House Bill hb1879
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
        By the Committee on Elder & Long-Term Care and
    Representative Green
  1                      A bill to be entitled
  2         An act relating to long-term care; amending s.
  3         400.0073, F.S., relating to state and local
  4         ombudsman council investigations; requiring
  5         ombudsman verification and reporting of nursing
  6         home staff on duty and the posting thereof;
  7         providing penalty for refusal of a nursing home
  8         or assisted living facility to allow entry to
  9         an ombudsman; amending s. 400.021, F.S.;
10         revising definitions; defining "controlling
11         interest" and "voluntary board member";
12         creating s. 400.0223, F.S.; requiring nursing
13         homes to allow electronic monitoring of
14         residents in their rooms; requiring posting of
15         notice; providing facility requirements;
16         providing penalties; amending ss. 400.023 and
17         400.429, F.S.; providing for civil actions to
18         enforce nursing home and assisted living
19         facility residents' rights; providing who may
20         pursue such actions; providing for attorney's
21         fees and costs; providing the burden of proof;
22         providing evidence of breach of duty; providing
23         certain liability; limiting period for
24         commencement of actions; providing definitions;
25         providing for claims involving death of the
26         resident; providing for punitive damages;
27         providing nonenforceability of judgments or
28         agreements concealing certain information;
29         requiring facility report of a judgment or
30         agreement to the Agency for Health Care
31         Administration within a specified period;
                                  1
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         providing a penalty; providing agency
  2         rulemaking authority; providing applicability;
  3         creating s. 400.0235, F.S.; providing
  4         requirements of the presuit process; creating
  5         s. 400.0236, F.S.; providing for presuit
  6         screening; creating s. 400.0237, F.S.;
  7         providing for presuit notice, review, and
  8         investigation; specifying timeframes; creating
  9         ss. 400.0238 and 400.430, F.S.; providing for
10         voluntary binding arbitration; providing for
11         selection of an arbitration panel; providing
12         for compensation; providing obligations and
13         procedures; providing rulemaking authority of
14         the Division of Administrative Hearings;
15         providing for the right to jury trial and for
16         certain limitations on damages; providing
17         procedures; creating s. 400.0239, F.S.;
18         providing for binding arbitration to allocate
19         responsibility among defendants; providing
20         procedures; creating s. 400.024, F.S.;
21         providing for misarbitration; creating s.
22         400.0241, F.S.; providing for payment of an
23         arbitration award; providing for interest;
24         creating s. 400.0242, F.S.; providing for
25         appeal of an arbitration award or allocation of
26         financial responsibility; creating ss. 400.0245
27         and 400.455, F.S.; creating the "Nursing Home
28         Facility Whistleblower's Act" and the "Assisted
29         Living Facility Whistleblower's Act,"
30         respectively; prohibiting retaliatory actions
31         from a facility or independent contractor
                                  2
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         against an employee for disclosure of certain
  2         information; providing legislative intent;
  3         providing definitions; specifying the nature of
  4         information, to whom disclosed, and persons
  5         protected; authorizing civil actions for
  6         violation; providing forms of relief; providing
  7         penalties; providing reward for information
  8         disclosed; requiring facilities to post notice
  9         of protections, rewards, and remedies;
10         providing defenses to certain actions;
11         protecting existing rights of employees;
12         amending s. 400.071, F.S.; revising
13         requirements and providing additional
14         requirements for application for a nursing home
15         license; amending s. 400.102, F.S.; providing
16         additional grounds for administrative or other
17         actions against a nursing home; amending s.
18         400.118, F.S.; requiring agency staff to verify
19         and report staff on duty at a nursing home;
20         providing requirements for resident
21         comprehensive assessment, plan of care, and
22         treatment and services; providing for a
23         resident's incapacity or refusal with regard to
24         the plan of care; creating s. 400.1183, F.S.;
25         requiring nursing homes to have a grievance
26         procedure for residents; providing
27         requirements; requiring recordkeeping and
28         reports to the agency; providing for agency
29         investigations; providing a penalty for
30         noncompliance; amending s. 400.121, F.S.;
31         revising a penalty for violations of pt. II of
                                  3
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         ch. 400, F.S.; providing additional grounds for
  2         denial of a nursing home licensure application;
  3         providing for review of administrative
  4         proceedings challenging agency licensure
  5         enforcement actions; amending s. 400.141, F.S.;
  6         providing qualifications for nursing home
  7         medical directors and nursing personnel;
  8         requiring sufficient nursing staff; requiring a
  9         comprehensive resident assessment; requiring
10         daily charting of certain care delivered;
11         requiring report of management agreements;
12         requiring report of staff ratios, turnover, and
13         stability, and bed vacancies; creating s.
14         400.1413, F.S.; requiring nursing homes to
15         establish internal risk management and quality
16         assurance programs; providing requirements for
17         implementation; defining "adverse incident";
18         requiring reports to the agency; providing
19         agency access to facility records, review of
20         incidents and programs, and report to
21         regulatory boards; limiting liability of risk
22         managers; amending s. 400.1415, F.S.; providing
23         for administrative penalties or a moratorium on
24         admissions for a nursing home where alteration
25         of records has occurred; requiring reporting;
26         requiring referral of personnel for
27         disciplinary action; amending s. 400.19, F.S.;
28         providing for quarterly onsite review of
29         facilities with a conditional licensure status;
30         amending s. 400.191, F.S.; requiring facility
31         posting of the Florida Nursing Home Guide Watch
                                  4
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         List; amending s. 400.211, F.S.; revising
  2         qualifications for temporary employment of
  3         nursing assistants; providing performance
  4         review and inservice training requirements for
  5         certified nursing assistants; amending s.
  6         400.23, F.S.; deleting obsolete language and
  7         references; deleting requirement for review of
  8         local emergency management plans; providing for
  9         agency rules relating to consumer satisfaction
10         surveys, posting of reports and records, and
11         quality assurance and risk management;
12         specifying minimum nursing home staffing
13         requirements; providing a moratorium on
14         admissions for certain failure to comply with
15         minimum staffing requirements; providing a
16         penalty; revising provisions relating to
17         deficient practices and classifications
18         thereof; revising penalties; requiring a
19         report; amending s. 400.241, F.S.; providing a
20         cross reference; providing a penalty; amending
21         s. 400.407, F.S.; correcting a cross reference;
22         amending s. 400.426, F.S.; requiring a daily
23         record of care of residents; providing for
24         access to and maintenance of such records;
25         amending ss. 400.428 and 400.431, F.S.;
26         revising requirement for notice of a resident's
27         relocation or termination from a facility;
28         providing a penalty; creating s. 400.449, F.S.;
29         providing penalties for altering, defacing, or
30         falsifying records of an assisted living
31         facility; amending s. 409.908, F.S.; revising
                                  5
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         provisions relating to Medicaid reimbursement
  2         for long-term care; providing for direct care
  3         and indirect care subcomponents; providing for
  4         cost reporting; amending s. 415.1111, F.S.;
  5         providing that provisions for civil actions
  6         under ch. 415, F.S., shall not apply to civil
  7         actions under pts. II and III of ch. 400, F.S.;
  8         amending s. 430.708, F.S.; deleting a provision
  9         relating to certificate-of-need calculations
10         for nursing home beds pursuant to Medicaid
11         community diversion pilot projects; amending s.
12         430.709, F.S.; providing requirements for
13         contracts for independent evaluation of
14         long-term care community diversion projects;
15         transferring responsibility from the Department
16         of Elderly Affairs to the agency; requiring
17         reports to the agency and Legislature; amending
18         s. 435.04, F.S.; deleting obsolete language;
19         amending s. 464.201, F.S.; revising definition
20         of "approved training program" for nursing
21         assistants; amending s. 464.2085, F.S.;
22         directing the Council on Certified Nursing
23         Assistants to develop advanced competency
24         designations for certified nursing assistants;
25         amending ss. 101.655, 397.405, and 400.0069,
26         F.S.; correcting cross references; requiring
27         the Auditor General develop a standard chart of
28         accounts for Medicaid long-term care provider
29         cost reporting; requiring implementation by the
30         agency by a specified date; requiring the
31         agency to amend the Medicaid Title XIX
                                  6
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         Long-Term Care Reimbursement Plan to include
  2         specified provisions; directing the Board of
  3         Nursing to provide for commendation of certain
  4         professional nurses; requiring wage and benefit
  5         increases for nursing home direct care staff;
  6         requiring a report; reenacting s. 400.021(11),
  7         F.S., relating to the definition of "nursing
  8         home bed"; reenacting s. 400.0225, F.S.,
  9         relating to consumer satisfaction surveys;
10         reenacting s. 400.0255(3) and (8), F.S.,
11         relating to discharge or transfer of residents;
12         reenacting s. 400.141(4) and (5), F.S.,
13         relating to the repackaging of residents'
14         medication and access to other health-related
15         services; reenacting s. 400.191(2) and (6),
16         F.S., relating to requirements for providing
17         information to consumers; reenacting s.
18         400.23(5), F.S., relating to rules for
19         standards of care for persons under 21 years of
20         age residing in nursing home facilities;
21         reenacting s. 400.235(3)(a), (4), (5)(e), and
22         (9), F.S., and reenacting the repeal of s.
23         400.235(5)(h), F.S., 1999, relating to
24         designation under the nursing home Gold Seal
25         Program; reenacting s. 400.962(1), F.S.,
26         relating to requirement for licensure under pt.
27         XI of ch. 400, F.S.; reenacting s. 397.405(2),
28         F.S., relating to a cross reference; reenacting
29         s. 10 of ch. 2000-350, Laws of Florida,
30         relating to requirements for a study of the use
31         of automated medication dispensing machines in
                                  7
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         nursing facilities and for demonstration
  2         projects and a report; providing legislative
  3         intent; providing appropriations; providing
  4         effective dates.
  5
  6  Be It Enacted by the Legislature of the State of Florida:
  7
  8         Section 1.  Present subsection (6) of section 400.0073,
  9  Florida Statutes, is amended, present subsections (5) and (6)
10  are renumbered as subsections (7) and (8), respectively, and
11  new subsections (5) and (6) are added to said section, to
12  read:
13         400.0073  State and local ombudsman council
14  investigations.--
15         (5)  Each time a member of an ombudsman council is in a
16  nursing home facility to investigate a resident's complaint or
17  to conduct an inspection, the ombudsman shall verify, record,
18  and report to the Office of the State Long-Term Care Ombudsman
19  the number of certified nursing assistants, the number of
20  licensed practical nurses, and the number of registered nurses
21  on duty, the date and time of the visit, and the facility
22  census at that time. The Office of the State Long-Term Care
23  Ombudsman shall maintain a record of each such ombudsman
24  report in a database, which record shall be reported to the
25  Legislature quarterly beginning on October 1, 2001.
26         (6)  Each time a member of an ombudsman council is in a
27  nursing home facility, the ombudsman shall determine whether
28  the facility is in compliance with s. 400.23(3)(a) relating to
29  daily posting of staff on duty. The ombudsman shall
30  immediately report to the agency failure by the nursing home
31  to comply with this requirement.
                                  8
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (8)(6)  An inspection may not be accomplished by
  2  forcible entry. Refusal of a long-term care facility to allow
  3  entry of any ombudsman council member constitutes a violation
  4  of part II, part III, or part VII of this chapter. Refusal to
  5  allow entry to any ombudsman council member constitutes a
  6  class I deficiency under part II or part III of this chapter.
  7         Section 2.  Section 400.021, Florida Statutes, is
  8  amended to read:
  9         400.021  Definitions.--When used in this part, unless
10  the context otherwise requires, the term:
11         (1)  "Administrator" means the person licensed under
12  part II of chapter 468 individual who has the general
13  administrative charge of a facility.
14         (2)  "Agency" means the Agency for Health Care
15  Administration, which is the licensing agency under this part.
16         (3)  "Bed reservation policy" means the number of
17  consecutive days and the number of days per year that a
18  resident may leave the nursing home facility for overnight
19  therapeutic visits with family or friends or for
20  hospitalization for an acute condition before the licensee may
21  discharge the resident due to his or her absence from the
22  facility.
23         (4)  "Board" means the Board of Nursing Home
24  Administrators.
25         (5)  "Controlling interest" means:
26         (a)  The applicant for licensure or a licensee;
27         (b)  A person or entity that serves as an officer of,
28  is on the board of directors of, or has a 5-percent or greater
29  ownership interest in the management company or other entity,
30  related or unrelated, which the applicant or licensee may
31  contract with to operate the facility; or
                                  9
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (c)  A person or entity that serves as an officer of,
  2  is on the board of directors of, or has a 5-percent or greater
  3  ownership interest in the applicant or licensee.
  4
  5  The term does not include a voluntary board member.
  6         (6)(5)  "Custodial service" means care for a person
  7  which entails observation of diet and sleeping habits and
  8  maintenance of a watchfulness over the general health, safety,
  9  and well-being of the aged or infirm.
10         (7)(6)  "Department" means the Department of Children
11  and Family Services.
