexual organs, or the use of the vulnerable adult or
26 minor to solicit for or engage in prostitution or sexual
27 performance. The term does not include any act intended for a
28 valid medical purpose or any act that may reasonably be
29 construed to be a normal caregiving action.
30 (11) The agency shall review, as part of its licensure
31 inspection process, the internal risk management and quality
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1 assurance program at each facility regulated by this section
2 to determine whether the program meets standards established
3 in statutory laws and rules, is being conducted in a manner
4 designed to reduce adverse incidents, and is appropriately
5 reporting incidents as required by this section.
6 (12) There is no monetary liability on the part of,
7 and a cause of action for damages may not arise against, any
8 risk manager licensed under chapter 395 for the implementation
9 and oversight of the internal risk management and quality
10 assurance program in a facility licensed under this part as
11 required by this section, or for any act or proceeding
12 undertaken or performed within the scope of the functions of
13 such internal risk management and quality assurance program if
14 the risk manager acts without intentional fraud.
15 (13) If the agency, through its receipt of the adverse
16 incident reports prescribed in subsection (7), or through any
17 investigation, has a reasonable belief that conduct by a staff
18 member or employee of a facility is grounds for disciplinary
19 action by the appropriate regulatory board, the agency shall
20 report this fact to the regulatory board.
21 (14) The agency may adopt rules to administer this
22 section.
23 (15) The agency shall annually submit to the
24 Legislature a report on nursing home internal risk management.
25 The report must include the following information arrayed by
26 county:
27 (a) The total number of adverse incidents.
28 (b) A listing, by category, of the types of adverse
29 incidents, the number of incidents occurring within each
30 category, and the type of staff involved.
31
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1 (c) A listing, by category, of the types of injury
2 caused and the number of injuries occurring within each
3 category.
4 (d) Types of liability claims filed based on an
5 adverse incident or reportable injury.
6 (e) Disciplinary action taken against staff,
7 categorized by type of staff involved.
8 Section 13. Section 400.1755, Florida Statutes, is
9 created to read:
10 400.1755 Care for persons with Alzheimer's disease or
11 other related disorders.--
12 (1)(a) An individual who is employed by a facility
13 that provides care for residents with Alzheimer's disease or
14 other related disorders must complete up to 4 hours of initial
15 dementia-specific training developed or approved by the
16 Department of Elderly Affairs. The training must be completed
17 within 3 months after beginning employment.
18 (b) A direct caregiver who is employed by a facility
19 that provides care for residents with Alzheimer's disease or
20 other related disorders and who provides direct care to such
21 residents must complete the required initial training and 4
22 additional hours of training developed or approved by the
23 Department of Elderly Affairs. The training must be completed
24 within 9 months after beginning employment.
25 (2) In addition to the training required under
26 subsection (1), a direct caregiver must participate in a
27 minimum of 4 contact hours of dementia-specific continuing
28 education each calendar year as approved by the Department of
29 Elderly Affairs.
30 (3) Upon completing any training listed in subsection
31 (1), the employee or direct caregiver shall be issued a
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1 certificate that includes the name of the training provider,
2 the topic covered, and the date and signature of the training
3 provider. The certificate is evidence of completion of
4 training in the identified topic, and the employee or direct
5 caregiver is not required to repeat training in that topic if
6 the employee or direct caregiver changes employment to a
7 different facility. The direct caregiver must comply with
8 other applicable continuing education requirements.
9 (4) The Department of Elderly Affairs, or its
10 designee, shall approve the initial and continuing education
11 courses and providers.
12 (5) The Department of Elderly Affairs shall keep a
13 current list of providers who are approved to provide initial
14 and continuing education for staff of facilities that provide
15 care for persons with Alzheimer's disease or other related
16 disorders.
17 (6) The Department of Elderly Affairs shall adopt
18 rules to establish standards for trainers and training
19 necessary to administer this section.
20 Section 14. Subsection (3) and paragraph (a) of
21 subsection (5) of section 400.191, Florida Statutes, are
22 amended to read:
23 400.191 Availability, distribution, and posting of
24 reports and records.--
25 (3) Each nursing home facility licensee shall maintain
26 as public information, available upon request, records of all
27 cost and inspection reports pertaining to that facility that
28 have been filed with, or issued by, any governmental agency.
29 Copies of such reports shall be retained in such records for
30 not less than 5 years from the date the reports are filed or
31 issued.
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1 (a) The agency shall quarterly publish a "Nursing Home
2 Guide Watch List" to assist consumers in evaluating the
3 quality of nursing home care in Florida. The watch list must
4 identify each facility that met the criteria for a conditional
5 licensure status on any day within the quarter covered by the
6 list; each facility that was operating under bankruptcy
7 protection on any day within the quarter; and each facility
8 that was operating without liability insurance. The watch
9 list must include the facility's name, address, and ownership;
10 the county in which the facility operates; the license
11 expiration date; the number of licensed beds; a description of
12 the deficiency causing the facility to be placed on the list;
13 any corrective action taken; and the cumulative number of
14 times the facility has been on a watch list. The watch list
15 must include a brief description regarding how to choose a
16 nursing home, the categories of licensure, the agency's
17 inspection process, an explanation of terms used in the watch
18 list, and the addresses and phone numbers of the agency's
19 managed care and health quality area offices.
20 (b) Upon publication of each quarterly watch list, the
21 agency must transmit a copy of the watch list to each nursing
22 home facility by mail and must make the watch list available
23 on the agency's Internet web site.
24 (5) Every nursing home facility licensee shall:
25 (a) Post, in a sufficient number of prominent
26 positions in the nursing home so as to be accessible to all
27 residents and to the general public:,
28 1. A concise summary of the last inspection report
29 pertaining to the nursing home and issued by the agency, with
30 references to the page numbers of the full reports, noting any
31 deficiencies found by the agency and the actions taken by the
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1 licensee to rectify such deficiencies and indicating in such
2 summaries where the full reports may be inspected in the
3 nursing home.
4 2. A copy of the most recent version of the Florida
5 Nursing Home Guide Watch List.
6 Section 15. Subsection (2) of section 400.211, Florida
7 Statutes, is amended, and subsection (4) is added to said
8 section, to read:
9 400.211 Persons employed as nursing assistants;
10 certification requirement.--
11 (2) The following categories of persons who are not
12 certified as nursing assistants under part II of chapter 464
13 may be employed as a certified nursing assistant by a nursing
14 facility for a period of 4 months:
15 (a) Persons who are enrolled in, or have completed, a
16 state-approved nursing assistant program; or
17 (b) Persons who have been positively verified as
18 actively certified and on the registry in another state and
19 who have not been found guilty of abuse, neglect, or
20 exploitation in another state, regardless of adjudication, and
21 have not entered a plea of nolo contendere or guilty with no
22 findings of abuse; or
23 (c) Persons who have preliminarily passed the state's
24 certification exam.
25
26 The certification requirement must be met within 4 months
27 after initial employment as a nursing assistant in a licensed
28 nursing facility.
29 (4) When employed by a nursing home facility for a
30 12-month period or longer, a nursing assistant, to maintain
31 certification, shall submit to a performance review every 12
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1 months and must receive regular in service education based on
2 the outcome of such reviews. The in service training must:
3 (a) Be sufficient to ensure the continuing competence
4 of nursing assistants, must be at least 18 hours per year, and
5 may include hours accrued under s. 464.203;
6 (b) Include, at a minimum:
7 1. Techniques for assisting with eating and proper
8 feeding;
9 2. Principles of adequate nutrition and hydration;
10 3. Techniques for assisting and responding to the
11 cognitively impaired resident or the resident with difficult
12 behaviors;
13 4. Techniques for caring for the resident at the
14 end-of-life; and
15 5. Recognizing changes that place a resident at risk
16 for pressure ulcers and falls; and
17 (c) Address areas of weakness as determined in nursing
18 assistant performance reviews and may address the special
19 needs of residents as determined by the nursing home facility
20 staff.
21 Section 16. Subsections (2), (3), and (8) of section
22 400.23, Florida Statutes, are amended to read:
23 400.23 Rules; evaluation and deficiencies; licensure
24 status.--
25 (2) Pursuant to the intention of the Legislature, the
26 agency, in consultation with the Department of Health and the
27 Department of Elderly Affairs, shall adopt and enforce rules
28 to implement this part, which shall include reasonable and
29 fair criteria in relation to:
30 (a) The location and construction of the facility;
31 including fire and life safety, plumbing, heating, cooling,
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1 lighting, ventilation, and other housing conditions which will
2 ensure the health, safety, and comfort of residents, including
3 an adequate call system. The agency shall establish standards
4 for facilities and equipment to increase the extent to which
5 new facilities and a new wing or floor added to an existing
6 facility after July 1, 1999, are structurally capable of
7 serving as shelters only for residents, staff, and families of
8 residents and staff, and equipped to be self-supporting during
9 and immediately following disasters. The agency shall work
10 with facilities licensed under this part and report to the
11 Governor and Legislature by April 1, 1999, its recommendations
12 for cost-effective renovation standards to be applied to
13 existing facilities. In making such rules, the agency shall be
14 guided by criteria recommended by nationally recognized
15 reputable professional groups and associations with knowledge
16 of such subject matters. The agency shall update or revise
17 such criteria as the need arises. All nursing homes must
18 comply with those lifesafety code requirements and building
19 code standards applicable at the time of approval of their
20 construction plans. The agency may require alterations to a
21 building if it determines that an existing condition
22 constitutes a distinct hazard to life, health, or safety. The
23 agency shall adopt fair and reasonable rules setting forth
24 conditions under which existing facilities undergoing
25 additions, alterations, conversions, renovations, or repairs
26 shall be required to comply with the most recent updated or
27 revised standards.