12         (8)(7)  "Facility" means any institution, building,
13  residence, private home, or other place, whether operated for
14  profit or not, including a place operated by a county or
15  municipality, which undertakes through its ownership or
16  management to provide for a period exceeding 24-hour nursing
17  care, personal care, or custodial care for three or more
18  persons not related to the owner or manager by blood or
19  marriage, who by reason of illness, physical infirmity, or
20  advanced age require such services, but does not include any
21  place providing care and treatment primarily for the acutely
22  ill. A facility offering services for fewer than three persons
23  is within the meaning of this definition if it holds itself
24  out to the public to be an establishment which regularly
25  provides such services.
26         (9)(8)  "Geriatric outpatient clinic" means a site for
27  providing outpatient health care to persons 60 years of age or
28  older, which is staffed by a registered nurse or a physician
29  assistant.
30         (10)(9)  "Geriatric patient" means any patient who is
31  60 years of age or older.
                                  10
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (11)(10)  "Local ombudsman council" means a local
  2  long-term care ombudsman council established pursuant to s.
  3  400.0069, located within the Older Americans Act planning and
  4  service areas.
  5         (12)  "Nursing home facility" means any facility which
  6  provides nursing services as defined in part I of chapter 464
  7  and which is licensed according to this part.
  8         (13)(11)  "Nursing home bed" or "bed" means an
  9  accommodation which is ready for immediate occupancy, or is
10  capable of being made ready for occupancy within 48 hours,
11  excluding provision of staffing; and which conforms to minimum
12  space requirements, including the availability of appropriate
13  equipment and furnishings within the 48 hours, as specified by
14  rule of the agency, for the provision of services specified in
15  this part to a single resident.
16         (14)(13)  "Nursing service" means such services or acts
17  as may be rendered, directly or indirectly, to and in behalf
18  of a person by individuals licensed under part I of chapter
19  464 as defined in s. 464.003.
20         (15)(14)  "Planning and service area" means the
21  geographic area in which the Older Americans Act programs are
22  administered and services are delivered by the Department of
23  Elderly Affairs.
24         (16)(15)  "Respite care" means admission to a nursing
25  home for the purpose of providing a short period of rest or
26  relief or emergency alternative care for the primary caregiver
27  of an individual receiving care at home who, without
28  home-based care, would otherwise require institutional care.
29         (17)(16)  "Resident care plan" means a written plan
30  developed, maintained, and reviewed not less than quarterly by
31  a registered nurse, with participation from other facility
                                  11
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  staff and the resident or his or her designee or legal
  2  representative, which includes a comprehensive assessment of
  3  the needs of an individual resident, a listing of services
  4  provided within or outside the facility to meet those needs,
  5  and an explanation of service goals.
  6         (18)(17)  "Resident designee" means a person, other
  7  than the owner, administrator, or employee of the facility,
  8  designated in writing by a resident or a resident's guardian,
  9  if the resident is adjudicated incompetent, to be the
10  resident's representative for a specific, limited purpose.
11         (19)(18)  "State ombudsman council" means the State
12  Long-Term Care Ombudsman Council established pursuant to s.
13  400.0067.
14         (20)  "Voluntary board member" means a director of a
15  not-for-profit corporation or organization who serves solely
16  in a voluntary capacity for the corporation or organization,
17  receives no remuneration for his or her services on the board
18  of directors, and has no financial interest in the corporation
19  or organization. A person shall be recognized by the agency as
20  a voluntary board member upon submission of a statement, on a
21  form provided by the agency, affirming that the requirements
22  of this subsection are satisfied by the director and the
23  not-for-profit corporation or organization.
24         Section 3.  Effective January 1, 2002, section
25  400.0223, Florida Statutes, is created to read:
26         400.0223  Resident's right to have electronic
27  monitoring devices; requirements; penalties.--
28         (1)  A nursing home facility shall permit a resident or
29  legal representative of the resident to monitor the resident
30  through the use of electronic monitoring devices in the
31  resident's room. For the purposes of this section, "electronic
                                  12
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  monitoring device" includes a video surveillance camera, an
  2  audio device, a video telephone, and an Internet video
  3  surveillance device.
  4         (2)  A nursing home facility shall require the resident
  5  or legal representative to post a notice on the door of the
  6  resident's room where an electronic monitoring device is in
  7  use. The notice must state that the room is being monitored by
  8  an electronic monitoring device.
  9         (3)  Monitoring conducted under this section shall:
10         (a)  Be noncompulsory and at the election of the
11  resident or legal representative of the resident.
12         (b)  Be funded by the resident or legal representative
13  of the resident.
14         (c)  Protect the privacy rights of other residents and
15  visitors to the nursing home facility to the extent reasonably
16  possible.
17         (4)  It shall be a violation of this part for a nursing
18  home facility to refuse to admit an individual to the facility
19  or to remove a resident from the facility because of a request
20  for electronic monitoring.
21         (5)  A nursing home facility shall make reasonable
22  physical accommodation for electronic monitoring by providing
23  a reasonably secure place to mount the electronic monitoring
24  device and access to power sources.
25         (6)  A nursing home facility shall inform a resident or
26  legal representative of the resident's right to electronic
27  monitoring.
28         (7)  A nursing home facility may request a resident or
29  legal representative to conduct electronic monitoring within
30  plain view.
31
                                  13
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (8)  The facility administrator may require a resident
  2  or legal representative who wishes to install an electronic
  3  monitoring device to make the request in writing.
  4         (9)  Subject to the Florida Rules of Evidence, a tape
  5  created through the use of electronic monitoring shall be
  6  admissible in either a civil or criminal action brought in a
  7  Florida court.
  8         (10)(a)  A licensee who operates a nursing home
  9  facility in violation of this section is subject to a fine not
10  exceeding $500 per violation per day pursuant to s. 400.102.
11         (b)  A person who willfully and without the consent of
12  a resident or legal representative hampers, obstructs, tampers
13  with, or destroys an electronic monitoring device or tape
14  commits a misdemeanor of the first degree, punishable as
15  provided in s. 775.082 or s. 775.083.
16         Section 4.  Effective October 1, 2001, section 400.023,
17  Florida Statutes, is amended to read:
18         (Substantial rewording of section. See
19         s. 400.023, F.S., for present text.)
20         400.023  Civil actions to enforce nursing home
21  residents' rights.--
22         (1)(a)  Sections 400.023-400.0242 provide the exclusive
23  remedy for any civil action against a nursing home licensee,
24  facility owner, facility administrator, or facility staff for
25  recovery of damages from personal injury to or death of a
26  nursing home resident arising out of negligence or deprivation
27  of rights specified in s. 400.022. This exclusivity applies to
28  and includes any claim against an employee, agent, or other
29  person for whose actions the licensee is alleged to be
30  vicariously liable and to any management company, parent
31  corporation, subsidiary, lessor, or other person alleged to be
                                  14
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  directly liable to the resident or vicariously liable for the
  2  actions of the licensee or its agent.
  3         (b)  However, ss. 400.023-400.0242 do not prohibit a
  4  resident or a resident's legal guardian from pursuing any
  5  administrative remedy or injunctive relief available to a
  6  resident as a result of a deprivation of the rights specified
  7  in s. 400.022, whether or not the deprivation of rights
  8  resulted in personal injury to, or the death of, the resident.
  9  In any case where there is a deprivation of rights that does
10  not involve personal injury or death, including any claim for
11  injunctive relief or an administrative remedy, the prevailing
12  party shall be entitled to recover reasonable attorney's fees,
13  not to exceed $25,000, and costs from the nonprevailing party;
14  however, the joinder of a claim under this paragraph with a
15  claim under paragraph (a) shall not be the basis for an award
16  of fees or costs in such claim under paragraph (a). Except as
17  otherwise set forth in this paragraph, it is the intent of the
18  Legislature that this provision for attorney's fees be
19  interpreted in a manner consistent with federal case law
20  involving an action under Title VII of the Civil Rights Act.
21         (c)  In addition to the remedies provided in ss.
22  400.023-400.0242, a resident, a resident's legal guardian, or
23  the personal representative of the estate of a deceased
24  resident may pursue an action under s. 415.1111. In addition,
25  a resident or a resident's legal guardian shall be entitled to
26  pursue a claim for damages or injunctive relief for those
27  violations of s. 400.022 that do not result in personal injury
28  or death.
29         (2)  A claim pursuant to ss. 400.023-400.0242 may be
30  brought by the resident or his or her legal guardian, by a
31  person or organization acting on behalf of a resident with the
                                  15
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  consent of the resident or his or her guardian, or, if the
  2  resident has died, the personal representative of the estate
  3  of the deceased resident.
  4         (3)  In any claim brought pursuant to ss.
  5  400.023-400.0242, the claimant has the burden of proving by a
  6  preponderance of the evidence that:
  7         (a)  Each defendant had an established duty to the
  8  resident;
  9         (b)  Each defendant breached that duty;
10         (c)  The breach of that duty is the proximate cause of
11  the personal injury to, or the death of, the resident, or the
12  proximate cause of the deprivation of the resident's rights
13  specified in s. 400.022; and
14         (d)  The proximate cause of the personal injury, death,
15  or deprivation of the resident's rights resulted in damages.
16         (4)  For purposes of ss. 400.023-400.0242, a licensee
17  breaches its established duty to the resident when it fails to
18  provide a standard of care that a reasonably prudent nursing
19  home would provide under the same or similar circumstances. A
20  deprivation of the rights specified in s. 400.022 or in any
21  other standard or guidelines specified in this part or in any
22  applicable administrative standard or guidelines of this state
23  or a federal regulatory agency shall be evidence of a breach
24  of duty by the licensee.
25         (5)  A licensee shall not be liable for the medical
26  negligence of any physician rendering care or treatment to the
27  resident except for the services of a medical director as
28  required in this part.  Nothing in this subsection shall be
29  construed to protect a licensee from liability for failure to
30  provide a resident with appropriate observation, assessment,
31
                                  16
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  nursing diagnosis, planning, intervention, and evaluation of
  2  care by nursing staff.
  3         (6)  An action for damages brought under ss.
  4  400.023-400.0242 must be commenced within 2 years after the
  5  date on which the incident giving rise to the action occurred
  6  or within 2 years after the date on which the incident is
  7  discovered, or should have been discovered with the exercise
  8  of due diligence. However, the action may not be commenced
  9  later than 4 years after the date of the incident or
10  occurrence out of which the cause of action accrued. In any
11  action covered by this subsection in which it is shown that
12  fraud, concealment, or intentional misrepresentation of fact
13  prevented the discovery of the injury, the period of
14  limitation is extended forward 2 years from the time that the
15  injury is discovered, or should have been discovered with the
16  exercise of due diligence, but such period may not in any
17  event exceed 7 years after the date that the incident giving
18  rise to the injury occurred.
19         (7)  As used in ss. 400.023-400.0242, the term:
20         (a)  "Claimant" means any person who is entitled to
21  recover damages under this part.
22         (b)  "Licensee" means the legal entity identified in
23  the application for licensure under this part which entity is
24  the licensed operator of the facility.
25         (c)  "Medical expert" means a person duly and regularly
26  engaged in the practice of his or her profession who holds a
27  health care professional degree from a university or college
28  and has had special professional training and experience, or a
29  person who possesses special health care knowledge or skill,
30  concerning the subject upon which he or she is called to
31  testify or provide an opinion.
                                  17
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (d)  "Resident" means a person who occupies a licensed
  2  bed in a facility licensed under this part.
  3         (8)  Sections 768.16-768.26 apply to a claim in which
  4  the resident has died as a result of the facility's breach of
  5  an established duty to the resident. In addition to any other
  6  damages, the personal representative may recover on behalf of
  7  the estate pursuant to ss. 768.16-768.26. The personal
  8  representative may also recover on behalf of the estate
  9  noneconomic damages for the resident's pain and suffering from
10  the time of injury until the time of death. The limitations
11  set forth in s. 768.21(8) do not apply to a claim maintained
12  under this section where a resident has died as a result of
13  the nursing home's breach of a duty to the resident.
14         (9)  For the purpose of this section, punitive damages
15  may be awarded for conduct which is willful, wanton, gross or
16  flagrant, reckless, or consciously indifferent to the rights
17  of the resident.
18         (10)  Discovery of financial information for the
19  purpose of determining the value of punitive damages may not
20  be had unless the plaintiff shows the court by proffer or
21  evidence in the record that a reasonable basis exists to
22  support a claim for punitive damages.
23         (11)  In addition to any other standards for punitive
24  damages, any award of punitive damages must be reasonable in
25  light of the actual harm suffered by the resident and the
26  egregiousness of the conduct that caused the actual harm to
27  the resident.
28         (12)  Any portion of an order, judgment, arbitration
29  decision, mediation agreement, or other type of agreement,
30  contract, or settlement that has the purpose or effect of
31  concealing information relating to the settlement or
                                  18
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  resolution of any claim or action brought pursuant to this
  2  part is void, contrary to public policy, and may not be
  3  enforced. No court shall enter an order or judgment that has
  4  the purpose or effect of concealing any information pertaining
  5  to the resolution or settlement of any claim or action brought
  6  pursuant to ss. 400.023-400.0242. Any person or governmental
  7  entity has standing to contest an order, judgment, arbitration
  8  decision, mediation agreement, or other type of agreement,
  9  contract, or settlement that violates this subsection. A
10  contest pursuant to this subsection may be brought by a motion
11  or an action for a declaratory judgment filed in the circuit
12  court of the circuit where the violation of this subsection
13  occurred.
14         (13)  The defendant must provide to the agency a copy
15  of any resolution of a claim or civil action brought pursuant
16  to ss. 400.023-400.0242 within 90 days after such resolution,
17  including, but not limited to, any final judgment, arbitration
18  decision, order, mediation agreement, or settlement. Failure
19  to provide the copy to the agency shall result in a fine of
20  $500 for each day it is overdue. The agency shall develop
21  forms and adopt rules necessary to administer this subsection.
22         Section 5.  Subsections (1) through (11) of section
23  400.023, Florida Statutes, as amended by this act, shall apply
24  to causes of action accruing on or after October 1, 2001.
25  Subsections (12) and (13) of section 400.023, Florida
26  Statutes, as amended by this act, shall apply to causes of
27  action in existence on October 1, 2001.
28         Section 6.  Effective October 1, 2001, and applicable
29  to causes of action accruing on or after that date, section
30  400.0235, Florida Statutes, is created to read:
31
                                  19
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         400.0235  Requirements of the presuit process.--Before
  2  filing an action in circuit court under this part, the
  3  claimant must engage in the presuit screening process
  4  prescribed in s. 400.0236. If the claim meets the requirements
  5  of s. 400.0236, the claimant must notify each potential
  6  defendant of the claimant's intent to initiate litigation
  7  under this part, at which time the claimant and each potential
  8  defendant must engage in the presuit investigation process
  9  prescribed in s. 400.0237. Upon completion of the presuit
10  investigation process, either party may offer to engage in
11  binding arbitration as described in s. 400.0238. If the
12  parties do not engage in binding arbitration, the claimant may
13  file an action in circuit court and the provisions of s.
14  400.0238 shall apply at trial.
15         Section 7.  Effective October 1, 2001, and applicable
16  to causes of action accruing on or after that date, section
17  400.0236, Florida Statutes, is created to read:
18         400.0236  Presuit screening.--Before issuing a
19  notification of intent to initiate litigation under s.
20  400.0237, the claimant must engage in presuit screening to
21  ascertain that there are reasonable grounds for believing that
22  a defendant violated the provisions of s. 400.022. If the
23  claim involves personal injury to, or death of, the resident,
24  the claimant must obtain a verified written medical opinion
25  from a medical expert which provides corroboration of
26  reasonable grounds to initiate litigation under ss.
27  400.023-400.0242.
28         Section 8.  Effective October 1, 2001, and applicable
29  to causes of action accruing on or after that date, section
30  400.0237, Florida Statutes, is created to read:
31         400.0237  Presuit investigation.--
                                  20
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (1)  Upon completing the presuit requirements in s.
  2  400.0236, the claimant shall notify each prospective defendant
  3  by certified mail, return receipt requested, of the claimant's
  4  intent to initiate litigation. If the claim involves personal
  5  injury to, or death of, the resident, the notice of intent to
  6  initiate litigation must contain the verified written medical
  7  opinion described in s. 400.0236. Upon receipt of the
  8  claimant's notice of intent to initiate litigation, the
  9  defendant, the defendant's insurer, or the defendant's
10  self-insurer must conduct a review to determine the liability
11  of the defendant. The review must be completed within 90 days
12  after receipt of the notice to initiate litigation and the
13  suit may not be filed until at least 90 days after the date
14  the defendant receives notice.
15         (2)  The notice of intent to initiate litigation must
16  be served during the time limits set forth in s. 400.023(6);
17  however, during the 90-day period the statute of limitations
18  is tolled as to all potential defendants and, upon written
19  stipulation by the parties, the 90-day period may be extended,
20  and the statute of limitations is tolled during any such
21  extension. Upon completion of the 90-day period, or upon
22  receiving notice of termination of negotiations during an
23  extended period, the claimant has 60 days or the remainder of
24  the period of the statute of limitations, whichever is
25  greater, within which to file suit.
26         (3)  Each defendant, and each insurer or self-insurer
27  of each defendant, must have a procedure for promptly
28  investigating, reviewing, and evaluating a claim during the
29  90-day period. If the defendant rejects the claim and the
30  claim involves personal injury to, or death of, the resident,
31  corroboration of lack of reasonable grounds for litigation
                                  21
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  under ss. 400.023-400.0242 must be provided by submitting a
  2  verified written medical opinion from a medical expert at the
  3  time the response rejecting the claim is mailed.
  4         (4)  During the 90-day investigation period, each party
  5  shall provide to the other party reasonable access to
  6  information within its possession or control in order to
  7  facilitate evaluation of the claim. Such access shall be
  8  provided without formal discovery, pursuant to s.
  9  766.106(5)-(9), and failure to provide such information is
10  grounds for dismissal of any applicable claim or defense
11  ultimately asserted.
12         Section 9.  Effective October 1, 2001, and applicable
13  to causes of action accruing on or after that date, section
14  400.0238, Florida Statutes, is created to read:
15         400.0238  Voluntary binding arbitration.--
16         (1)(a)  Upon the completion of presuit investigation
17  with preliminary reasonable grounds for a claim intact, the
18  parties may elect to have damages determined by an arbitration
19  panel.  Such election may be initiated by either party by
20  serving a request for voluntary binding arbitration of damages
21  within 90 days after service of the complaint upon the
22  defendant.  The evidentiary standards for voluntary binding
23  arbitration as authorized herein shall be as provided in ss.
24  120.569(2)(g) and 120.57(1)(c).
25         (b)  Upon receipt of a party's request for such
26  arbitration, the opposing party may accept the offer of
27  voluntary binding arbitration within 30 days.  However, in no
28  event shall the defendant be required to respond to the
29  request for arbitration sooner than 90 days after service of
30  the complaint.  Such acceptance within the time period
31
                                  22
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  provided by this paragraph shall be a binding commitment to
  2  comply with the decision of the arbitration panel.
  3         (c)  The arbitration panel shall be composed of three
  4  arbitrators, one selected by the claimant, one selected by the
  5  defendant, and one an administrative law judge furnished by
  6  the Division of Administrative Hearings who shall serve as the
  7  chief arbitrator.  In the event of multiple plaintiffs or
  8  multiple defendants, the arbitrator selected by the side with
  9  multiple parties shall be the choice of those parties.  If the
10  multiple parties cannot reach agreement as to their
11  arbitrator, each of the multiple parties shall submit a
12  nominee, and the director of the Division of Administrative
13  Hearings shall appoint the arbitrator from among such
14  nominees.
15         (d)  The arbitrators shall be independent of all
16  parties, witnesses, and legal counsel, and no officer,
17  director, affiliate, subsidiary, or employee of a party,
18  witness, or legal counsel may serve as an arbitrator in the
19  proceeding.
20         (e)  The rate of compensation for arbitrators other
21  than the administrative law judge shall be set by the chief
22  judge of the appropriate circuit court by schedule or as
23  agreed by the parties.  In setting the schedule, the chief
24  judge shall consider the prevailing rates charged for the
25  delivery of professional services in the community.
26         (f)  Arbitration pursuant to this section shall
27  preclude recourse to any other remedy by the claimant against
28  any participating defendant, and shall be undertaken with the
29  understanding that:
30         1.  Net economic damages shall be awardable, including,
31  but not limited to, past and future medical expenses and 80
                                  23
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  percent of wage loss and loss of earning capacity, offset by
  2  any collateral source payments.
  3         2.  Noneconomic damages shall be limited to a maximum
  4  of $500,000 per incident.
  5         3.  Damages for future economic losses shall be awarded
  6  to be paid by periodic payments pursuant to s. 766.202(8) and
  7  shall be offset by future collateral source payments.
  8         4.  Punitive damages may be awarded by the arbitration
  9  panel for conduct which is willful, wanton, gross or flagrant,
10  reckless, or consciously indifferent to the rights of the
11  resident. Upon such finding, the judgment for the total amount
12  of punitive damages awarded to a claimant may not exceed three
13  times the amount of compensatory damages awarded to each
14  person entitled thereto by the arbitrators. Any award of
15  punitive damages shall be equally divided between the claimant
16  and the Quality Care Improvement Fund and awarded pursuant to
17  paragraphs (3)(b)-(e).
18         5.  The defendant shall be responsible for the payment
19  of interest on all accrued damages with respect to which
20  interest would be awarded at trial.
21         6.  The defendant shall pay the claimant's reasonable
22  attorney's fees and costs, as determined by the arbitration
23  panel, but in no event more than 15 percent of the award,
24  reduced to present value.
25         7.  The defendant shall pay all the costs of the
26  arbitration proceeding and the fees of all the arbitrators
27  other than the administrative law judge.
28         8.  Each defendant who submits to arbitration under
29  this section shall be jointly and severally liable for all
30  damages assessed pursuant to this section.
31
                                  24
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         9.  The defendant's obligation to pay the claimant's
  2  damages shall be for the purpose of arbitration under this
  3  section only.  A defendant's or claimant's offer to arbitrate
  4  shall not be used in evidence or in argument during any
  5  subsequent litigation of the claim following the rejection
  6  thereof. Once arbitration has been selected by the parties, it
  7  shall be with the understanding and agreement that the
  8  defendants do not contest liability, and the issue to be
  9  determined in this regard shall be the amount of compensatory
10  damages to be awarded to the claimant. The defendant may fully
11  contest liability regarding punitive damages and shall not be
12  deemed to have admitted liability for, or the amount of, any
13  punitive damages.
14         10.  The fact of making or accepting an offer to
15  arbitrate shall not be admissible as evidence of liability in
16  any collateral or subsequent proceeding on the claim.
17         11.  Any offer by a claimant to arbitrate must be made
18  to each defendant against whom the claimant has made a claim.
19  Any offer by a defendant to arbitrate must be made to each
20  claimant who has joined in the litigation.  A defendant who
21  rejects a claimant's offer to arbitrate shall be subject to
22  the provisions of paragraph (2)(c). A claimant who rejects a
23  defendant's offer to arbitrate shall be subject to the
24  provisions of paragraph (2)(d).
25         12.  The hearing shall be conducted by all of the
26  arbitrators, but a majority may determine any question of fact
27  and render a final decision.  The chief arbitrator shall
28  decide all evidentiary matters.
29
30  The provisions of this paragraph shall not preclude settlement
31  at any time by mutual agreement of the parties.
                                  25
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (g)  Any issue between the defendant and the
  2  defendant's insurer or self-insurer as to who shall control
  3  the defense of the claim and any responsibility for payment of
  4  an arbitration award shall be determined under existing
  5  principles of law; provided that the insurer or self-insurer
  6  shall not offer to arbitrate or accept a claimant's offer to
  7  arbitrate without the written consent of the defendant.
  8         (h)  The Division of Administrative Hearings is
  9  authorized to promulgate rules to effect the orderly and
10  efficient processing of the arbitration procedures of this
11  section.
12         (i)  Rules promulgated by the Division of
13  Administrative Hearings pursuant to this section, s. 120.54,
14  or s. 120.65 may authorize any reasonable sanctions except
15  contempt for violation of the rules of the division or failure
16  to comply with a reasonable order issued by an administrative
17  law judge, which is not under judicial review.
18         (2)  The following provisions shall govern when
19  voluntary binding arbitration is not offered or accepted:
20         (a)  A proceeding for voluntary binding arbitration is
21  an alternative to judicial proceedings once agreed to by the
22  parties. If not offered or accepted, however, the provisions
23  of paragraph (b) shall apply.
24         (b)  If neither party requests voluntary binding
25  arbitration, the claim shall proceed in the judicial process.
26  In such judicial process, the provisions of s. 768.79 shall
27  apply.
28         (c)  If the defendant refuses a claimant's offer of
29  voluntary binding arbitration under this section:
30         1.  The claim shall proceed in the judicial process
31  without limitation upon damages.
                                  26
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         2.  The claimant's award shall be reduced by any
  2  damages recovered by the claimant from arbitrating
  3  codefendants following arbitration.
  4         (d)  If the claimant rejects a defendant's offer to
  5  enter voluntary binding arbitration under this section:
  6         1.  The claim shall proceed in the judicial process
  7  without limitation upon damages.
  8         2.  The claimant's award shall be reduced by any
  9  damages recovered by the claimant from arbitrating
10  codefendants following arbitration.
11         3.  Notwithstanding any other law to the contrary,
12  punitive damages may not exceed three times the amount of
13  compensatory damages awarded to each person entitled thereto
14  by the trier of fact and the amount shall be divided equally
15  between the claimant and the Quality of Long-Term Care
16  Facility Improvement Trust Fund, in accordance with the
17  following provisions:
18         a.  The clerk of the court shall transmit a copy of the
19  jury verdict to the State Treasurer by certified mail. In the
20  final judgment the court shall order the percentages of the
21  award, payable as provided herein.