28 (b) The number and qualifications of all personnel,
29 including management, medical, nursing, and other professional
30 personnel, and nursing assistants, orderlies, and support
31
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1 personnel, having responsibility for any part of the care
2 given residents.
3 (c) All sanitary conditions within the facility and
4 its surroundings, including water supply, sewage disposal,
5 food handling, and general hygiene which will ensure the
6 health and comfort of residents.
7 (d) The equipment essential to the health and welfare
8 of the residents.
9 (e) A uniform accounting system.
10 (f) The care, treatment, and maintenance of residents
11 and measurement of the quality and adequacy thereof, based on
12 rules developed under this chapter and the Omnibus Budget
13 Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22,
14 1987), Title IV (Medicare, Medicaid, and Other Health-Related
15 Programs), Subtitle C (Nursing Home Reform), as amended.
16 (g) The preparation and annual update of a
17 comprehensive emergency management plan. The agency shall
18 adopt rules establishing minimum criteria for the plan after
19 consultation with the Department of Community Affairs. At a
20 minimum, the rules must provide for plan components that
21 address emergency evacuation transportation; adequate
22 sheltering arrangements; postdisaster activities, including
23 emergency power, food, and water; postdisaster transportation;
24 supplies; staffing; emergency equipment; individual
25 identification of residents and transfer of records; and
26 responding to family inquiries. The comprehensive emergency
27 management plan is subject to review and approval by the local
28 emergency management agency. During its review, the local
29 emergency management agency shall ensure that the following
30 agencies, at a minimum, are given the opportunity to review
31 the plan: the Department of Elderly Affairs, the Department
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1 of Health, the Agency for Health Care Administration, and the
2 Department of Community Affairs. Also, appropriate volunteer
3 organizations must be given the opportunity to review the
4 plan. The local emergency management agency shall complete
5 its review within 60 days and either approve the plan or
6 advise the facility of necessary revisions.
7 (h) The implementation of the consumer satisfaction
8 survey pursuant to s. 400.0225; the availability,
9 distribution, and posting of reports and records pursuant to
10 s. 400.191; and the Gold Seal Program pursuant to s. 400.235.
11 (3)(a) The agency shall adopt rules providing for the
12 minimum staffing requirements for nursing homes. These
13 requirements shall include, for each nursing home facility, a
14 minimum certified nursing assistant staffing of 2.3 hours of
15 direct care per resident per day beginning January 1, 2002,
16 increasing to 2.6 hours of direct care per resident per day
17 beginning January 1, 2003, increasing to 2.8 hours of direct
18 care per resident per day beginning January 1, 2004, and
19 increasing to 2.9 hours of direct care per resident per day
20 beginning January 1, 2005, but never less than one certified
21 nursing assistant per 20 residents, and a minimum licensed
22 nursing staffing of 1.0 hour of direct resident care per
23 resident per day but never less than one licensed nurse per 40
24 residents, including evening and night shifts and weekends.
25 Nursing assistants employed under s. 400.211(2) may be
26 included in computing the staffing ratio for certified nursing
27 assistants only if they provide nursing assistance services to
28 residents on a full-time basis. Each nursing home must
29 document compliance with staffing standards as required under
30 this paragraph and post daily Agency rules shall specify
31 requirements for documentation of compliance with staffing
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1 standards, sanctions for violation of such standards, and
2 requirements for daily posting of the names of staff on duty
3 for the benefit of facility residents and the public. The
4 agency shall recognize the use of licensed nurses for
5 compliance with minimum staffing requirements for certified
6 nursing assistants, provided that the facility otherwise meets
7 the minimum staffing requirements for licensed nurses and that
8 the licensed nurses so recognized are performing the duties of
9 a certified nursing assistant. Unless otherwise approved by
10 the agency, licensed nurses counted towards the minimum
11 staffing requirements for certified nursing assistants must
12 exclusively perform the duties of a certified nursing
13 assistant for the entire shift and shall not also be counted
14 towards the minimum staffing requirements for licensed nurses.
15 If the agency approved a facility's request to use a licensed
16 nurse to perform both licensed nursing and certified nursing
17 assistant duties, the facility must allocate the amount of
18 staff time specifically spent on certified nursing assistant
19 duties for the purpose of documenting compliance with minimum
20 staffing requirements for certified and licensed nursing
21 staff. In no event may the hours of a licensed nurse with dual
22 job responsibilities be counted twice.
23 (b) The agency shall adopt rules to allow properly
24 trained staff of a nursing facility, in addition to certified
25 nursing assistants and licensed nurses, to assist residents
26 with eating. The rules shall specify the minimum training
27 requirements and shall specify the physiological conditions or
28 disorders of residents which would necessitate that the eating
29 assistance be provided by nursing personnel of the facility.
30 Nonnursing staff providing eating assistance to residents
31
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1 under the provisions of this subsection shall not count
2 towards compliance with minimum staffing standards.
3 (c) Licensed practical nurses licensed under chapter
4 464 who are providing nursing services in nursing home
5 facilities under this part may supervise the activities of
6 other licensed practical nurses, certified nursing assistants,
7 and other unlicensed personnel providing services in such
8 facilities in accordance with rules adopted by the Board of
9 Nursing.
10 (8) The agency shall adopt rules to provide that, when
11 the criteria established under subsection (2) are not met,
12 such deficiencies shall be classified according to the nature
13 of the deficiency. The agency shall indicate the
14 classification on the face of the notice of deficiencies as
15 follows:
16 (a) Class I deficiencies are those which the agency
17 determines present an imminent danger to the residents or
18 guests of the nursing home facility or a substantial
19 probability that death or serious physical harm would result
20 therefrom. The condition or practice constituting a class I
21 violation shall be abated or eliminated immediately, unless a
22 fixed period of time, as determined by the agency, is required
23 for correction. Notwithstanding s. 400.121(2), A class I
24 deficiency is subject to a civil penalty in an amount not less
25 than $10,000 $5,000 and not exceeding $25,000 for each and
26 every deficiency. A fine must may be levied notwithstanding
27 the correction of the deficiency.
28 (b) Class II deficiencies are those which the agency
29 determines have a direct or immediate relationship to the
30 health, safety, or security of the nursing home facility
31 residents, other than class I deficiencies. A class II
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1 deficiency is subject to a civil penalty in an amount not less
2 than $5,000 $1,000 and not exceeding $10,000 for each and
3 every deficiency. A citation for a class II deficiency must
4 shall specify the time within which the deficiency is required
5 to be corrected. If a class II deficiency is corrected within
6 the time specified, no civil penalty shall be imposed, unless
7 it is a repeated offense.
8 (c) Class III deficiencies are those which the agency
9 determines to have an indirect or potential relationship to
10 the health, safety, or security of the nursing home facility
11 residents, other than class I or class II deficiencies. A
12 class III deficiency is shall be subject to a civil penalty of
13 not less than $1,000 $500 and not exceeding $2,500 for each
14 and every deficiency. A citation for a class III deficiency
15 must shall specify the time within which the deficiency is
16 required to be corrected. If a class III deficiency is
17 corrected within the time specified, no civil penalty shall be
18 imposed, unless it is a repeated offense.
19 Section 17. Subsection (5) of section 400.235, Florida
20 Statutes, is amended to read:
21 400.235 Nursing home quality and licensure status;
22 Gold Seal Program.--
23 (5) Facilities must meet the following additional
24 criteria for recognition as a Gold Seal Program facility:
25 (a) Had no class I or class II deficiencies within the
26 30 months preceding application for the program.
27 (b) Evidence financial soundness and stability
28 according to standards adopted by the agency in administrative
29 rule.
30 (c) Participate consistently in the required consumer
31 satisfaction process as prescribed by the agency, and
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1 demonstrate that information is elicited from residents,
2 family members, and guardians about satisfaction with the
3 nursing facility, its environment, the services and care
4 provided, the staff's skills and interactions with residents,
5 attention to resident's needs, and the facility's efforts to
6 act on information gathered from the consumer satisfaction
7 measures.
8 (d) Evidence the involvement of families and members
9 of the community in the facility on a regular basis.
10 (e) Have a stable workforce, as described in s.
11 400.141, as evidenced by a relatively low rate of turnover
12 among certified nursing assistants and licensed nurses within
13 the 30 months preceding application for the Gold Seal Program,
14 and demonstrate a continuing effort to maintain a stable
15 workforce and to reduce turnover of licensed nurses and
16 certified nursing assistants.
17 (f) Evidence an outstanding record regarding the
18 number and types of substantiated complaints reported to the
19 State Long-Term Care Ombudsman Council within the 30 months
20 preceding application for the program.
21 (g) Provide targeted inservice training provided to
22 meet training needs identified by internal or external quality
23 assurance efforts.
24
25 A facility assigned a conditional licensure status may not
26 qualify for consideration for the Gold Seal Program until
27 after it has operated for 30 months with no class I or class
28 II deficiencies and has completed a regularly scheduled
29 relicensure survey.
30 Section 18. Section 400.237, Florida Statutes, is
31 created to read:
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1 400.237 Nursing home facility grading system; ranking
2 of nursing home facilities; use of ranking information.--
3 (1) It is the intent of the Legislature to encourage
4 continuous improvement in the quality of care and quality of
5 life of nursing home facility residents. It is further the
6 intent of the Legislature that nursing home facilities with a
7 record of providing good quality care receive favorable rates
8 from liability insurers and favorable consideration by the
9 courts in civil litigation.