22         b.  A settlement agreement entered into between the
23  original parties to the action after a verdict has been
24  returned must provide a proportionate share payable to the
25  Quality of Long-Term Care Facility Improvement Trust Fund
26  specified herein. For purposes of this subsection, a
27  proportionate share is a 50-percent share of that percentage
28  of the settlement amount which the punitive damages portion of
29  the verdict bore to the total of the compensatory and punitive
30  damages in the verdict.
31
                                  27
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         c.  The Department of Banking and Finance shall collect
  2  or cause to be collected all payments due the state under this
  3  section. Such payments are made to the Comptroller and
  4  deposited in the appropriate fund specified in this
  5  subsection.
  6         d.  If the full amount of punitive damages awarded
  7  cannot be collected, the claimant and the other recipient
  8  designated pursuant to this subsection are each entitled to a
  9  proportionate share of the punitive damages collected.
10         (3)(a)1.  In the event that neither the claimant nor
11  the defendant request arbitration under this section, then
12  notwithstanding any other provision of law to the contrary, in
13  any actions arising under this part and involving the award of
14  punitive damages, the judgment for the total amount of
15  punitive damages awarded to a claimant may not exceed three
16  times the amount of compensatory damages awarded to each
17  person entitled thereto by the trier of fact, except as
18  provided in subparagraph 2. This paragraph does not apply to
19  any class action.
20         2.  If any award for punitive damages exceeds the
21  limitation specified in subparagraph 1., the award is presumed
22  to be excessive and the defendant is entitled to remittitur of
23  the amount in excess of the limitation unless the claimant
24  demonstrates to the court by clear and convincing evidence
25  that the award is not excessive in light of the facts and
26  circumstances that were presented to the trier of fact. The
27  court shall give great weight as a mitigating factor to the
28  infrequency or lack of severity of prior claims against the
29  defendant.
30         3.  The jury may not be instructed or informed as to
31  the provisions of this subsection.
                                  28
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (b)  The amount of punitive damages awarded to each
  2  claimant shall be equally divided between the claimant and the
  3  Quality of Long-Term Care Facility Improvement Trust Fund, in
  4  accordance with the following:
  5         1.  The clerk of the court shall transmit a copy of the
  6  jury verdict to the State Treasurer by certified mail. In the
  7  final judgment the court shall order the percentages of the
  8  award, payable as provided herein.
  9         2.  A settlement agreement entered into between the
10  original parties to the action after a verdict has been
11  returned must provide a proportionate share payable to the
12  fund specified herein. Such proportionate share shall be
13  determined by prorating the amount of the settlement between
14  compensatory and punitive damages in the same ratio as the
15  respective portions of the damages awarded in the verdict.
16  That portion of the prorated punitive damages that exceeds
17  three times the prorated compensatory damages shall be the
18  amount of the proportionate share to be divided as provided
19  herein.
20         3.  The Department of Banking and Finance shall collect
21  or cause to be collected all payments due the state under this
22  section. Such payments shall be made to the Comptroller and
23  deposited in the appropriate fund specified in this
24  subsection.
25         4.  If the full amount of punitive damages awarded
26  cannot be collected, the claimant and the other recipient
27  designated pursuant to this subsection are each entitled to a
28  proportional share of the punitive damages collected.
29         Section 10.  Effective October 1, 2001, and applicable
30  to causes of action accruing on or after that date, section
31  400.0239, Florida Statutes, is created to read:
                                  29
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         400.0239  Arbitration to allocate responsibility.--
  2         (1)  This section applies when more than one defendant
  3  has participated in voluntary binding arbitration pursuant to
  4  s. 400.0238.
  5         (2)  Within 20 days after the determination of damages
  6  by the arbitration panel in the first arbitration proceeding,
  7  those defendants who have agreed to voluntary binding
  8  arbitration shall submit any dispute among them regarding the
  9  apportionment of financial responsibility to a separate
10  binding arbitration proceeding. Such proceeding shall be with
11  a panel of three arbitrators, which panel shall consist of the
12  chief arbitrator who presided in the first arbitration
13  proceeding, who shall serve as the chief arbitrator, and two
14  arbitrators appointed by the defendants. If the defendants
15  cannot agree on their selection of arbitrators within 20 days
16  after the determination of damages by the arbitration panel in
17  the first arbitration proceeding, selection of the arbitrators
18  shall be in accordance with chapter 682.
19         (3)  The chief arbitrator shall convene the arbitrators
20  for the purpose of determining allocation of responsibility
21  among multiple defendants within 65 days after the
22  determination of damages by the arbitration panel in the first
23  arbitration proceeding.
24         (4)  The arbitration panel shall allocate financial
25  responsibility among all defendants named in the notice of
26  intent to initiate litigation, regardless of whether the
27  defendant has submitted to arbitration. The defendants in the
28  arbitration proceeding shall pay their proportionate share of
29  the economic and noneconomic damages awarded by the
30  arbitration panel. All defendants in the arbitration
31  proceeding shall be jointly and severally liable for any
                                  30
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  damages assessed in arbitration. The determination of the
  2  percentage of fault of any defendant not in the arbitration
  3  proceeding is not binding against the plaintiff or that
  4  defendant, and is not admissible in any subsequent legal
  5  proceeding.
  6         (5)  Payment by the defendants of the damages awarded
  7  by the arbitration panel in the first arbitration proceeding
  8  shall extinguish those defendants' liability to the claimant
  9  and shall also extinguish those defendants' liability for
10  contribution to any defendants who did not participate in
11  arbitration.
12         (6)  Any defendant paying damages assessed under this
13  section or s. 400.0238 shall have an action for contribution
14  against any nonarbitrating person whose negligence contributed
15  to the injury.
16         Section 11.  Effective October 1, 2001, and applicable
17  to causes of action accruing on or after that date, section
18  400.024, Florida Statutes, is created to read:
19         400.024  Misarbitration.--
20         (1)  At any time during the course of voluntary binding
21  arbitration of a claim under s. 400.0238, the chief arbitrator
22  on the arbitration panel, if he or she determines that
23  agreement cannot be reached, may dissolve the arbitration
24  panel and appoint two new arbitrators from lists of three to
25  five names provided by each party to the arbitration. Not more
26  than one arbitrator shall be appointed from the list provided
27  by any party.
28         (2)  Upon appointment of the new arbitrators,
29  arbitration shall proceed at the direction of the chief
30  arbitrator in accordance with ss. 400.0238-400.0242.
31
                                  31
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (3)  At any time after the allocation arbitration
  2  hearing under s. 400.0239 has concluded, the chief arbitrator
  3  on the arbitration panel may dissolve the arbitration panel
  4  and declare the proceedings concluded if he or she determines
  5  that agreement cannot be reached.
  6         Section 12.  Effective October 1, 2001, and applicable
  7  to causes of action accruing on or after that date, section
  8  400.0241, Florida Statutes, is created to read:
  9         400.0241  Payment of arbitration award.--
10         (1)  Within 20 days after the determination of damages
11  by the arbitration panel pursuant to s. 400.0238, the
12  defendant shall:
13         (a)  Pay the arbitration award, including interest at
14  the legal rate, to the claimant; or
15         (b)  Submit any dispute among multiple defendants to
16  arbitration as provided in s. 400.0239.
17         (2)  Commencing 90 days after the award rendered in the
18  arbitration procedure under s. 400.0238, such award shall
19  accrue interest at the rate of 18 percent per year.
20         Section 13.  Effective October 1, 2001, and applicable
21  to causes of action accruing on or after that date, section
22  400.0242, Florida Statutes, is created to read:
23         400.0242  Appeal of arbitration award.--
24         (1)  An arbitration award and an allocation of
25  financial responsibility are final agency action for purposes
26  of s. 120.68. Any appeal must be filed in the district court
27  of appeal for the district in which the arbitration took
28  place, is limited to review of the record, and must otherwise
29  proceed in accordance with s. 120.68. The amount of an
30  arbitration award or an order allocating financial
31  responsibility, the evidence in support of either, and the
                                  32
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  procedure by which either is determined are subject to
  2  judicial scrutiny only in a proceeding instituted under this
  3  subsection.
  4         (2)  An appeal does not operate to stay an arbitration
  5  award, and an arbitration panel, member of an arbitration
  6  panel, or circuit court shall not stay an arbitration award.
  7  The district court of appeal may order a stay to prevent
  8  manifest injustice, but the court shall not abrogate the
  9  provisions of s. 400.0241(2).
10         (3)  Any party to an arbitration proceeding may enforce
11  an arbitration award or an allocation of financial
12  responsibility by filing a petition in the circuit court for
13  the circuit in which the arbitration took place. A petition
14  may not be granted unless the time for appeal has expired. If
15  an appeal has been taken, a petition may not be granted with
16  respect to an arbitration award or an allocation of financial
17  responsibility which has been stayed.
18         (4)  If the petitioner establishes the authenticity of
19  the arbitration award or the allocation of financial
20  responsibility, shows that the time for appeal has expired,
21  and demonstrates that no stay is in place, the court shall
22  enter such orders and judgments as are required to carry out
23  the terms of the arbitration award or allocation of financial
24  responsibility. Such orders are enforceable by the contempt
25  powers of the court, and execution will issue, upon the
26  request of a party, for such judgments.
27         Section 14.  Section 400.0245, Florida Statutes, is
28  created to read:
29         400.0245  Adverse action against employee for
30  disclosing information of specified nature prohibited;
31  employee remedy and relief.--
                                  33
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (1)  SHORT TITLE.--This section may be cited as the
  2  "Nursing Home Facility Whistleblower's Act."
  3         (2)  LEGISLATIVE INTENT.--It is the intent of the
  4  Legislature to prevent nursing home facilities or independent
  5  contractors from taking retaliatory action against an employee
  6  who reports to an appropriate person or agency violations of
  7  law on the part of a facility or independent contractor that
  8  create a substantial and specific danger to a nursing home
  9  facility resident's health, safety, or welfare. It is further
10  the intent of the Legislature to prevent nursing home
11  facilities or independent contractors from taking retaliatory
12  action against any person who discloses information to an
13  appropriate agency alleging improper use of or gross waste of
14  governmental funds, or any other abuse or gross neglect of
15  duty on the part of a nursing home facility.
16         (3)  DEFINITIONS.--As used in this section, unless
17  otherwise specified, the following words or terms shall have
18  the meanings indicated:
19         (a)  "Adverse personnel action" means the discharge,
20  suspension, transfer, or demotion of any employee or the
21  withholding of bonuses, the reduction in salary or benefits,
22  or any other adverse action taken against an employee within
23  the terms and conditions of employment by a nursing home
24  facility or independent contractor.
25         (b)  "Agency" means any state, regional, county, local,
26  or municipal government entity, whether executive, judicial,
27  or legislative; or any official, officer, department,
28  division, bureau, commission, authority, or political
29  subdivision thereof.
30         (c)  "Employee" means a person who performs services
31  for, and under the control and direction of, or contracts
                                  34
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  with, a nursing home facility or independent contractor for
  2  wages or other remuneration.
  3         (d)  "Gross mismanagement" means a continuous pattern
  4  of managerial abuses, wrongful or arbitrary and capricious
  5  actions, or fraudulent or criminal conduct which may have a
  6  substantial adverse economic impact.
  7         (e)  "Independent contractor" means a person who is
  8  engaged in any business and enters into a contract with a
  9  nursing home facility.
10         (4)  ACTIONS PROHIBITED.--
11         (a)  A nursing home facility or an independent
12  contractor shall not dismiss, discipline, or take any other
13  adverse personnel action against an employee for disclosing
14  information pursuant to the provisions of this section.
15         (b)  A nursing home facility or an independent
16  contractor shall not take any adverse action that affects the
17  rights or interests of a person in retaliation for the
18  person's disclosure of information under this section.
19         (c)  The provisions of this subsection shall not be
20  applicable when an employee or person discloses information
21  known by the employee or person to be false.
22         (5)  NATURE OF INFORMATION DISCLOSED.--The information
23  disclosed under this section must include:
24         (a)  Any violation or suspected violation of any
25  federal, state, or local law, rule, or regulation committed by
26  an employee or agent of a nursing home facility or independent
27  contractor which creates and presents a substantial and
28  specific danger to the nursing home facility resident's
29  health, safety, or welfare.
30         (b)  Any act or suspected act of gross mismanagement,
31  malfeasance, misfeasance, gross waste of public funds, or
                                  35
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  gross neglect of duty committed by an employee or agent of a
  2  nursing home facility or independent contractor.
  3         (6)  TO WHOM INFORMATION DISCLOSED.--The information
  4  disclosed under this section must be disclosed to any agency
  5  or Federal Government entity or person designated in s.
  6  400.022(1)(c) having the authority to investigate, police,
  7  manage, or otherwise remedy the violation or act.
  8         (7)  EMPLOYEES AND PERSONS PROTECTED.--This section
  9  protects employees and persons who disclose information on
10  their own initiative in a written and signed complaint; who
11  are requested to participate in an investigation, hearing, or
12  other inquiry conducted by any agency or Federal Government
13  entity; who refuse to participate in any adverse action
14  prohibited by this section; or who initiate a complaint
15  through any appropriate complaint hotline. No remedy or other
16  protection under this section applies to any person who has
17  committed or intentionally participated in committing the
18  violation or suspected violation for which protection under
19  this section is being sought.
20         (8)  REMEDIES.--Any person protected by this section
21  may bring a civil action in any court of competent
22  jurisdiction against a nursing home facility for any action
23  prohibited by this section.
24         (9)  RELIEF.--In any action brought under this section,
25  the relief may include the following:
26         (a)  Reinstatement of the employee to the same position
27  held before the adverse action was commenced or to an
28  equivalent position, or reasonable front pay as alternative
29  relief.
30         (b)  Reinstatement of the employee's full fringe
31  benefits and seniority rights, as appropriate.
                                  36
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (c)  Compensation, if appropriate, for lost wages, lost
  2  benefits, or other lost remuneration caused by the adverse
  3  action.
  4         (d)  Payment of reasonable costs, including attorney's
  5  fees, to a substantially prevailing employee, or to the
  6  prevailing employer if the employee filed a frivolous action
  7  in bad faith.
  8         (e)  Issuance of an injunction, if appropriate, by a
  9  court of competent jurisdiction.
10         (f)  Temporary reinstatement to the employee's former
11  position or to an equivalent position, pending the final
12  outcome on the complaint, if an employee complains of being
13  discharged in retaliation for a protected disclosure and if a
14  court of competent jurisdiction determines that the disclosure
15  was not made in bad faith or for a wrongful purpose or
16  occurred after a nursing home facility's or independent
17  contractor's initiation of a personnel action against the
18  employee which includes documentation of the employee's
19  violation of a disciplinary standard or performance
20  deficiency.
21         (10)  PENALTIES.--
22         (a)  A nursing home facility determined by the agency
23  to have committed an action prohibited under subsection (4) is
24  subject to the penalties set forth in s. 400.23(8)(a).
25         (b)  In addition, a violation of subsection (4)
26  constitutes a felony of the third degree, punishable as
27  provided in s. 775.082 and s. 775.083.
28         (11)  REWARD.--Any person protected by this section who
29  discloses information as provided in paragraph (5)(b) related
30  to gross waste of public funds shall be awarded $10,000, which
31  sum shall be paid from the Resident Protection Trust Fund.
                                  37
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (12)  POSTING OF NOTICE.--Each facility licensed under
  2  this part shall prominently post notice of the protections,
  3  rewards, and remedies provided under this section, along with
  4  the telephone numbers for making reports, and shall provide
  5  such notice to all employees of the facility within 30 days
  6  after the effective date of this section and to all new
  7  employees hired subsequent to that date.
  8         (13)  DEFENSES.--It shall be an affirmative defense to
  9  any action brought pursuant to this section that the adverse
10  action was predicated upon grounds other than, and would have
11  been taken absent, the employee's or person's exercise of
12  rights protected by this section.
13         (14)  EXISTING RIGHTS.--This section does not diminish
14  the rights, privileges, or remedies of an employee under any
15  other law or rule or under any collective bargaining agreement
16  or employment contract.
17         Section 15.  Subsections (2) and (5) of section
18  400.071, Florida Statutes, are amended, subsections (9) and
19  (10) are renumbered as subsections (10) and (11),
20  respectively, and a new subsection (9) is added to said
21  section, to read:
22         400.071  Application for license.--
23         (2)  The application shall be under oath and shall
24  contain the following:
25         (a)  The name, address, and social security number of
26  the applicant if an individual; if the applicant is a firm,
27  partnership, or association, its name, address, and employer
28  identification number (EIN), and the name and address of any
29  controlling interest every member; if the applicant is a
30  corporation, its name, address, and employer identification
31  number (EIN), and the name and address of its director and
                                  38
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  officers and of each person having at least a 5 percent
  2  interest in the corporation; and the name by which the
  3  facility is to be known.
  4         (b)  The name of any person whose name is required on
  5  the application under the provisions of paragraph (a) and who
  6  owns at least a 10 percent interest in any professional
  7  service, firm, association, partnership, or corporation
  8  providing goods, leases, or services to the facility for which
  9  the application is made, and the name and address of the
10  professional service, firm, association, partnership, or
11  corporation in which such interest is held.
12         (c)  The location of the facility for which a license
13  is sought and an indication, as in the original application,
14  that such location conforms to the local zoning ordinances.
15         (d)  The name of the person or persons under whose
16  management or supervision the facility will be conducted and
17  the name of its licensed administrator.
18         (e)  A signed affidavit disclosing any financial or
19  ownership interest that a person or entity described in
20  paragraph (a) or paragraph (d) has held in the last 5 years in
21  any entity licensed by this state or any other state to
22  provide health or residential care, which entity has closed
23  voluntarily or involuntarily, and the reason for the closure;
24  has filed bankruptcy; has had a receiver appointed or a
25  license denied, suspended, or revoked; or has had an
26  injunction issued against it which was initiated by a
27  regulatory agency.
28         (f)(e)  The total number of beds and the total number
29  of Medicare and Medicaid certified beds.
30         (g)(f)  Information relating to the number, experience,
31  and training of the employees of the facility and of the moral
                                  39
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  character of the applicant and employees which the agency
  2  requires by rule, including the name and address of any
  3  nursing home with which the applicant or employees have been
  4  affiliated through ownership or employment within 5 years of
  5  the date of the application for a license and the record of
  6  any criminal convictions involving the applicant and any
  7  criminal convictions involving an employee if known by the
  8  applicant after inquiring of the employee.  The applicant must
  9  demonstrate that sufficient numbers of qualified staff, by
10  training or experience, will be employed to properly care for
11  the type and number of residents who will reside in the
12  facility.
13         (h)(g)  Copies of any settlement entered into by the
14  applicant or any civil verdict or judgment involving the
15  applicant, rendered within the 10 years preceding the
16  application, relating to medical negligence, violation of
17  residents' rights, or wrongful death.  As a condition of
18  licensure, the licensee agrees to provide to the agency copies
19  of any new settlement, verdict, or judgment involving the
20  applicant, relating to such matters, within 30 days after
21  filing with the clerk of the court.  The information required
22  in this paragraph shall be maintained in the facility's
23  licensure file and in an agency database which is available as
24  a public record.
25         (5)  The applicant shall furnish satisfactory proof of
26  financial ability to operate and conduct the nursing home in
27  accordance with the requirements of this part and all rules
28  adopted under this part, and the agency shall establish
29  standards for this purpose, including standards for the
30  information required to be reported pursuant to paragraph
31  (2)(e). The agency also shall establish documentation
                                  40
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  requirements, to be completed by each applicant, that show
  2  anticipated facility revenues and expenditures, the basis for
  3  financing the anticipated cash-flow requirements of the
  4  facility, and an applicant's access to contingency financing.
  5         (9)  Effective on the effective date of this section,
  6  as a condition of licensure, each facility must establish and
  7  submit with its application a plan for quality assurance and
  8  for conducting risk management.
  9         Section 16.  Section 400.102, Florida Statutes, is
10  amended to read:
11         400.102  Action by agency against licensee; grounds.--
12         (1)  Any of the following conditions shall be grounds
13  for action by the agency against a licensee:
14         (a)  An intentional or negligent act materially
15  affecting the health or safety of residents of the facility;
16         (b)  Misappropriation or conversion of the property of
17  a resident of the facility;
18         (c)  Failure to follow the criteria and procedures
19  provided under part I of chapter 394 relating to the
20  transportation, voluntary admission, and involuntary
21  examination of a nursing home resident;
22         (d)  Violation of provisions of this part or rules
23  adopted under this part; or
24         (e)  Fraudulent altering, defacing, or falsifying any
25  medical or other nursing home record, or causing or procuring
26  any of these offenses to be committed;
27         (f)  A demonstrated pattern of deficient practice.
28  Deficiencies found during the first 6 months after a change of
29  ownership to an unrelated party shall not be counted toward a
30  pattern of deficient practice under this paragraph. The agency
31  may adopt rules to implement this paragraph.
                                  41
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (g)  Failure to pay any outstanding fines assessed by
  2  final agency order or fines assessed by the Health Care
  3  Financing Administration pursuant to requirements for federal
  4  Medicare certification;
  5         (h)  Exclusion from the Medicare or Medicaid programs;
  6  or
  7         (i)(e)  Any act constituting a ground upon which
  8  application for a license may be denied.
  9         (2)  If the agency has reasonable belief that any of
10  such conditions exist, it shall take the following action:
11         (a)  In the case of an applicant for original
12  licensure, denial action as provided in s. 400.121.
13         (b)  In the case of an applicant for relicensure or a
14  current licensee, administrative action as provided in s.
15  400.121 or injunctive action as authorized by s. 400.125.
16         (c)  In the case of a facility operating without a
17  license, injunctive action as authorized in s. 400.125.
18
19  Agency action for violations of this section shall not
20  preclude agency action under s. 400.23(8).
21         Section 17.  Subsections (4) through (10) are added to
22  section 400.118, Florida Statutes, to read:
23         400.118  Quality assurance; early warning system;
24  monitoring; rapid response teams; verification of nursing
25  staff; provision of care and services.--
26         (4)  Each time a staff person of the agency conducting
27  an inspection, an investigation of a complaint, an unannounced
28  facility review, or a monitoring visit under this part is in a
29  nursing home facility, the staff person shall verify, record,
30  and report to the agency the number of certified nursing
31  assistants, the number of licensed practical nurses, and the
                                  42
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  number of registered nurses on duty. The staff person shall
  2  report the date and time of the visit, and the facility census
  3  at that time, to the agency.
  4         (5)  Each resident must receive and the facility must
  5  provide the necessary care and services to attain or maintain
  6  the highest practicable physical, mental, and psychosocial
  7  well-being, in accordance with the comprehensive assessment
  8  and plan of care.
  9         (a)  Activities of daily living.--Based on the
10  comprehensive assessment of a resident, the facility must
11  ensure that:
12         1.  The resident's abilities in activities of daily
13  living do not diminish unless circumstances of the
14  individual's clinical condition demonstrate that diminution
15  was unavoidable. These abilities include the resident's
16  ability to bathe, dress, and groom; transfer and ambulate;
17  toilet; eat; and use speech, language, or other functional
18  communication systems.
19         2.  The resident is given the appropriate treatment and
20  services to maintain or improve his or her abilities specified
21  in subparagraph 1.
22         3.  A resident who is unable to carry out activities of
23  daily living receives the necessary services to maintain good
24  nutrition, grooming, and personal and oral hygiene.
25         (b)  Vision and hearing.--To ensure that residents
26  receive proper treatment and assistive devices to maintain
27  vision and hearing abilities, the facility must, if necessary,
28  assist the resident in making appointments with, and by
29  arranging for transportation to and from, the office of a
30  practitioner specializing in the treatment of vision or
31  hearing impairment or the office of a professional
                                  43
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  specializing in the provision of vision or hearing assistive
  2  devices.
  3         (c)  Pressure sores.--Based on the comprehensive
  4  assessment of a resident, the facility must ensure that a
  5  resident who enters the facility without pressure sores does
  6  not develop pressure sores unless the individual's clinical
  7  condition demonstrates that they were unavoidable; and a
  8  resident having pressure sores receives necessary treatment
  9  and services to promote healing, prevent infection, and
10  prevent new sores from developing.
11         (d)  Urinary incontinence.--Based on the comprehensive
12  assessment of a resident, the facility must ensure that a
13  resident who enters the facility without an indwelling
14  catheter is not catheterized unless the resident's clinical
15  condition demonstrates that catheterization was necessary; and
16  a resident who is incontinent of bladder receives appropriate
17  treatment and services to prevent urinary tract infections and
18  to restore as much normal bladder function as possible.
19         (e)  Range of motion.--Based on the comprehensive
20  assessment of a resident, the facility must ensure that a
21  resident who enters the facility without a limited range of
22  motion does not experience reduction in range of motion unless
23  the resident's clinical condition demonstrates that a
24  reduction in range of motion is unavoidable; and a resident
25  with a limited range of motion receives appropriate treatment
26  and services to increase range of motion or to prevent further
27  decrease in range of motion.
28         (f)  Mental and psychosocial functioning.--Based on the
29  comprehensive assessment of a resident, the facility must
30  ensure that a resident who displays mental or psychosocial
31  adjustment difficulty receives appropriate treatment and
                                  44
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  services to correct the assessed problem; and a resident whose
  2  assessment did not reveal a mental or psychosocial adjustment
  3  difficulty does not display a pattern of decreased social
  4  interaction or increased withdrawn, angry, or depressive
  5  behaviors, unless the resident's clinical condition
  6  demonstrates that such a pattern was unavoidable.
  7         (g)  Nasogastric tubes.--Based on the comprehensive
  8  assessment of a resident, the facility must ensure that a
  9  resident who has been able to eat enough alone or with
10  assistance is not fed by a nasogastric tube unless the
11  resident's clinical condition demonstrates that use of a
12  nasogastric or gastrostomy tube was unavoidable; and the
13  resident receives the appropriate treatment and services to
14  prevent aspiration pneumonia, diarrhea, vomiting, dehydration,
15  metabolic abnormalities, and nasal-pharyngeal ulcers and to
16  restore, if possible, normal eating skills.