10 (2) The Legislature intends to develop a grading
11 system that measures nursing home facility performance related
12 to quality indicators. The system must build upon the
13 procedures for measuring quality of care developed by the Gold
14 Seal Program under s. 400.235.
15 (3) By July 1, 2002, the agency shall prepare and
16 implement a system for grading nursing home facilities against
17 optimal standards for quality of care and quality of life. The
18 system must include a uniform method of evaluating nursing
19 home facilities in the following areas:
20 (a) Staffing levels and ratios.
21 (b) Staff turnover rates.
22 (c) Credentials of key personnel.
23 (d) Pressure ulcers.
24 (e) Nutrition and hydration.
25 (f) Use of restraints.
26 (g) Dignity.
27 (h) Maintenance of residents' functioning.
28 (i) Resident and resident family satisfaction.
29 (j) Substantiated complaints.
30 (k) Deficiency citations.
31 (l) Adverse incidents and past claims experience.
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1 (m) Hospitalizations.
2 (n) Facility cleanliness.
3 (o) Falls.
4 (p) Community and family involvement.
5 (q) Ombudsman program evaluation.
6 (r) Living environment.
7 (s) Risk management, loss control, and general safety.
8 (t) Privacy.
9 (4) Each nursing home facility must be graded annually
10 against an optimal quality score and ranked according to
11 whether its score is at or above 80 percent of the optimal
12 score, in which case the facility shall be given five stars;
13 at or above 60 percent, but not greater than 79 percent of the
14 optimal score, in which case the facility shall be given four
15 stars; at or above 40 percent, but not greater than 59 percent
16 of the optimal score, in which case the facility shall be
17 given three stars; at or above 20 percent, but not greater
18 than 39 percent of the optimal score, in which case the
19 facility shall be given two stars; or at or below 19 percent
20 of the optimal score, in which case the facility shall be
21 given one star.
22 (5) The agency shall reevaluate each nursing home
23 facility quarterly through announced and unannounced
24 inspections.
25 (6) Beginning with the second annual grading period
26 and every year thereafter, the agency shall identify each
27 nursing home facility's performance as having improved,
28 remained the same, or declined. The facility improvement
29 rating shall be based on a comparison of the current year's
30 and previous year's performance.
31
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1 (7) By July 1, 2007, and every 5 years thereafter, the
2 agency shall reevaluate the optimal standards for nursing home
3 facility quality of care and quality of life and raise the
4 standards to reflect improvements in the grading scores of
5 nursing home facilities.
6 (8) The secretary of the agency shall convene a
7 workgroup to assist the agency in developing the grading
8 system. The workgroup shall be composed of two nursing home
9 administrators whose facilities have not had a class I or
10 class II deficiency since January 1, 1999; a physician with
11 geriatric training and experience in treating nursing home
12 residents; a person with training and experience in designing
13 grading and ranking systems; a licensed risk manager with
14 experience in a nursing facility; the State Long-Term Care
15 Ombudsman; a designee of the Secretary of Elderly Affairs; a
16 quality-of-care monitor or licensure surveyor with monitoring
17 or survey experience in nursing homes; and a representative of
18 an organized group that advocates for the elderly.
19 (9) Each nursing home facility shall post, in a
20 sufficient number of prominent positions in the nursing home
21 so as to be accessible to all residents and to the public, the
22 facility's ranking and improvement ratings.
23 (10) The agency shall publish the ranking and
24 improvement rating of all nursing home facilities on the
25 agency's website and in printed guides by region of the state.
26 (11) The agency may adopt rules necessary to
27 administer this section.
28 Section 19. Section 400.275, Florida Statutes, is
29 created to read:
30 400.275 Nursing home survey teams; agency duties.--
31
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1 (1) The agency shall ensure that each newly hired
2 nursing home surveyor, as a part of basic training, is
3 assigned full-time to a licensed nursing home for at least 2
4 days within a 7-day period to observe facility operations
5 outside of the survey process before the surveyor begins
6 survey responsibilities. The agency may not assign an
7 individual to be a member of a survey team for purposes of a
8 survey, evaluation, or consultation visit at a nursing home
9 facility in which the surveyor was an employee within the
10 preceding 5 years.
11 (2) The agency shall semiannually provide for joint
12 training of nursing home surveyors and staff of facilities
13 licensed under this part on at least one of the 10 federal
14 citations that were most frequently issued against nursing
15 facilities in this state during the previous calendar year.
16 (3) Each member of a nursing home survey team who is a
17 health professional licensed under part I of chapter 464, part
18 X of chapter 468, or chapter 491, shall earn not less than 50
19 percent of required continuing education credits in geriatric
20 care. Each member of a nursing home survey team who is a
21 health professional licensed under chapter 465 shall earn not
22 less than 30 percent of required continuing education credits
23 in geriatric care.
24 (4) The agency must ensure that when a deficiency is
25 related to substandard quality of care, a physician with
26 geriatric experience licensed under chapter 458 or chapter 459
27 or a registered nurse with geriatric experience licensed under
28 chapter 464 participates in the agency's informal dispute
29 resolution process.
30 Section 20. Section 400.402, Florida Statutes, is
31 amended to read:
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1 400.402 Definitions.--When used in this part, the
2 term:
3 (1) "Activities of daily living" means functions and
4 tasks for self-care, including ambulation, bathing, dressing,
5 eating, grooming, and toileting, and other similar tasks.
6 (2) "Administrator" means an individual at least 21
7 years of age who is responsible for the operation and
8 maintenance of an assisted living facility.
9 (3) "Agency" means the Agency for Health Care
10 Administration.
11 (4) "Aging in place" or "age in place" means the
12 process of providing increased or adjusted services to a
13 person to compensate for the physical or mental decline that
14 may occur with the aging process, in order to maximize the
15 person's dignity and independence and permit them to remain in
16 a familiar, noninstitutional, residential environment for as
17 long as possible. Such services may be provided by facility
18 staff, volunteers, family, or friends, or through contractual
19 arrangements with a third party.
20 (5) "Applicant" means an individual owner,
21 corporation, partnership, firm, association, or governmental
22 entity that applies for a license.
23 (6) "Assisted living facility" means any building or
24 buildings, section or distinct part of a building, private
25 home, boarding home, home for the aged, or other residential
26 facility, whether operated for profit or not, which undertakes
27 through its ownership or management to provide housing, meals,
28 and one or more personal services for a period exceeding 24
29 hours to one or more adults who are not relatives of the owner
30 or administrator.
31
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1 (7) "Chemical restraint" means a pharmacologic drug
2 that physically limits, restricts, or deprives an individual
3 of movement or mobility, and is used for discipline or
4 convenience and not required for the treatment of medical
5 symptoms.
6 (8) "Community living support plan" means a written
7 document prepared by a mental health resident and the
8 resident's mental health case manager in consultation with the
9 administrator of an assisted living facility with a limited
10 mental health license or the administrator's designee. A copy
11 must be provided to the administrator. The plan must include
12 information about the supports, services, and special needs of
13 the resident which enable the resident to live in the assisted
14 living facility and a method by which facility staff can
15 recognize and respond to the signs and symptoms particular to
16 that resident which indicate the need for professional
17 services.
18 (9) "Cooperative agreement" means a written statement
19 of understanding between a mental health care provider and the
20 administrator of the assisted living facility with a limited
21 mental health license in which a mental health resident is
22 living. The agreement must specify directions for accessing
23 emergency and after-hours care for the mental health resident.
24 A single cooperative agreement may service all mental health
25 residents who are clients of the same mental health care
26 provider.
27 (10) "Department" means the Department of Elderly
28 Affairs.
29 (11) "Emergency" means a situation, physical
30 condition, or method of operation which presents imminent
31
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1 danger of death or serious physical or mental harm to facility
2 residents.
3 (12) "Extended congregate care" means acts beyond
4 those authorized in subsection (16) (17) that may be performed
5 pursuant to part I of chapter 464 by persons licensed
6 thereunder while carrying out their professional duties, and
7 other supportive services which may be specified by rule. The
8 purpose of such services is to enable residents to age in
9 place in a residential environment despite mental or physical
10 limitations that might otherwise disqualify them from
11 residency in a facility licensed under this part.
12 (13) "Guardian" means a person to whom the law has
13 entrusted the custody and control of the person or property,
14 or both, of a person who has been legally adjudged
15 incapacitated.
16 (14) "Limited nursing services" means acts that may be
17 performed pursuant to part I of chapter 464 by persons
18 licensed thereunder while carrying out their professional
19 duties but limited to those acts which the department
20 specifies by rule. Acts which may be specified by rule as
21 allowable limited nursing services shall be for persons who
22 meet the admission criteria established by the department for
23 assisted living facilities and shall not be complex enough to
24 require 24-hour nursing supervision and may include such
25 services as the application and care of routine dressings, and
26 care of casts, braces, and splints.
27 (15) "Managed risk" means the process by which the
28 facility staff discuss the service plan and the needs of the
29 resident with the resident and, if applicable, the resident's
30 representative or designee or the resident's surrogate,
31 guardian, or attorney in fact, in such a way that the
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1 consequences of a decision, including any inherent risk, are
2 explained to all parties and reviewed periodically in
3 conjunction with the service plan, taking into account changes
4 in the resident's status and the ability of the facility to
5 respond accordingly.
6 (15)(16) "Mental health resident" means an individual
7 who receives social security disability income due to a mental
8 disorder as determined by the Social Security Administration
9 or receives supplemental security income due to a mental
10 disorder as determined by the Social Security Administration
11 and receives optional state supplementation.
12 (16)(17) "Personal services" means direct physical
13 assistance with or supervision of the activities of daily
14 living and the self-administration of medication and other
15 similar services which the department may define by rule.
16 "Personal services" shall not be construed to mean the
17 provision of medical, nursing, dental, or mental health
18 services.
19 (17)(18) "Physical restraint" means a device which
20 physically limits, restricts, or deprives an individual of
21 movement or mobility, including, but not limited to, a
22 half-bed rail, a full-bed rail, a geriatric chair, and a posey
23 restraint. The term "physical restraint" shall also include
24 any device which was not specifically manufactured as a
25 restraint but which has been altered, arranged, or otherwise
26 used for this purpose. The term shall not include bandage
27 material used for the purpose of binding a wound or injury.
28 (18)(19) "Relative" means an individual who is the
29 father, mother, stepfather, stepmother, son, daughter,
30 brother, sister, grandmother, grandfather, great-grandmother,
31 great-grandfather, grandson, granddaughter, uncle, aunt, first
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1 cousin, nephew, niece, husband, wife, father-in-law,
2 mother-in-law, son-in-law, daughter-in-law, brother-in-law,
3 sister-in-law, stepson, stepdaughter, stepbrother, stepsister,
4 half brother, or half sister of an owner or administrator.
5 (19)(20) "Resident" means a person 18 years of age or
6 older, residing in and receiving care from a facility.
7 (20)(21) "Resident's representative or designee" means
8 a person other than the owner, or an agent or employee of the
9 facility, designated in writing by the resident, if legally
10 competent, to receive notice of changes in the contract
11 executed pursuant to s. 400.424; to receive notice of and to
12 participate in meetings between the resident and the facility
13 owner, administrator, or staff concerning the rights of the
14 resident; to assist the resident in contacting the ombudsman
15 council if the resident has a complaint against the facility;
16 or to bring legal action on behalf of the resident pursuant to
17 s. 400.429.
18 (21)(22) "Service plan" means a written plan,
19 developed and agreed upon by the resident and, if applicable,
20 the resident's representative or designee or the resident's
21 surrogate, guardian, or attorney in fact, if any, and the
22 administrator or designee representing the facility, which
23 addresses the unique physical and psychosocial needs,
24 abilities, and personal preferences of each resident receiving
25 extended congregate care services. The plan shall include a
26 brief written description, in easily understood language, of
27 what services shall be provided, who shall provide the
28 services, when the services shall be rendered, and the
29 purposes and benefits of the services.
30 (22)(23) "Shared responsibility" means exploring the
31 options available to a resident within a facility and the
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1 risks involved with each option when making decisions
2 pertaining to the resident's abilities, preferences, and
3 service needs, thereby enabling the resident and, if
4 applicable, the resident's representative or designee, or the
5 resident's surrogate, guardian, or attorney in fact, and the
6 facility to develop a service plan which best meets the
7 resident's needs and seeks to improve the resident's quality
8 of life.
9 (23)(24) "Supervision" means reminding residents to
10 engage in activities of daily living and the
11 self-administration of medication, and, when necessary,
12 observing or providing verbal cuing to residents while they
13 perform these activities.
14 (24)(25) "Supplemental security income," Title XVI of
15 the Social Security Act, means a program through which the
16 Federal Government guarantees a minimum monthly income to
17 every person who is age 65 or older, or disabled, or blind and
18 meets the income and asset requirements.
19 (25)(26) "Supportive services" means services designed
20 to encourage and assist aged persons or adults with
21 disabilities to remain in the least restrictive living
22 environment and to maintain their independence as long as
23 possible.
24 (26)(27) "Twenty-four-hour nursing supervision" means
25 services that are ordered by a physician for a resident whose
26 condition requires the supervision of a physician and
27 continued monitoring of vital signs and physical status. Such
28 services shall be: medically complex enough to require
29 constant supervision, assessment, planning, or intervention by
30 a nurse; required to be performed by or under the direct
31 supervision of licensed nursing personnel or other
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1 professional personnel for safe and effective performance;
2 required on a daily basis; and consistent with the nature and
3 severity of the resident's condition or the disease state or
4 stage.
5 Section 21. Subsections (3) and (4) of section
6 400.407, Florida Statutes, are amended to read:
7 400.407 License required; fee, display.--
8 (3) Any license granted by the agency must state the
9 maximum resident capacity of the facility, the type of care
10 for which the license is granted, the date the license is
11 issued, the expiration date of the license, and any other
12 information deemed necessary by the agency. Licenses shall be
13 issued for one or more of the following categories of care:
14 standard, extended congregate care, limited nursing services,
15 or limited mental health.
16 (a) A standard license shall be issued to facilities
17 providing one or more of the personal services identified in
18 s. 400.402. Such facilities may also employ or contract with a
19 person licensed under part I of chapter 464 to administer
20 medications and perform other tasks as specified in s.
21 400.4255.
22 (b) An extended congregate care license shall be
23 issued to facilities providing, directly or through contract,
24 services beyond those authorized in paragraph (a), including
25 acts performed pursuant to part I of chapter 464 by persons
26 licensed thereunder, and supportive services defined by rule
27 to persons who otherwise would be disqualified from continued
28 residence in a facility licensed under this part.
29 1. In order for extended congregate care services to
30 be provided in a facility licensed under this part, the agency
31 must first determine that all requirements established in law
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1 and rule are met and must specifically designate, on the
2 facility's license, that such services may be provided and
3 whether the designation applies to all or part of a facility.
4 Such designation may be made at the time of initial licensure
5 or biennial relicensure, or upon request in writing by a
6 licensee under this part. Notification of approval or denial
7 of such request shall be made within 90 days after receipt of
8 such request and all necessary documentation. Existing
9 facilities qualifying to provide extended congregate care
10 services must have maintained a standard license and may not
11 have been subject to administrative sanctions during the
12 previous 2 years, or since initial licensure if the facility
13 has been licensed for less than 2 years, for any of the
14 following reasons:
15 a. A class I or class II violation;
16 b. Three or more repeat or recurring class III
17 violations of identical or similar resident care standards as
18 specified in rule from which a pattern of noncompliance is
19 found by the agency;
20 c. Three or more class III violations that were not
21 corrected in accordance with the corrective action plan
22 approved by the agency;
23 d. Violation of resident care standards resulting in a
24 requirement to employ the services of a consultant pharmacist
25 or consultant dietitian;
26 e. Denial, suspension, or revocation of a license for
27 another facility under this part in which the applicant for an
28 extended congregate care license has at least 25 percent
29 ownership interest; or
30 f. Imposition of a moratorium on admissions or
31 initiation of injunctive proceedings.
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1 2. Facilities that are licensed to provide extended
2 congregate care services shall maintain a written progress
3 report on each person who receives such services, which report
4 describes the type, amount, duration, scope, and outcome of
5 services that are rendered and the general status of the
6 resident's health. A registered nurse, or appropriate
7 designee, representing the agency shall visit such facilities
8 at least quarterly two times a year to monitor residents who
9 are receiving extended congregate care services and to
10 determine if the facility is in compliance with this part and
11 with rules that relate to extended congregate care. One of
12 these visits may be in conjunction with the regular biennial
13 survey. The monitoring visits may be provided through
14 contractual arrangements with appropriate community agencies.
15 A registered nurse shall serve as part of the team that
16 biennially inspects such facility. The agency may waive one of
17 the required yearly monitoring visits for a facility that has
18 been licensed for at least 24 months to provide extended
19 congregate care services, if, during the biennial inspection,
20 the registered nurse determines that extended congregate care
21 services are being provided appropriately, and if the facility
22 has no class I or class II violations and no uncorrected class
23 III violations. Before such decision is made, the agency shall
24 consult with the long-term care ombudsman council for the area
25 in which the facility is located to determine if any
26 complaints have been made and substantiated about the quality
27 of services or care. The agency may not waive one of the
28 required yearly monitoring visits if complaints have been made
29 and substantiated.
30 3. Facilities that are licensed to provide extended
31 congregate care services shall:
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1 a. Demonstrate the capability to meet unanticipated
2 resident service needs.
3 b. Offer a physical environment that promotes a
4 homelike setting, provides for resident privacy, promotes
5 resident independence, and allows sufficient congregate space
6 as defined by rule.
7 c. Have sufficient staff available, taking into
8 account the physical plant and firesafety features of the
9 building, to assist with the evacuation of residents in an
10 emergency, as necessary.
11 d. Adopt and follow policies and procedures that
12 maximize resident independence, dignity, choice, and
13 decisionmaking to permit residents to age in place to the
14 extent possible, so that moves due to changes in functional
15 status are minimized or avoided.
16 e. Allow residents or, if applicable, a resident's
17 representative, designee, surrogate, guardian, or attorney in
18 fact to make a variety of personal choices, participate in
19 developing service plans, and share responsibility in
20 decisionmaking.
21 f. Implement the concept of managed risk.
22 g. Provide, either directly or through contract, the
23 services of a person licensed pursuant to part I of chapter
24 464.
25 h. In addition to the training mandated in s. 400.452,
26 provide specialized training as defined by rule for facility
27 staff.
28 4. Facilities licensed to provide extended congregate
29 care services are exempt from the criteria for continued
30 residency as set forth in rules adopted under s. 400.441.
31 Facilities so licensed shall adopt their own requirements
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1 within guidelines for continued residency set forth by the
2 department in rule. However, such facilities may not serve
3 residents who require 24-hour nursing supervision. Facilities
4 licensed to provide extended congregate care services shall
5 provide each resident with a written copy of facility policies
6 governing admission and retention.
7 5. The primary purpose of extended congregate care
8 services is to allow residents, as they become more impaired,
9 the option of remaining in a familiar setting from which they
10 would otherwise be disqualified for continued residency. A
11 facility licensed to provide extended congregate care services
12 may also admit an individual who exceeds the admission
13 criteria for a facility with a standard license, if the
14 individual is determined appropriate for admission to the
15 extended congregate care facility.