17         (h)  Accidents.--The facility must ensure that the
18  residents' environment remains as free of accident hazards as
19  is possible and that each resident receives adequate
20  supervision and assistance devices to prevent accidents.
21         (i)  Nutrition.--Based on the comprehensive assessment
22  of a resident, the facility must ensure that a resident
23  maintains acceptable parameters of nutritional status, such as
24  body weight and protein levels, unless the resident's clinical
25  condition demonstrates that this is not possible, and receives
26  a therapeutic diet when there is a nutritional problem.
27         (j)  Hydration.--The facility must provide each
28  resident with sufficient fluid intake to maintain proper
29  hydration and health.
30         (k)  Special needs.--The facility must ensure that
31  residents receive proper treatment and care for the following
                                  45
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  special services: injections; parenteral and enteral fluids;
  2  colostomy, ureterostomy, or ileostomy care; tracheostomy care;
  3  tracheal suctioning; respiratory care; foot care; and
  4  prostheses.
  5         (l)  Drug regimen.--
  6         1.  The facility must ensure that a resident's drug
  7  regimen is free from unnecessary drugs. An unnecessary drug is
  8  any drug when used in excessive doses, including duplicate
  9  drug therapy; or for excessive duration; or without adequate
10  monitoring; or without adequate indications for its use; or in
11  the presence of adverse consequences which indicate the dose
12  should be reduced or discontinued; or any combination of such
13  uses.
14         2.  Based on a comprehensive assessment of a resident,
15  the facility must ensure that residents who have not used
16  antipsychotic drugs are not given these drugs unless
17  antipsychotic drug therapy is necessary to treat a specific
18  condition as diagnosed and documented in the clinical record;
19  and residents who use antipsychotic drugs receive gradual dose
20  reductions, and behavioral interventions, unless clinically
21  contraindicated, in an effort to discontinue these drugs.
22         3.  The facility must ensure that a resident's drug
23  regimen is free of any significant medication errors. The
24  facility must ensure that the facility medication error rate
25  is less than 5 percent.
26         (6)  A resident who has not been adjudged incapacitated
27  shall be assisted to participate in the planning of all
28  medical treatment and in the development of the plan of care.
29         (7)  A resident who refuses medication, treatment, or
30  other components of the plan of care shall be advised of the
31
                                  46
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  potential consequences of such actions. The resident's refusal
  2  shall be documented in the medical record.
  3         (8)  The legal representative of a resident who has
  4  been adjudged incapacitated and unable to make decisions about
  5  medication, treatment, or other components of the plan of care
  6  must be informed in writing of the resident's proposed plan of
  7  care and the consequences of refusal of medication, treatment,
  8  or other components of the plan of care.
  9         (9)  If a resident refuses medication, treatment, or
10  other components of the plan of care, the nursing home
11  facility must continue to provide other services that the
12  resident agrees to, in accordance with the resident's plan of
13  care.
14         (10)  All refusals of medication, treatment, or other
15  components of the plan of care by the resident or his or her
16  legal representative shall be acknowledged in writing and
17  signed by the resident's physician.
18         Section 18.  Section 400.1183, Florida Statutes, is
19  created to read:
20         400.1183 Resident grievance and complaint procedures.--
21         (1)  Every nursing home must have a grievance procedure
22  available to its residents and their families. The grievance
23  procedure must include:
24         (a)  An explanation of how to pursue redress of a
25  grievance or complaint.
26         (b)  The names, job titles, and telephone numbers of
27  the employees responsible for implementing the organization's
28  grievance procedure. The list must include the address and the
29  toll-free telephone numbers of the ombudsman and the agency.
30         (c)  A simple description of the process through which
31  a resident may, at any time, contact the toll-free telephone
                                  47
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  hotline of the ombudsman or the agency to report the
  2  unresolved grievance.
  3         (d)  A procedure for providing assistance to residents
  4  who cannot prepare a written grievance or complaint without
  5  help.
  6         (2)  Each facility shall maintain records of all
  7  grievances and shall report annually to the agency the total
  8  number of grievances handled, a categorization of the cases
  9  underlying the grievances, and the final disposition of the
10  grievances.
11         (3)  Each facility must respond to the complaint or
12  grievance within a reasonable time after its submission.
13         (4)  The agency shall investigate any complaint or
14  grievance at any time.
15         (5)  The agency shall impose an administrative fine, in
16  accordance with s. 400.121, against a nursing home facility
17  for noncompliance with this section.
18         Section 19.  Subsections (2) and (5) of section
19  400.121, Florida Statutes, are amended, and subsections (7)
20  and (8) are added to said section, to read:
21         400.121  Denial, suspension, revocation of license;
22  moratorium on admissions; administrative fines; procedure;
23  order to increase staffing.--
24         (1)  The agency may deny, revoke, or suspend a license
25  or impose an administrative fine, not to exceed $500 per
26  violation per day, for a violation of any provision of s.
27  400.102(1).  All hearings shall be held within the county in
28  which the licensee or applicant operates or applies for a
29  license to operate a facility as defined herein.
30         (2)  Except as provided in s. 400.23(8), a $500 fine
31  shall be imposed for each violation of this part The agency,
                                  48
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  as a part of any final order issued by it under this part, may
  2  impose such fine as it deems proper, except that such fine may
  3  not exceed $500 for each violation. Each day a violation of
  4  this part occurs constitutes a separate violation and is
  5  subject to a separate fine, but in no event may any fine
  6  aggregate more than $5,000.  A fine may be levied pursuant to
  7  this section in lieu of and notwithstanding the provisions of
  8  s. 400.23. Fines paid by any nursing home facility licensee
  9  under this subsection shall be deposited in the Resident
10  Protection Trust Fund and expended as provided in s. 400.063.
11         (5)  An action taken by the agency to deny, suspend, or
12  revoke a facility's license under this part, in which the
13  agency claims that the facility owner or an employee of the
14  facility has threatened the health, safety, or welfare of a
15  resident of the facility, shall be heard by the Division of
16  Administrative Hearings of the Department of Management
17  Services within 120 days after receipt of the facility's
18  request for a hearing, unless the time limitation is waived by
19  both parties.  The administrative law judge must render a
20  decision within 30 days after receipt of a proposed
21  recommended order.  This subsection does not modify the
22  requirement that an administrative hearing be held within 90
23  days after a license is suspended under paragraph (4)(b).
24         (7)  The agency may deny an application based on the
25  disclosure of information required in s. 400.07(2)(e) if such
26  information demonstrates that any controlling interest has
27  been the subject of an adverse action by a regulatory
28  authority of any jurisdiction, including its agencies or
29  subdivisions, for a violation that would constitute a
30  violation under Florida law. The licensing authority's
31  acceptance of a relinquishment of licensure, stipulation,
                                  49
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  consent order, or other settlement, offered in response to or
  2  in anticipation of the filing of charges against the license,
  3  shall be construed as an adverse action against the license.
  4  If the adverse action solely involves the management company,
  5  the applicant or licensee shall be given 30 days to replace
  6  the management company with a company that has not been the
  7  subject of an adverse action as described in this subsection.
  8  The agency may adopt rules as necessary to implement this
  9  subsection.
10         (8)  Administrative proceedings challenging agency
11  licensure enforcement actions shall be reviewed on the basis
12  of the facts and conditions that resulted in the initial
13  agency action.
14         Section 20.  Section 400.141, Florida Statutes, is
15  amended to read:
16         400.141  Administration and management of nursing home
17  facilities.--Every licensed facility shall comply with all
18  applicable standards and rules of the agency and shall:
19         (1)  Be under the administrative direction and charge
20  of a licensed administrator.
21         (2)  Appoint a medical director licensed pursuant to
22  chapter 458 or chapter 459 who meets the criteria established
23  by the Florida Medical Directors Association adopted by agency
24  rule. The agency may establish by rule more specific criteria
25  for the appointment of a medical director.
26         (3)  Have available the regular, consultative, and
27  emergency services of physicians licensed by the state.
28         (4)  Have sufficient nursing staff, on a 24-hour basis,
29  to provide nursing and related services to residents in order
30  to maintain the highest practicable physical, mental, and
31
                                  50
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  psychosocial well-being of each resident, as determined by
  2  resident assessments and plans of care.
  3         (5)  Conduct initially and periodically a
  4  comprehensive, accurate, standardized, reproducible assessment
  5  of each resident's functional capacity and care plans in
  6  conformance with the federal regulations contained in Title 42
  7  of the Code of Federal Regulation. Each assessment must be
  8  conducted or coordinated by a registered nurse who signs and
  9  certifies the accuracy of the assessment.
10         (6)  Employ registered nurses and licensed practical
11  nurses who are responsible for the proper practice of
12  professional nursing and practical nursing, respectively, in
13  accordance with chapter 464.
14         (7)  Designate as the director of nursing or the
15  assistant director of nursing persons who have had a least 12
16  months of experience in nursing service supervision or
17  administration, and education or work experience beyond the
18  minimum required for licensure in rehabilitative or geriatric
19  nursing, before assuming responsibility for the total nursing
20  service program in a nursing home.
21         (8)  Designate as the charge nurse on duty a person who
22  has the ability to recognize and respond to significant
23  changes in a resident's condition.
24         (9)(4)  Provide for resident use of a community
25  pharmacy as specified in s. 400.022(1)(q). Any other law to
26  the contrary notwithstanding, a registered pharmacist licensed
27  in Florida, that is under contract with a facility licensed
28  under this chapter, shall repackage a nursing facility
29  resident's bulk prescription medication which has been
30  packaged by another pharmacist licensed in any state in the
31  United States into a unit dose system compatible with the
                                  51
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  system used by the nursing facility, if the pharmacist is
  2  requested to offer such service. To be eligible for
  3  repackaging, a resident or the resident's spouse must receive
  4  prescription medication benefits provided through a former
  5  employer as part of his or her retirement benefits a qualified
  6  pension plan as specified in s. 4972 of the Internal Revenue
  7  Code, a federal retirement program as specified under 5 C.F.R.
  8  s. 831, or a long-term care policy as defined in s.
  9  627.9404(1). A pharmacist who correctly repackages and
10  relabels the medication and the nursing facility which
11  correctly administers such repackaged medication under the
12  provisions of this subsection shall not be held liable in any
13  civil or administrative action arising from the repackaging.
14  In order to be eligible for the repackaging, a nursing
15  facility resident for whom the medication is to be repackaged
16  shall sign an informed consent form provided by the facility
17  which includes an explanation of the repackaging process and
18  which notifies the resident of the immunities from liability
19  provided herein. A pharmacist who repackages and relabels
20  prescription medications, as authorized under this subsection,
21  may charge a reasonable fee for costs resulting from the
22  implementation of this provision.
23         (10)(5)  Provide for the access of the facility
24  residents to dental and other health-related services,
25  recreational services, rehabilitative services, and social
26  work services appropriate to their needs and conditions and
27  not directly furnished by the licensee.  When a geriatric
28  outpatient nurse clinic is conducted in accordance with rules
29  adopted by the agency, outpatients attending such clinic shall
30  not be counted as part of the general resident population of
31  the nursing home facility, nor shall the nursing staff of the
                                  52
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  geriatric outpatient clinic be counted as part of the nursing
  2  staff of the facility, until the outpatient clinic load
  3  exceeds 15 a day.
  4         (11)(6)  Be allowed and encouraged by the agency to
  5  provide other needed services under certain conditions. If the
  6  facility has a standard licensure status, and has had no class
  7  I or class II deficiencies during the past 2 years or has been
  8  awarded a Gold Seal under the program established in s.
  9  400.235, it may be encouraged by the agency to provide
10  services, including, but not limited to, respite and adult day
11  services, which enable individuals to move in and out of the
12  facility.  A facility is not subject to any additional
13  licensure requirements for providing these services. Respite
14  care may be offered to persons in need of short-term or
15  temporary nursing home services. Respite care must be provided
16  in accordance with this part and rules adopted by the agency.
17  However, the agency shall, by rule, adopt modified
18  requirements for resident assessment, resident care plans,
19  resident contracts, physician orders, and other provisions, as
20  appropriate, for short-term or temporary nursing home
21  services.  The agency shall allow for shared programming and
22  staff in a facility which meets minimum standards and offers
23  services pursuant to this subsection, but, if the facility is
24  cited for deficiencies in patient care, may require additional
25  staff and programs appropriate to the needs of service
26  recipients. A person who receives respite care may not be
27  counted as a resident of the facility for purposes of the
28  facility's licensed capacity unless that person receives
29  24-hour respite care. A person receiving either respite care
30  for 24 hours or longer or adult day services must be included
31  when calculating minimum staffing for the facility. Any costs
                                  53
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  and revenues generated by a nursing home facility from
  2  nonresidential programs or services shall be excluded from the
  3  calculations of Medicaid per diems for nursing home
  4  institutional care reimbursement.