16 6. Before admission of an individual to a facility
17 licensed to provide extended congregate care services, the
18 individual must undergo a medical examination as provided in
19 s. 400.426(4) and the facility must develop a preliminary
20 service plan for the individual.
21 7. When a facility can no longer provide or arrange
22 for services in accordance with the resident's service plan
23 and needs and the facility's policy, the facility shall make
24 arrangements for relocating the person in accordance with s.
25 400.428(1)(k).
26 8. Failure to provide extended congregate care
27 services may result in denial of extended congregate care
28 license renewal.
29 9. No later than January 1 of each year, the
30 department, in consultation with the agency, shall prepare and
31 submit to the Governor, the President of the Senate, the
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1 Speaker of the House of Representatives, and the chairs of
2 appropriate legislative committees, a report on the status of,
3 and recommendations related to, extended congregate care
4 services. The status report must include, but need not be
5 limited to, the following information:
6 a. A description of the facilities licensed to provide
7 such services, including total number of beds licensed under
8 this part.
9 b. The number and characteristics of residents
10 receiving such services.
11 c. The types of services rendered that could not be
12 provided through a standard license.
13 d. An analysis of deficiencies cited during licensure
14 biennial inspections.
15 e. The number of residents who required extended
16 congregate care services at admission and the source of
17 admission.
18 f. Recommendations for statutory or regulatory
19 changes.
20 g. The availability of extended congregate care to
21 state clients residing in facilities licensed under this part
22 and in need of additional services, and recommendations for
23 appropriations to subsidize extended congregate care services
24 for such persons.
25 h. Such other information as the department considers
26 appropriate.
27 (c) A limited nursing services license shall be issued
28 to a facility that provides services beyond those authorized
29 in paragraph (a) and as specified in this paragraph.
30 1. In order for limited nursing services to be
31 provided in a facility licensed under this part, the agency
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1 must first determine that all requirements established in law
2 and rule are met and must specifically designate, on the
3 facility's license, that such services may be provided. Such
4 designation may be made at the time of initial licensure or
5 biennial relicensure, or upon request in writing by a licensee
6 under this part. Notification of approval or denial of such
7 request shall be made within 90 days after receipt of such
8 request and all necessary documentation. Existing facilities
9 qualifying to provide limited nursing services shall have
10 maintained a standard license and may not have been subject to
11 administrative sanctions that affect the health, safety, and
12 welfare of residents for the previous 2 years or since initial
13 licensure if the facility has been licensed for less than 2
14 years.
15 2. Facilities that are licensed to provide limited
16 nursing services shall maintain a written progress report on
17 each person who receives such nursing services, which report
18 describes the type, amount, duration, scope, and outcome of
19 services that are rendered and the general status of the
20 resident's health. A registered nurse representing the agency
21 shall visit such facilities at least twice once a year to
22 monitor residents who are receiving limited nursing services
23 and to determine if the facility is in compliance with
24 applicable provisions of this part and with related rules. The
25 monitoring visits may be provided through contractual
26 arrangements with appropriate community agencies. A
27 registered nurse shall also serve as part of the team that
28 biennially inspects such facility.
29 3. A person who receives limited nursing services
30 under this part must meet the admission criteria established
31 by the agency for assisted living facilities. When a resident
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1 no longer meets the admission criteria for a facility licensed
2 under this part, arrangements for relocating the person shall
3 be made in accordance with s. 400.428(1)(k), unless the
4 facility is licensed to provide extended congregate care
5 services.
6 (4)(a) Each facility shall be assessed a bed fee of
7 $100 for each initial, renewal, and change-of-ownership
8 application processed, except that a bed fee may not be
9 assessed for any bed designated for recipients of optional
10 state supplementation payments. The fee for processing an
11 application, as described in this part, may not exceed
12 $10,000. The biennial license fee required of a facility is
13 $240 per license, with an additional fee of $30 per resident
14 based on the total licensed resident capacity of the facility,
15 except that no additional fee will be assessed for beds
16 designated for recipients of optional state supplementation
17 payments provided for in s. 409.212. The total fee may not
18 exceed $10,000, no part of which shall be returned to the
19 facility. The agency shall adjust the per bed license fee and
20 the total licensure fee annually by not more than the change
21 in the consumer price index based on the 12 months immediately
22 preceding the increase.
23 (b) In addition to the total fee assessed under
24 paragraph (a), the agency shall require facilities that are
25 licensed to provide extended congregate care services under
26 this part to pay an additional fee per licensed facility. The
27 amount of the biennial fee shall be $400 per license, no part
28 of which shall be returned to the facility. The agency may
29 adjust the annual license fee once each year by not more than
30 the average rate of inflation for the 12 months immediately
31 preceding the increase.
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1 (c) In addition to the total fee assessed under
2 paragraph (a), the agency shall require facilities that are
3 licensed to provide limited nursing services under this part
4 to pay an additional fee per licensed facility. The amount of
5 the biennial fee shall be $200 per license, with an additional
6 fee of $10 per resident based on the total licensed resident
7 capacity of the facility. The total biennial fee may not
8 exceed $2,000, no part of which shall be returned to the
9 facility. The agency may adjust the $200 biennial license fee
10 and the maximum total license fee once each year by not more
11 than the average rate of inflation for the 12 months
12 immediately preceding the increase.
13 Section 22. Paragraph (n) is added to subsection (1)
14 of section 400.414, Florida Statutes, and subsection (8) is
15 added to said section, to read:
16 400.414 Denial, revocation, or suspension of license;
17 imposition of administrative fine; grounds.--
18 (1) The agency may deny, revoke, or suspend any
19 license issued under this part, or impose an administrative
20 fine in the manner provided in chapter 120, for any of the
21 following actions by an assisted living facility, any person
22 subject to level 2 background screening under s. 400.4174, or
23 any facility employee:
24 (n) Any act constituting a ground upon which
25 application for a license may be denied.
26
27 Administrative proceedings challenging agency action under
28 this subsection shall be reviewed on the basis of the facts
29 and conditions that resulted in the agency action.
30
31
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1 (8) The agency may issue a temporary license pending
2 final disposition of a proceeding involving the suspension or
3 revocation of an assisted living facility license.
4 Section 23. Subsections (1) and (6) of section
5 400.417, Florida Statutes, are amended to read:
6 400.417 Expiration of license; renewal; conditional
7 license.--
8 (1) A standard license Biennial licenses, unless
9 sooner suspended or revoked, shall expire 2 years from the
10 date of issuance. Limited nursing, extended congregate care,
11 and limited mental health licenses shall expire 1 year after
12 the date of issuance at the same time as the facility's
13 standard license, regardless of when issued. The agency shall
14 notify the facility by certified mail at least 120 days prior
15 to expiration that a renewal license is necessary to continue
16 operation. Ninety days prior to the expiration date, an
17 application for renewal shall be submitted to the agency. Fees
18 must be prorated. The failure to file a timely renewal
19 application shall result in a late fee charged to the facility
20 in an amount equal to 50 percent of the current fee.
21 (6) When an extended care or limited nursing license
22 is requested during a facility's biennial license period, the
23 fee shall be prorated in order to permit the additional
24 license to expire at the end of the biennial license period.
25 The fee shall be calculated as of the date the additional
26 license application is received by the agency.
27 Section 24. Section 400.419, Florida Statutes, is
28 amended to read:
29 400.419 Violations; administrative fines.--
30 (1) Each violation of this part and adopted rules
31 shall be classified according to the nature of the violation
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1 and the gravity of its probable effect on facility residents.
2 The agency shall indicate the classification on the written
3 notice of the violation as follows:
4 (a) Class "I" violations are those conditions or
5 occurrences related to the operation and maintenance of a
6 facility or to the personal care of residents which the agency
7 determines present an imminent danger to the residents or
8 guests of the facility or a substantial probability that death
9 or serious physical or emotional harm would result therefrom.
10 The condition or practice constituting a class I violation
11 shall be abated or eliminated within 24 hours, unless a fixed
12 period, as determined by the agency, is required for
13 correction. A class I violation is subject to an
14 administrative fine in an amount not less than $5,000 $1,000
15 and not exceeding $10,000 for each violation. A fine may be
16 levied notwithstanding the correction of the violation.
17 (b) Class "II" violations are those conditions or
18 occurrences related to the operation and maintenance of a
19 facility or to the personal care of residents which the agency
20 determines directly threaten the physical or emotional health,
21 safety, or security of the facility residents, other than
22 class I violations. A class II violation is subject to an
23 administrative fine in an amount not less than $1,000 $500 and
24 not exceeding $5,000 for each violation. A citation for a
25 class II violation must shall specify the time within which
26 the violation is required to be corrected. If a class II
27 violation is corrected within the time specified, no fine may
28 be imposed, unless it is a repeated offense.
29 (c) Class "III" violations are those conditions or
30 occurrences related to the operation and maintenance of a
31 facility or to the personal care of residents which the agency
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1 determines indirectly or potentially threaten the physical or
2 emotional health, safety, or security of facility residents,
3 other than class I or class II violations. A class III
4 violation is subject to an administrative fine of not less
5 than $500 $100 and not exceeding $1,000 for each violation. A
6 citation for a class III violation must shall specify the time
7 within which the violation is required to be corrected. If a
8 class III violation is corrected within the time specified, no
9 fine may be imposed, unless it is a repeated offense.
10 (d) Class "IV" violations are those conditions or
11 occurrences related to the operation and maintenance of a
12 building or to required reports, forms, or documents that do
13 not have the potential of negatively affecting residents.
14 These violations are of a type that the agency determines do
15 not threaten the health, safety, or security of residents of
16 the facility. A facility that does not correct a class IV
17 violation within the time specified in the agency-approved
18 corrective action plan is subject to an administrative fine of
19 not less than $100 $50 nor more than $200 for each violation.
20 Any class IV violation that is corrected during the time an
21 agency survey is being conducted will be identified as an
22 agency finding and not as a violation.
23 (2) The agency may set and levy a fine not to exceed
24 $1,000 for each violation which cannot be classified according
25 to subsection (1). Such fines in the aggregate may not exceed
26 $10,000 per survey.
27 (2)(3) In determining if a penalty is to be imposed
28 and in fixing the amount of the fine, the agency shall
29 consider the following factors:
30 (a) The gravity of the violation, including the
31 probability that death or serious physical or emotional harm
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1 to a resident will result or has resulted, the severity of the
2 action or potential harm, and the extent to which the
3 provisions of the applicable laws or rules were violated.
4 (b) Actions taken by the owner or administrator to
5 correct violations.
6 (c) Any previous violations.
7 (d) The financial benefit to the facility of
8 committing or continuing the violation.
9 (e) The licensed capacity of the facility.
10 (3)(4) Each day of continuing violation after the date
11 fixed for termination of the violation, as ordered by the
12 agency, constitutes an additional, separate, and distinct
13 violation.
14 (4)(5) Any action taken to correct a violation shall
15 be documented in writing by the owner or administrator of the
16 facility and verified through followup visits by agency
17 personnel. The agency may impose a fine and, in the case of an
18 owner-operated facility, revoke or deny a facility's license
19 when a facility administrator fraudulently misrepresents
20 action taken to correct a violation.
21 (5)(6) For fines that are upheld following
22 administrative or judicial review, the violator shall pay the
23 fine, plus interest at the rate as specified in s. 55.03, for
24 each day beyond the date set by the agency for payment of the
25 fine.
26 (6)(7) Any unlicensed facility that continues to
27 operate after agency notification is subject to a $1,000 fine
28 per day. Each day beyond 5 working days after agency
29 notification constitutes a separate violation, and the
30 facility is subject to a fine of $500 per day.
31
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1 (7)(8) Any licensed facility whose owner or
2 administrator concurrently operates an unlicensed facility
3 shall be subject to an administrative fine of $5,000 per day.
4 Each day that the unlicensed facility continues to operate
5 beyond 5 working days after agency notification constitutes a
6 separate violation, and the licensed facility shall be subject
7 to a fine of $500 per day retroactive to the date of agency
8 notification.
9 (8)(9) Any facility whose owner fails to apply for a
10 change-of-ownership license in accordance with s. 400.412 and
11 operates the facility under the new ownership is subject to a
12 fine of not to exceed $5,000.
13 (9)(10) In addition to any administrative fines
14 imposed, the agency may assess a survey fee, equal to the
15 lesser of one half of the facility's biennial license and bed
16 fee or $500, to cover the cost of conducting initial complaint
17 investigations that result in the finding of a violation that
18 was the subject of the complaint or monitoring visits
19 conducted under s. 400.428(3)(c) to verify the correction of
20 the violations.
21 (10)(11) The agency, as an alternative to or in
22 conjunction with an administrative action against a facility
23 for violations of this part and adopted rules, shall make a
24 reasonable attempt to discuss each violation and recommended
25 corrective action with the owner or administrator of the
26 facility, prior to written notification. The agency, instead
27 of fixing a period within which the facility shall enter into
28 compliance with standards, may request a plan of corrective
29 action from the facility which demonstrates a good faith
30 effort to remedy each violation by a specific date, subject to
31 the approval of the agency.
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1 (11)(12) Administrative fines paid by any facility
2 under this section shall be deposited into the Health Care
3 Trust Fund and expended as provided in s. 400.418.
4 (12)(13) The agency shall develop and disseminate an
5 annual list of all facilities sanctioned or fined $5,000 or
6 more for violations of state standards, the number and class
7 of violations involved, the penalties imposed, and the current
8 status of cases. The list shall be disseminated, at no charge,
9 to the Department of Elderly Affairs, the Department of
10 Health, the Department of Children and Family Services, the
11 area agencies on aging, the Florida Statewide Advocacy
12 Council, and the state and local ombudsman councils. The
13 Department of Children and Family Services shall disseminate
14 the list to service providers under contract to the department
15 who are responsible for referring persons to a facility for
16 residency. The agency may charge a fee commensurate with the
17 cost of printing and postage to other interested parties
18 requesting a copy of this list.
19 Section 25. Section 400.423, Florida Statutes, is
20 created to read:
21 400.423 Internal risk management and quality assurance
22 program.--
23 (1) Each facility with a minimum of 26 beds shall, as
24 part of its administrative functions, establish an internal
25 risk management and quality assurance program, the purpose of
26 which is to assess resident care practices; review facility
27 quality indicators, facility incident reports, deficiencies
28 cited by the agency, individual resident shared-risk
29 agreements as defined in s. 400.402, and resident grievances;
30 and develop plans of action to correct and respond quickly to
31 identified quality deficiencies. The program must include:
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1 (a) A risk manager employed by the facility and
2 licensed under chapter 395 who is responsible for
3 implementation and oversight of the facility's internal risk
4 management and quality assurance program as required by this
5 section. A risk manager must not be made responsible for more
6 than four internal risk management and quality assurance
7 programs in separate facilities licensed pursuant to chapter
8 400 or chapter 395. However, a risk manager may be made
9 responsible for as many as eight assisted living facilities
10 with a standard license if the risk manager is not responsible
11 for any other facilities licensed under this chapter or
12 chapter 395.
13 (b) A risk management and quality assurance committee
14 consisting of the facility risk manager, the administrator,
15 and at least three other members of the facility staff. The
16 risk management and quality assurance committee shall meet at
17 least monthly.
18 (c) Policies and procedures to implement the internal
19 risk management and quality assurance program, which must
20 include the investigation and analysis of the frequency and
21 causes of general categories and specific types of adverse
22 incidents to residents.
23 (d) The development of appropriate measures to
24 minimize the risk of adverse incidents to residents,
25 including, but not limited to, education and training in risk
26 management and risk prevention for all nonphysician personnel,
27 as follows:
28 1. Such education and training of all nonphysician
29 personnel shall be part of their initial orientation; and
30 2. At least 3 hours of such education and training
31 shall be provided annually for all nonphysician personnel of
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1 the licensed facility working in clinical areas and providing
2 resident care.
3 (e) The analysis of resident grievances that relate to
4 resident care and the quality of clinical services.
5 (f) The development and implementation of an incident
6 reporting system based upon the affirmative duty of all health
7 care providers and all agents and employees of the facility to
8 report adverse incidents to the risk manager.
9 (2) The internal risk management and quality assurance
10 program is the responsibility of the facility administrator.
11 (3) In addition to the programs mandated by this
12 section, other innovative approaches intended to reduce the
13 frequency and severity of adverse incidents to residents and
14 violations of residents' rights shall be encouraged and their
15 implementation and operation facilitated.
16 (4) Each internal risk management and quality
17 assurance program shall include the use of incident reports to
18 be filed with the risk manager and the facility administrator.
19 The risk manager shall have free access to all resident
20 records of the facility. The incident reports are confidential
21 as provided by law, are part of the workpapers of the attorney
22 defending the facility in litigation relating to the facility,
23 and are subject to discovery but are not admissible as
24 evidence in court. As a part of each internal risk management
25 and quality assurance program, the incident reports shall be
26 used to develop categories of incidents which identify problem
27 areas. Once identified, procedures shall be adjusted to
28 correct the problem areas.
29 (5) For purposes of reporting to the agency under this
30 section, the term "adverse incident" means:
31
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1 (a) An event over which facility personnel could
2 exercise control and which is associated in whole or in part
3 with the facility's intervention, rather than the condition
4 for which such intervention occurred, and which results in one
5 of the following:
6 1. Death;
7 2. Brain or spinal damage;
8 3. Permanent disfigurement;
9 4. Fracture or dislocation of bones or joints;
10 5. A resulting limitation of neurological, physical,
11 or sensory function;
12 6. Any condition that required medical attention to
13 which the resident has not given his or her informed consent,
14 including failure to honor advanced directives; or
15 7. Any condition that required the transfer of the
16 patient, within or outside the facility, to a unit providing a
17 more acute level of care due to the adverse incident rather
18 than to the resident's condition prior to the adverse
19 incident;
20 (b) Abuse, neglect, or exploitation, as defined in s.
21 415.102 or s. 39.01;
22 (c) Resident elopement; or
23 (d) An event that is reported to law enforcement.
24 (6) Every facility, regardless of the number of beds,
25 shall notify the agency within 1 business day after the
26 occurrence of an adverse incident. The notification must be
27 made in writing and be provided by facsimile device or
28 overnight mail delivery. The notification must include
29 information regarding the identity of the affected resident,
30 the type of adverse incident, the initiation of an
31 investigation by the facility, and whether the events causing
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1 or resulting in the adverse incident represent a potential
2 risk to any other resident. The notification is confidential
3 as provided by law and is not discoverable or admissible in
4 any civil or administrative action, except in disciplinary
5 proceedings by the agency or the appropriate regulatory board.
6 The agency may investigate, as it deems appropriate, any such
7 incident and prescribe measures that must or may be taken in
8 response to the incident. The agency shall review each
9 incident and determine whether it potentially involved conduct
10 by the health care professional who is subject to disciplinary
11 action, in which case the provisions of s. 456.073 shall
12 apply.
13 (7)(a) Every facility, regardless of the number of
14 beds, shall submit an adverse incident report to the agency
15 for each adverse incident within 15 calendar days after its
16 occurrence on a form developed by the agency. The Department
17 of Elderly Affairs shall have access to such reports as it
18 deems appropriate.