  5         (12)(7)  If the facility has a standard licensure
  6  status or is a Gold Seal facility, exceeds minimum staffing
  7  standards, and is part of a retirement community that offers
  8  other services pursuant to part III, part IV, or part V, be
  9  allowed to share programming and staff.  At the time of
10  relicensure, a retirement community that uses this option must
11  demonstrate through staffing records that minimum staffing
12  requirements for the facility were exceeded.
13         (13)(8)  Maintain the facility premises and equipment
14  and conduct its operations in a safe and sanitary manner.
15         (14)(9)  If the licensee furnishes food service,
16  provide a wholesome and nourishing diet sufficient to meet
17  generally accepted standards of proper nutrition for its
18  residents and provide such therapeutic diets as may be
19  prescribed by attending physicians.  In making rules to
20  implement this subsection, the agency shall be guided by
21  standards recommended by nationally recognized professional
22  groups and associations with knowledge of dietetics.
23         (15)(10)  Keep full records of resident admissions and
24  discharges; medical and general health status, including
25  medical records, personal and social history, and identity and
26  address of next of kin or other persons who may have
27  responsibility for the affairs of the residents; and
28  individual resident care plans including, but not limited to,
29  prescribed services, service frequency and duration, and
30  service goals.  The records shall be open to inspection by the
31  agency.
                                  54
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (16)  Maintain in the medical record for each resident
  2  a daily chart of certified nursing assistant services provided
  3  to the resident. This record must be completed
  4  contemporaneously with the delivery of care, by the certified
  5  nursing assistant caring for the resident. This record must
  6  indicate assistance with activities of daily living,
  7  assistance with eating, and assistance with drinking, and must
  8  record each offering of nutrition and hydration for those
  9  residents whose plan of care or assessment indicates a risk
10  for malnutrition or dehydration.
11         (17)(11)  Keep such fiscal records of its operations
12  and conditions as may be necessary to provide information
13  pursuant to this part.
14         (18)(12)  Furnish copies of personnel records for
15  employees affiliated with such facility, to any other facility
16  licensed by this state requesting this information pursuant to
17  this part.  Such information contained in the records may
18  include, but is not limited to, disciplinary matters and any
19  reason for termination. Any facility releasing such records
20  pursuant to this part shall be considered to be acting in good
21  faith and may not be held liable for information contained in
22  such records, absent a showing that the facility maliciously
23  falsified such records.
24         (19)(13)  Publicly display a poster provided by the
25  agency containing the names, addresses, and telephone numbers
26  for the state's abuse hotline, the State Long-Term Care
27  Ombudsman, the Agency for Health Care Administration consumer
28  hotline, the Advocacy Center for Persons with Disabilities,
29  the Florida Statewide Advocacy Council, and the Medicaid Fraud
30  Control Unit, with a clear description of the assistance to be
31  expected from each.
                                  55
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (20)  Submit to the agency information specified in s.
  2  400.071(2) relating to management companies within 30 days
  3  after the effective date of a management agreement.
  4         (21)  Submit to the agency by February 1 and August 1
  5  of each year and as otherwise requested by the agency
  6  information regarding staff-to-resident ratios, staff
  7  turnover, and staff stability of the facility, with respect to
  8  certified nursing assistants, registered nurses, licensed
  9  nurses, the director of nursing, and the facility
10  administrator. For purposes of this reporting:
11         (a)  Staff-to-resident ratio is based on the
12  requirements established pursuant to s. 400.23(3)(a) and
13  applicable rules.
14         (b)  Staff turnover shall be calculated from the most
15  recent 12-month period ending on the 1st workday of the most
16  recent calendar quarter prior to submission of the
17  information. The turnover rate must be computed quarterly,
18  with the annual rate being the cumulative sum of the quarterly
19  rates. The formula to determine the turnover rate shall be the
20  total number of terminations or separations of nonprobationary
21  employees from employment divided by the total number of staff
22  employed at the end of the period for which the rate is
23  computed, expressed as a percent.
24         (c)  Staff turnover shall be reported as one total
25  figure including staff of all classes and shall be reported by
26  the following categories: certified nursing assistants,
27  dietitians, licensed practical nurses, registered nurses,
28  noncertified nursing assistants working for the allowed 4
29  months before certification, therapists, social services
30  staff, recreation staff, activity staff, administrative
31  support personnel, managers, dietary aides, cooks, maintenance
                                  56
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  personnel, custodial personnel, and any other category of
  2  staff necessary for the facility.
  3         (d)  The formula for determining staff stability is the
  4  total number of employees that have been employed for over 12
  5  months divided by the total number of employees employed at
  6  the end of the most recent calendar quarter, expressed as a
  7  percentage.
  8         (22)  Report monthly the number of vacant beds in the
  9  facility that are available for resident occupancy on the day
10  the information is reported.
11         (23)  Submit to the agency copies of any settlement,
12  civil verdict, or judgment relating to medical negligence,
13  violation of residents' rights, or wrongful death. Copies must
14  be submitted to the agency within 30 days after the filing
15  with the clerk of the court. The information required in this
16  subsection shall be maintained in the facility's licensure
17  file and in an agency database which is available as a public
18  record.
19
20  Facilities that have been awarded a Gold Seal under the
21  program established in s. 400.235 may develop a plan to
22  provide certified nursing assistant training as prescribed by
23  federal regulations and state rules and may apply to the
24  agency for approval of its program.
25         Section 21.  Section 400.1413, Florida Statutes, is
26  created to read:
27         400.1413  Internal risk management and quality
28  assurance program.--
29         (1)  Every licensed facility shall, as part of its
30  administrative functions, establish an internal risk
31  management and quality assurance program, the purpose of which
                                  57
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  is to assess patient care practices, review and act on
  2  facility quality indicators, maintain and review facility
  3  incident reports, correct deficiencies cited by the agency,
  4  resolve resident grievances, and develop plans of action to
  5  correct and respond quickly to identified quality
  6  deficiencies.
  7         (2)  The internal risk management and quality assurance
  8  program is the responsibility of the facility administrator.
  9         (3)  The owner of the nursing home shall establish
10  policies and procedures to implement the internal risk
11  management and quality assurance program, which includes:
12         (a)  The investigation and analysis of the frequency
13  and causes of general categories and specific types of adverse
14  incidents involving or affecting residents.
15         (b)  The development of appropriate measures to
16  minimize the risk of adverse incidents to residents,
17  including, but not limited to:
18         1.  Risk management and risk prevention education and
19  training of all nonphysician personnel as follows:
20         a.  Such education and training of all nonphysician
21  personnel as part of their initial orientation; and
22         b.  At least 3 hours of such education and training
23  annually for all nonphysician personnel in both clinical areas
24  and provision of resident care.
25         2.  The analysis of resident grievances that relate to
26  resident care and the quality of clinical services.
27         3.  The development and implementation of an incident
28  reporting system based upon the affirmative duty of all health
29  care providers and all agents and employees of the facility to
30  report adverse incidents to the risk manager.
31
                                  58
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (4)  In addition to the program mandated by this
  2  section, other innovative approaches intended to reduce the
  3  frequency and severity of adverse incidents to residents and
  4  violations of residents' rights shall be encouraged and their
  5  implementation and operation facilitated.
  6         (5)  Each internal risk management and quality
  7  assurance program shall include the use of incident reports to
  8  be filed with the risk manager and the facility administrator.
  9  The risk manager shall have free access to all medical records
10  of the licensed facility. As a part of each internal risk
11  management and quality assurance program, the incident reports
12  shall be used to develop categories of incidents which
13  identify problem areas. Once identified, procedures shall be
14  adjusted to correct the problem areas.
15         (6)  The nursing home shall report adverse incidents to
16  the agency in a timely manner.
17         (7)  For purposes of report to the agency pursuant to
18  this section, the term "adverse incident" means:
19         (a)  An event over which facility personnel could
20  exercise control and which is associated in whole or in part
21  with clinical intervention, rather than the condition for
22  which such intervention occurred, and which results in one of
23  the following injuries:
24         1.  Death.
25         2.  Brain or spinal damage.
26         3.  Permanent disfigurement.
27         4.  Fracture or dislocation of bones or joints.
28         5.  A resulting limitation of neurological, physical,
29  or sensory function.
30
31
                                  59
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         6.  Any condition that required medical attention to
  2  which the patient has not given his or her informed consent,
  3  including failure to honor advanced directives.
  4         7.  Any condition that required the transfer of the
  5  patient, within or outside the facility, to a unit providing a
  6  more acute level of care due to the adverse incident, rather
  7  than the resident's condition prior to the adverse incident.
  8         (b)  Abuse, neglect, or exploitation as defined in s.
  9  415.102.
10         (c)  Abuse, neglect, or harm as defined in s. 39.01.
11         (d)  Resident elopement.
12         (e)  Events reported to law enforcement.
13         (8)(a)  Each licensed facility subject to this section
14  shall submit an annual report to the agency on a form
15  developed by the agency summarizing the incident reports that
16  have been filed in the facility for that year. The report
17  shall include:
18         1.  The total number of adverse incidents.
19         2.  A listing, by category, of the types of adverse
20  incidents and the number of incidents occurring within each
21  category.
22         3.  Types of liability claims filed based on an adverse
23  incident or reportable injury.
24         4.  Disciplinary action taken against staff,
25  categorized by type of staff involved.
26         5.  The facility's failure to comply with state minimum
27  staffing requirements.
28         (b)  The information reported to the agency pursuant to
29  paragraph (a) which relates to persons licensed under chapter
30  458, chapter 459, chapter 461, chapter 464, or chapter 466
31  shall be reviewed by the agency. The agency shall determine
                                  60
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  whether any of the incidents potentially involved conduct by a
  2  health care professional who is subject to disciplinary
  3  action, in which case the provisions of s. 456.073 shall
  4  apply.
  5         (c)  The report submitted to the agency shall also
  6  contain the name of the person responsible for risk management
  7  in the facility.
  8         (9)(a)  The licensed facility shall notify the agency
  9  within 1 business day after the occurrence of any of the
10  following:
11         1.  The death of a patient.
12         2.  Alleged mistreatment of a patient by a certified
13  nursing assistant or licensed nurse.
14         3.  Resident elopement.
15         4.  Events reported to law enforcement.
16         5.  The facility's failure to comply with state minimum
17  staffing requirements.
18         (b)  The notification must be made in writing and be
19  provided by facsimile device or overnight mail delivery. The
20  notification must include information regarding the identity
21  of the affected resident, the type of adverse incident, the
22  initiation of an investigation by the facility, and whether
23  the events causing or resulting in the adverse incident
24  represent a potential risk to other residents.
25         (c)  The agency may investigate, as it deems
26  appropriate, any such incident and prescribe measures that
27  must or may be taken in response to the incident. The agency
28  shall review each incident and determine whether it
29  potentially involved conduct by the health care professional
30  who is subject to disciplinary action, in which case the
31  provisions of s. 456.073 shall apply.
                                  61
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (10)  The agency shall have access to all licensed
  2  facility records necessary to carry out the provisions of this
  3  section.
  4         (11)  The agency shall review, as part of its licensure
  5  inspection process, the internal risk management and quality
  6  assurance program at each licensed facility regulated by this
  7  section to determine whether the program meets standards
  8  established in statutes and rules, whether the program is
  9  being conducted in a manner designed to reduce the incidence
10  and severity of adverse incidents, and whether the facility is
11  reporting adverse incidents as required.
12         (12)  There shall be no monetary liability on the part
13  of, and no cause of action for damages shall arise against,
14  any risk manager licensed under s. 395.10974, for the
15  implementation and oversight of the internal risk management
16  and quality assurance program in a facility licensed under
17  this chapter as required by this section, or for any act or
18  proceeding undertaken or performed within the scope of the
19  functions of such internal risk management and quality
20  assurance program, if the risk manager acts without
21  intentional fraud.
22         (13)  If the agency, through its receipt of the annual
23  reports prescribed in this chapter or through any
24  investigation, has a reasonable belief that conduct by a staff
25  member or employee of a licensed facility is grounds for
26  disciplinary action by the appropriate regulatory board, the
27  agency shall report this fact to such regulatory board.
28         Section 22.  Section 400.1415, Florida Statutes, is
29  amended to read:
30         400.1415  Patient records; penalties for alteration.--
31
                                  62
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (1)  Any person who fraudulently alters, defaces, or
  2  falsifies any medical or other nursing home record, or causes
  3  or procures any of these offenses to be committed, commits a
  4  misdemeanor of the second degree, punishable as provided in s.
  5  775.082 or 775.083. Any such offense at a facility shall be
  6  subject to a class I citation and fine pursuant to s.
  7  400.23(8). Any person authorized under s. 400.19 to enter a
  8  nursing home facility who detects or reasonably suspects such
  9  offense has occurred must immediately report such information
10  to the local law enforcement agency and state attorney.
11         (2)  A conviction under subsection (1) is also grounds
12  for restriction, suspension, or termination of license
13  privileges.
14         (3)  The director of nursing and the licensed nursing
15  home administrator at the facility shall be referred to their
16  respective licensure boards for disciplinary review when a
17  staff person is convicted under subsection (1).