19 (b) The information reported to the agency pursuant to
20 paragraph (a) which relates to persons licensed under chapter
21 458, chapter 459, chapter 461, or chapter 466 shall be
22 reviewed by the agency. The agency shall determine whether any
23 of the incidents potentially involved conduct by a health care
24 professional who is subject to disciplinary action, in which
25 case the provisions of s. 456.073 shall apply.
26 (c) The report submitted to the agency must also
27 contain the name and license number of the risk manager, if
28 applicable, of the licensed facility.
29 (d) The adverse incident report is confidential as
30 provided by law and is not discoverable or admissible in any
31
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1 civil or administrative action, except in disciplinary
2 proceedings by the agency or the appropriate regulatory board.
3 (8) Each facility subject to this section shall report
4 monthly any liability claim files against it. The report must
5 include the name of the resident, the date or dates of the
6 incident leading to the claim, and the type of injury or
7 violation of rights alleged to have occurred.
8 (9) The internal risk manager or administrator of each
9 facility shall:
10 (a) Investigate every allegation of sexual misconduct
11 which is made against a member of the facility's personnel who
12 has direct resident contact if it is alleged that the sexual
13 misconduct occurred at the facility or on the grounds of the
14 facility;
15 (b) If the allegation is investigated by the internal
16 risk manager, report the allegation of sexual misconduct to
17 the administrator of the facility; and
18 (c) Notify the resident representative or guardian of
19 the victim that an allegation of sexual misconduct has been
20 made and that an investigation is being conducted.
21 (10)(a) Any witness who witnessed or who possesses
22 actual knowledge of the act that is the basis of an allegation
23 of sexual abuse shall notify:
24 1. The local law enforcement agency;
25 2. The central abuse hotline of the Department of
26 Children and Family Services; and
27 3. The risk manager, if applicable, and the
28 administrator.
29 (b) As used in this subsection, the term "sexual
30 abuse" means acts of a sexual nature committed for the sexual
31 gratification of anyone upon, or in the presence of, a
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1 vulnerable adult, without the vulnerable adult's informed
2 consent, or a minor. The term includes, but is not limited to,
3 the acts defined in s. 794.011(1)(h), fondling, exposure of a
4 vulnerable adult's or minor's sexual organs, or the use of the
5 vulnerable adult or minor to solicit for or engage in
6 prostitution or sexual performance. The term does not include
7 any act intended for a valid medical purpose or any act that
8 may reasonably be construed to be a normal caregiving action.
9 (11) The agency shall review, as part of its licensure
10 inspection process, the internal risk management and quality
11 assurance program at each facility regulated by this section
12 to determine whether the program meets standards established
13 in statutory laws and rules, is being conducted in a manner
14 designed to reduce adverse incidents, and is appropriately
15 reporting incidents as required by this section.
16 (12) There is no monetary liability on the part of,
17 and a cause of action for damages may not arise against, any
18 risk manager licensed under chapter 395 for the implementation
19 and oversight of the internal risk management and quality
20 assurance program in a facility licensed under this part as
21 required by this section, or for any act or proceeding
22 undertaken or performed within the scope of the functions of
23 such internal risk management and quality assurance program if
24 the risk manager acts without intentional fraud.
25 (13) If the agency, through its receipt of the adverse
26 incident reports prescribed in subsection (7), or through any
27 investigation, has a reasonable belief that conduct by a staff
28 member or employee of a facility is grounds for disciplinary
29 action by the appropriate regulatory board, the agency shall
30 report this fact to the regulatory board.
31
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1 (14) The agency shall annually submit to the
2 Legislature a report on assisted living facility internal risk
3 management. The report must include the following information
4 arrayed by county:
5 (a) The total number of adverse incidents.
6 (b) A listing, by category, of the types of adverse
7 incidents, the number of incidents occurring within each
8 category, and the type of staff involved.
9 (c) A listing, by category, of the types of injury
10 caused and the number of injuries occurring within each
11 category.
12 (d) Types of liability claims filed based on an
13 adverse incident or reportable injury.
14 (e) Disciplinary action taken against staff,
15 categorized by type of staff involved.
16 Section 26. Present subsections (7), (8), (9), (10),
17 and (11) of section 400.426, Florida Statutes, are
18 redesignated as subsections (8), (9), (10), (11), and (12),
19 respectively, and a new subsection (7) is added to said
20 section, to read:
21 400.426 Appropriateness of placements; examinations of
22 residents.--
23 (7) Any resident who exhibits signs of dementia or
24 cognitive impairment must be examined by a licensed physician
25 to rule out the presence of an underlying physiological
26 condition that may be contributing to such dementia or
27 impairment. The examination must occur within 7 days after the
28 admission of a resident to the facility or within 7 days after
29 the acknowledgement of such signs by facility staff. The
30 facility must notify the resident's designee or legal
31 representative prior to the examination. If an underlying
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1 condition is determined to exist, the facility shall arrange
2 for necessary care and services to treat the condition.
3 Section 27. Subsection (3) of section 400.428, Florida
4 Statutes, is amended to read:
5 400.428 Resident bill of rights.--
6 (3)(a) The agency shall conduct a survey to determine
7 general compliance with facility standards and compliance with
8 residents' rights as a prerequisite to initial licensure or
9 licensure renewal.
10 (b) In order to determine whether the facility is
11 adequately protecting residents' rights, the licensure
12 biennial survey shall include private informal conversations
13 with a sample of residents and consultation with the ombudsman
14 council in the planning and service area in which the facility
15 is located to discuss residents' experiences within the
16 facility.
17 (c) During any calendar year in which no standard
18 licensure survey is conducted, the agency shall conduct at
19 least one monitoring visit of each facility cited in the
20 previous year for a class I or class II violation, or more
21 than three uncorrected class III violations.
22 (d) The agency may conduct periodic followup
23 inspections as necessary to monitor the compliance of
24 facilities with a history of any class I, class II, or class
25 III violations that threaten the health, safety, or security
26 of residents.
27 (e) The agency may conduct complaint investigations as
28 warranted to investigate any allegations of noncompliance with
29 requirements required under this part or rules adopted under
30 this part.
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1 Section 28. Effective October 1, 2001, and applicable
2 to causes of action accruing on or after that date, section
3 400.4303, Florida Statutes, is created to read:
4 400.4303 Copies forwarded to state attorney.--In any
5 action in which punitive damages are awarded, notwithstanding
6 any appeals, the clerk of the court shall forward to the state
7 attorney of that circuit a copy of the complaint, any amended
8 complaints, the verdict form, and the final judgment.
9 Section 29. Subsection (2) of section 400.435, Florida
10 Statutes, is amended to read:
11 400.435 Maintenance of records; reports.--
12 (2) Within 60 days after the date of a licensure the
13 biennial inspection visit or within 30 days after the date of
14 any interim visit, the agency shall forward the results of the
15 inspection to the local ombudsman council in whose planning
16 and service area, as defined in part II, the facility is
17 located; to at least one public library or, in the absence of
18 a public library, the county seat in the county in which the
19 inspected assisted living facility is located; and, when
20 appropriate, to the district Adult Services and Mental Health
21 Program Offices.
22 Section 30. Paragraph (h) of subsection (1) and
23 subsection (4) of section 400.441, Florida Statutes, are
24 amended to read:
25 400.441 Rules establishing standards.--
26 (1) It is the intent of the Legislature that rules
27 published and enforced pursuant to this section shall include
28 criteria by which a reasonable and consistent quality of
29 resident care and quality of life may be ensured and the
30 results of such resident care may be demonstrated. Such rules
31 shall also ensure a safe and sanitary environment that is
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1 residential and noninstitutional in design or nature. It is
2 further intended that reasonable efforts be made to
3 accommodate the needs and preferences of residents to enhance
4 the quality of life in a facility. In order to provide safe
5 and sanitary facilities and the highest quality of resident
6 care accommodating the needs and preferences of residents, the
7 department, in consultation with the agency, the Department of
8 Children and Family Services, and the Department of Health,
9 shall adopt rules, policies, and procedures to administer this
10 part, which must include reasonable and fair minimum standards
11 in relation to:
12 (h) The care and maintenance of residents, which must
13 include, but is not limited to:
14 1. The supervision of residents;
15 2. The provision of personal services;
16 3. The provision of, or arrangement for, social and
17 leisure activities;
18 4. The arrangement for appointments and transportation
19 to appropriate medical, dental, nursing, or mental health
20 services, as needed by residents;
21 5. The management of medication;
22 6. The nutritional needs of residents; and
23 7. Resident records; and.
24 8. Internal risk management and quality assurance.
25 (4) The agency may use an abbreviated biennial
26 standard licensure inspection that which consists of a review
27 of key quality-of-care standards in lieu of a full inspection
28 in facilities which have a good record of past performance.
29 However, a full inspection shall be conducted in facilities
30 which have had a history of class I or class II violations,
31 uncorrected class III violations, confirmed ombudsman council
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1 complaints, or confirmed licensure complaints, within the
2 previous licensure period immediately preceding the inspection
3 or when a potentially serious problem is identified during the
4 abbreviated inspection. The agency, in consultation with the
5 department, shall develop the key quality-of-care standards
6 with input from the State Long-Term Care Ombudsman Council and
7 representatives of provider groups for incorporation into its
8 rules. Beginning on or before March 1, 1991, The department,
9 in consultation with the agency, shall report annually to the
10 Legislature concerning its implementation of this subsection.
11 The report shall include, at a minimum, the key
12 quality-of-care standards which have been developed; the
13 number of facilities identified as being eligible for the
14 abbreviated inspection; the number of facilities which have
15 received the abbreviated inspection and, of those, the number
16 that were converted to full inspection; the number and type of
17 subsequent complaints received by the agency or department on
18 facilities which have had abbreviated inspections; any
19 recommendations for modification to this subsection; any plans
20 by the agency to modify its implementation of this subsection;
21 and any other information which the department believes should
22 be reported.
23 Section 31. Section 400.442, Florida Statutes, is
24 amended to read:
25 400.442 Pharmacy and dietary services.--
26 (1) Any assisted living facility in which the agency
27 has documented a class I or class II deficiency or uncorrected
28 class III deficiencies regarding medicinal drugs or
29 over-the-counter preparations, including their storage, use,
30 delivery, or administration, or dietary services, or both,
31 during a licensure biennial survey or a monitoring visit or an
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1 investigation in response to a complaint, shall, in addition
2 to or as an alternative to any penalties imposed under s.
3 400.419, be required to employ the consultant services of a
4 licensed pharmacist, a licensed registered nurse, or a
5 registered or licensed dietitian, as applicable. The
6 consultant shall, at a minimum, provide onsite quarterly
7 consultation until the inspection team from the agency
8 determines that such consultation services are no longer
9 required.
10 (2) A corrective action plan for deficiencies related
11 to assistance with the self-administration of medication or
12 the administration of medication must be developed and
13 implemented by the facility within 48 hours after notification
14 of such deficiency, or sooner if the deficiency is determined
15 by the agency to be life-threatening.
16 (3) The agency shall employ at least two pharmacists
17 licensed pursuant to chapter 465 among its personnel who
18 biennially inspect assisted living facilities licensed under
19 this part, to participate in licensure biennial inspections or
20 consult with the agency regarding deficiencies relating to
21 medicinal drugs or over-the-counter preparations.
22 (4) The department may by rule establish procedures
23 and specify documentation as necessary to administer implement
24 this section.
25 Section 32. Section 400.449, Florida Statutes, is
26 created to read:
27 400.449 Resident records; penalties for alteration.--
28 (1) Any person who fraudulently alters, defaces, or
29 falsifies any medical or other record of an assisted living
30 facility, or causes or procures any such offense to be
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1 committed, commits a misdemeanor of the second degree,
2 punishable as provided in s. 775.082 or s. 775.083.
3 (2) A conviction under subsection (1) is also grounds
4 for restriction, suspension, or termination of license
5 privileges.
6 Section 33. Subsection (1) of section 464.201, Florida
7 Statutes, is amended to read:
8 464.201 Definitions.--As used in this part, the term:
9 (1) "Approved training program" means:
10 (a) A course of training conducted by a public sector
11 or private sector educational center licensed by the
12 Department of Education to implement the basic curriculum for
13 nursing assistants which is approved by the Department of
14 Education. Beginning October 1, 2000, the board shall assume
15 responsibility for approval of training programs under this
16 paragraph.
17 (b) A training program operated under s. 400.141.
18 (c) A nursing assistant training program developed
19 under the Enterprise Florida Jobs and Education Partnership
20 Grant.
21 Section 34. Section 464.203, Florida Statutes, is
22 amended to read:
23 464.203 Certified nursing assistants; certification
24 requirement.--
25 (1) The board shall issue a certificate to practice as
26 a certified nursing assistant to any person who demonstrates a
27 minimum competency to read and write and successfully passes
28 the required Level I or Level II screening pursuant to s.
29 400.215 and meets one of the following requirements:
30 (a) Has successfully completed an approved training
31 program and achieved a minimum score, established by rule of
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1 the board, on the nursing assistant competency examination,
2 which consists of a written portion and skills-demonstration
3 portion approved by the board and administered at a site and
4 by personnel approved by the department.
5 (b) Has achieved a minimum score, established by rule
6 of the board, on the nursing assistant competency examination,
7 which consists of a written portion and skills-demonstration
8 portion, approved by the board and administered at a site and
9 by personnel approved by the department and:
10 1. Has a high school diploma, or its equivalent; or
11 2. Is at least 18 years of age.
12 (c) Is currently certified in another state; is listed
13 on that state's certified nursing assistant registry; and has
14 not been found to have committed abuse, neglect, or
15 exploitation in that state.
16 (d) Has completed the curriculum developed under the
17 Enterprise Florida Jobs and Education Partnership Grant and
18 achieved a minimum score, established by rule of the board, on
19 the nursing assistant competency examination, which consists
20 of a written portion and skills-demonstration portion,
21 approved by the board and administered at a site and by
22 personnel approved by the department.
23 (2) If an applicant fails to pass the nursing
24 assistant competency examination in three attempts, the
25 applicant is not eligible for reexamination unless the
26 applicant completes an approved training program.
27 (3) An oral examination shall be administered as a
28 substitute for the written portion of the examination upon
29 request. The oral examination shall be administered at a site
30 and by personnel approved by the department.
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1 (4) The board shall adopt rules to provide for the
2 initial certification of certified nursing assistants.
3 (5) Certification as a nursing assistant, in
4 accordance with this part, continues in effect until such time
5 as the nursing assistant allows a period of 24 consecutive
6 months to pass during which period the nursing assistant fails
7 to perform any nursing-related services for monetary
8 compensation. When a nursing assistant fails to perform any
9 nursing-related services for monetary compensation for a
10 period of 24 consecutive months, the nursing assistant must
11 complete a new training and competency evaluation program or a
12 new competency evaluation program.
13 (6)(5) A certified nursing assistant shall maintain a
14 current address with the board in accordance with s. 456.035.
15 (7) A certified nursing assistant must complete a
16 minimum of 18 hours of continuing education during each
17 calendar year of certification. Continuing education must
18 include training in assisting and responding to individuals
19 who are cognitively impaired or who exhibit difficult
20 behaviors.
21 Section 35. Subsection (2) of section 397.405, Florida
22 Statutes, is amended to read:
23 397.405 Exemptions from licensure.--The following are
24 exempt from the licensing provisions of this chapter:
25 (2) A nursing home facility as defined in s. 400.021
26 s. 400.021(12).
27
28 The exemptions from licensure in this section do not apply to
29 any facility or entity which receives an appropriation, grant,
30 or contract from the state to operate as a service provider as
31 defined in this chapter or to any substance abuse program
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1 regulated pursuant to s. 397.406. No provision of this
2 chapter shall be construed to limit the practice of a
3 physician licensed under chapter 458 or chapter 459, a
4 psychologist licensed under chapter 490, or a psychotherapist
5 licensed under chapter 491, providing outpatient or inpatient
6 substance abuse treatment to a voluntary patient, so long as
7 the physician, psychologist, or psychotherapist does not
8 represent to the public that he or she is a licensed service
9 provider under this act. Failure to comply with any
10 requirement necessary to maintain an exempt status under this
11 section is a misdemeanor of the first degree, punishable as
12 provided in s. 775.082 or s. 775.083.
13 Section 36. The Agency for Health Care Administration
14 shall require that a portion of each nursing facility's
15 Medicaid rate be used exclusively for wage and benefit
16 increases for nursing home direct care staff. Such funds shall
17 be used only for actual wage or benefit improvements. Eligible
18 staff members include all direct care workers (including RNs,
19 LPNs and CNAs), and all dietary, housekeeping, laundry, and
20 maintenance workers. Temporary, contract, agency, and pool
21 employees are excluded. The agency shall develop
22 cost-reporting systems to ensure that the funds the agency has
23 required to be used for wage and benefit increases for direct
24 care staff are used for this purpose. On January 1 of each
25 year, the agency shall report to the Legislature the effect of
26 such wage and benefit increases for employees in nursing
27 facilities in this state.
28 Section 37. The sum of $______ is appropriated from
29 the General Revenue Fund to the Agency for Health Care
30 Administration for the purpose of implementing the provisions
31 of this act during the 2001-2002 fiscal year.
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1 Section 38. The sum of $948,782 is appropriated from
2 the General Revenue Fund to the Department of Elderly Affairs
3 for the purpose of paying the salaries and other
4 administrative expenses of the Office of State Long-Term Care
5 Ombudsman to carry out the provisions of this act during the
6 2001-2002 fiscal year.
7 Section 39. If any provision of this act or its
8 application to any person or circumstance is held invalid, the
9 invalidity does not affect other provisions or applications of
10 the act which can be given effect without the invalid
11 provision or application, and to this end the provisions of
12 this act are severable.
13 Section 40. Except as otherwise provided herein, this
14 act shall take effect upon becoming a law.
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2 HOUSE SUMMARY
3
Revises provisions of parts II and III of ch. 400, F.S.,
4 relating to regulation of nursing homes and assisted
living facilities. Requires such facilities to establish
5 internal risk management and quality assurance programs.
Specifies program requirements, requires the Agency for
6 Health Care Administration to be notified of adverse
incidents, limits the liability of risk managers, and
7 requires the agency to report certain conduct to the
appropriate professional regulatory board. Requires
8 certain documents to be forwarded to the state attorney
if punitive damages are awarded. Revises nursing home and
9 assisted living facility licensure requirements, provides
additional grounds for license denial, suspension, or
10 revocation, and increases penalties for certain
deficiencies and violations. Requires quality assurance
11 and risk management plans as a condition for licensure.
Requires the agency to publish a Nursing Home Guide Watch
12 List, and specifies contents and distribution. Requires
nursing homes to permit electronic monitoring devices in
13 residents' rooms, and provides requirements and
penalties. Provides training standards for nursing home
14 staff who care for persons with Alzheimer's disease or
related disorders. Revises nursing assistant employment,
15 training, and certification requirements. Specifies
nursing home minimum staffing levels, and requirements
16 for documentation and posting. Requires the agency to
develop and implement a system for grading nursing homes,
17 providing rankings, and evaluating improvements. Requires
the agency to use certain funds for wage and benefit
18 increases for nursing home direct care staff. Provides
appropriations. See bill for details.
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