18         (4)  A conviction or finding by the agency under
19  subsection (1) is also grounds for an immediate moratorium on
20  admissions.
21         Section 23.  Subsection (4) of section 400.19, Florida
22  Statutes, is amended to read:
23         400.19  Right of entry and inspection.--
24         (4)  The agency shall conduct unannounced onsite
25  facility reviews following written verification of licensee
26  noncompliance in instances in which a long-term care ombudsman
27  council, pursuant to ss. 400.0071 and 400.0075, has received a
28  complaint and has documented deficiencies in resident care or
29  in the physical plant of the facility that threaten the
30  health, safety, or security of residents, or when the agency
31  documents through inspection that conditions in a facility
                                  63
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  present a direct or indirect threat to the health, safety, or
  2  security of residents. However, the agency shall conduct four
  3  or more unannounced onsite reviews every 3 months to within a
  4  12-month period of each facility while it which has a
  5  conditional licensure status. Deficiencies related to physical
  6  plant do not require followup reviews after the agency has
  7  determined that correction of the deficiency has been
  8  accomplished and that the correction is of the nature that
  9  continued compliance can be reasonably expected.
10         Section 24.  Paragraph (a) of subsection (5) of section
11  400.191, Florida Statutes, is amended to read:
12         400.191  Availability, distribution, and posting of
13  reports and records.--
14         (5)  Every nursing home facility licensee shall:
15         (a)  Post, in a sufficient number of prominent
16  positions in the nursing home so as to be accessible to all
17  residents and to the general public:,
18         1.  A concise summary of the last inspection report
19  pertaining to the nursing home and issued by the agency, with
20  references to the page numbers of the full reports, noting any
21  deficiencies found by the agency and the actions taken by the
22  licensee to rectify such deficiencies and indicating in such
23  summaries where the full reports may be inspected in the
24  nursing home.
25         2.  A copy of the most recent version of the Florida
26  Nursing Home Guide Watch List.
27         Section 25.  Subsection (2) of section 400.211, Florida
28  Statutes, is amended, and subsection (4) is added to section,
29  to read:
30         400.211  Persons employed as nursing assistants;
31  certification requirement.--
                                  64
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (2)  The following categories of persons who are not
  2  certified as nursing assistants under part II of chapter 464
  3  may be employed as a nursing assistant by a nursing facility
  4  for a period of 4 months:
  5         (a)  Persons who are enrolled in, or have completed, a
  6  state-approved nursing assistant program; or
  7         (b)  Persons who have been positively verified as
  8  actively certified and on the registry in another state and
  9  who have not been found to have been convicted of or entered a
10  plea of nolo contendere or guilty to abuse, neglect, or
11  exploitation in another state, regardless of adjudication with
12  no findings of abuse; or
13         (c)  Persons who have preliminarily passed the state's
14  certification exam.
15
16  The certification requirement must be met within 4 months
17  after initial employment as a nursing assistant in a licensed
18  nursing facility.
19         (4)  When employed in a nursing home facility for a
20  12-month period or longer, a certified nursing assistant, to
21  maintain certification, shall submit to a performance review
22  every 12 months and shall be given regular inservice education
23  based on the outcome of such review. The inservice training
24  shall be provided by the facility and must:
25         (a)  Be sufficient to ensure the continuing competence
26  of the certified nursing assistant, but must be no less than
27  18 hours per year.
28         (b)  Include, at a minimum:
29         1.  Assisting residents with eating and proper feeding
30  techniques.
31         2.  Principles of adequate hydration.
                                  65
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         3.  Assisting and responding to the cognitively
  2  impaired residents or residents with difficult behaviors.
  3         4.  Caring for resident at the end of life.
  4         5.  Recognizing changes that place a resident at risk
  5  for pressure ulcers and falls.
  6         (c)  Address areas of weakness as determined in the
  7  certified nursing assistant's performance reviews and may
  8  address the special needs of residents as determined by the
  9  nursing home facility staff.
10         Section 26.  Subsections (2), (3), (7), and (8) of
11  section 400.23, Florida Statutes, are amended, and subsection
12  (10) is added to said section, to read:
13         400.23  Rules; evaluation and deficiencies; licensure
14  status.--
15         (2)  Pursuant to the intention of the Legislature, the
16  agency, in consultation with the Department of Health and the
17  Department of Elderly Affairs, shall adopt and enforce rules
18  to implement this part, which shall include reasonable and
19  fair standards and procedures relating criteria in relation
20  to:
21         (a)  The location and construction of the facility;
22  including fire and life safety, plumbing, heating, cooling,
23  lighting, ventilation, and other housing conditions which will
24  ensure the health, safety, and comfort of residents, including
25  an adequate call system.  The agency shall establish standards
26  for facilities and equipment to increase the extent to which
27  new facilities and a new wing or floor added to an existing
28  facility after July 1, 1999, are structurally capable of
29  serving as shelters only for residents, staff, and families of
30  residents and staff, and equipped to be self-supporting during
31  and immediately following disasters.  The agency shall work
                                  66
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  with facilities licensed under this part and report to the
  2  Governor and Legislature by April 1, 1999, its recommendations
  3  for cost-effective renovation standards to be applied to
  4  existing facilities. In making such rules, the agency shall be
  5  guided by criteria recommended by nationally recognized
  6  reputable professional groups and associations with knowledge
  7  of such subject matters. The agency shall update or revise
  8  such criteria as the need arises. All nursing homes must
  9  comply with those lifesafety code requirements and building
10  code standards applicable at the time of approval of their
11  construction plans. The agency may require alterations to a
12  building if it determines that an existing condition
13  constitutes a distinct hazard to life, health, or safety. The
14  agency shall adopt fair and reasonable rules setting forth
15  conditions under which existing facilities undergoing
16  additions, alterations, conversions, renovations, or repairs
17  shall be required to comply with the most recent updated or
18  revised standards.
19         (b)  The number and qualifications of all personnel,
20  including management, medical, nursing, and other professional
21  personnel, and nursing assistants, orderlies, and support
22  personnel, having responsibility for any part of the care
23  given residents.
24         (c)  All sanitary conditions within the facility and
25  its surroundings, including water supply, sewage disposal,
26  food handling, and general hygiene which will ensure the
27  health and comfort of residents.
28         (d)  The equipment essential to the health and welfare
29  of the residents.
30         (e)  A uniform accounting system.
31
                                  67
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (f)  The care, treatment, and maintenance of residents
  2  and measurement of the quality and adequacy thereof,
  3  consistent with based on rules developed under this chapter
  4  and the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No.
  5  100-203) (December 22, 1987), Title IV (Medicare, Medicaid,
  6  and Other Health-Related Programs), Subtitle C (Nursing Home
  7  Reform), as amended.
  8         (g)  The preparation and annual update of a
  9  comprehensive emergency management plan.  The agency shall
10  adopt rules establishing minimum criteria for the plan after
11  consultation with the Department of Community Affairs.  At a
12  minimum, the rules must provide for plan components that
13  address emergency evacuation transportation; adequate
14  sheltering arrangements; postdisaster activities, including
15  emergency power, food, and water; postdisaster transportation;
16  supplies; staffing; emergency equipment; individual
17  identification of residents and transfer of records; and
18  responding to family inquiries.  The comprehensive emergency
19  management plan is subject to review and approval by the local
20  emergency management agency.  During its review, the local
21  emergency management agency shall ensure that the following
22  agencies, at a minimum, are given the opportunity to review
23  the plan:  the Department of Elderly Affairs, the Department
24  of Health, the Agency for Health Care Administration, and the
25  Department of Community Affairs.  Also, appropriate volunteer
26  organizations must be given the opportunity to review the
27  plan.  The local emergency management agency shall complete
28  its review within 60 days and either approve the plan or
29  advise the facility of necessary revisions.
30         (h)  The implementation of the consumer satisfaction
31  surveys required under s. 400.0225; the availability,
                                  68
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  distribution, and posting of reports and records required
  2  under s. 400.191; and the Gold Seal program established under
  3  s. 400.235.
  4         (i)  An adequate quality assurance process and risk
  5  management procedure.
  6         (3)(a)1.  The agency shall adopt rules providing for
  7  the minimum staffing requirements for direct care staff
  8  nursing homes. These requirements shall include, for each
  9  nursing home facility, a minimum certified nursing assistant
10  staffing of 2.9 hours per resident per day, with no single
11  shift having less than one certified nursing assistant per 15
12  residents; and a minimum licensed nursing staffing of 1.0 hour
13  per resident per day, with no single shift having less than
14  one licensed nurse per 40 residents and 0.5 hours of
15  registered nurse staffing per resident per day. Each nursing
16  hame shall document, including evening and night shifts and
17  weekends. Agency rules shall specify requirements for
18  documentation of compliance with staffing standards and post
19  daily, sanctions for violation of such standards, and
20  requirements for daily posting of the names of staff on duty
21  for the benefit of facility residents and the public. Failure
22  to provide such posting daily constitutes a class III
23  deficiency.
24         2.  The agency shall recognize the use of licensed
25  nurses for compliance with minimum staffing requirements for
26  certified nursing assistants, provided that the facility
27  otherwise meets the minimum staffing requirements for licensed
28  nurses and that the licensed nurses so recognized are
29  performing the duties of a certified nursing assistant. Unless
30  otherwise approved by the agency, licensed nurses counted
31  towards the minimum staffing requirements for certified
                                  69
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  nursing assistants must exclusively perform the duties of a
  2  certified nursing assistant for the entire shift and shall not
  3  also be counted towards the minimum staffing requirements for
  4  licensed nurses.
  5         3.  If the agency approved a facility's request to use
  6  a licensed nurse to perform both licensed nursing and
  7  certified nursing assistant duties, the facility must allocate
  8  the amount of staff time specifically spent on certified
  9  nursing assistant duties for the purpose of documenting
10  compliance with minimum staffing requirements for certified
11  and licensed nursing staff. In no event may the hours of a
12  licensed nurse with dual job responsibilities be counted
13  twice.
14         4.  A nursing facility that has failed to comply with
15  state minimum staffing requirements 2 days out of any 7-day
16  period shall be prohibited from accepting new admissions until
17  such time as the facility has achieved the minimum staffing
18  requirements for a period of 7 consecutive days. For purposes
19  of this subparagraph, any person who was a resident of the
20  facility and was absent from the facility for the purpose of
21  receiving medical care at a separate location or was on a
22  leave of absence shall not be considered a new admission.
23  Failure to impose such an admissions moratorium constitutes a
24  class I deficiency.
25         (b)  The agency shall adopt rules to allow properly
26  trained staff of a nursing facility, in addition to certified
27  nursing assistants and licensed nurses, to assist residents
28  with eating. The rules shall specify the minimum training
29  requirements and shall specify the physiological conditions or
30  disorders of residents which would necessitate that the eating
31  assistance be provided by nursing personnel of the facility.
                                  70
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  Nonnursing staff providing eating assistance to residents
  2  under the provisions of this subsection shall not count
  3  towards compliance with minimum staffing standards.
  4         (c)  Licensed practical nurses licensed under chapter
  5  464 who are providing nursing services in nursing home
  6  facilities under this part may supervise the activities of
  7  other licensed practical nurses, certified nursing assistants,
  8  and other unlicensed personnel providing services in such
  9  facilities in accordance with rules adopted by the Board of
10  Nursing.
11         (7)  The agency shall, at least every 15 months,
12  evaluate all nursing home facilities and make a determination
13  as to the degree of compliance by each licensee with the
14  established rules adopted under this part as a basis for
15  assigning a licensure status to that facility.  The agency
16  shall base its evaluation on the most recent inspection
17  report, taking into consideration findings from other official
18  reports, surveys, interviews, investigations, and inspections.
19  The agency shall assign a licensure status of standard or
20  conditional to each nursing home.
21         (a)  A standard licensure status means that a facility
22  has no class I or class II deficiencies, has corrected all
23  class III deficiencies within the time established by the
24  agency, and is in substantial compliance at the time of the
25  survey with criteria established under this part, with rules
26  adopted by the agency, and, if applicable, with rules adopted
27  under the Omnibus Budget Reconciliation Act of 1987 (Pub. L.
28  No. 100-203) (December 22, 1987), Title IV (Medicare,
29  Medicaid, and Other Health-Related Programs), Subtitle C
30  (Nursing Home Reform), as amended.
31
                                  71
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (b)  A conditional licensure status means that a
  2  facility, due to the presence of one or more class I or class
  3  II deficiencies, or class III deficiencies not corrected
  4  within the time established by the agency, is not in
  5  substantial compliance at the time of the survey with criteria
  6  established under this part, with rules adopted by the agency,
  7  or, if applicable, with rules adopted under the Omnibus Budget
  8  Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22,
  9  1987), Title IV (Medicare, Medicaid, and Other Health-Related
10  Programs), Subtitle C (Nursing Home Reform), as amended. If
11  the facility has no class I, class II, or class III
12  deficiencies comes into substantial compliance at the time of
13  the followup survey, a standard licensure status may be
14  assigned.
15         (c)  In evaluating the overall quality of care and
16  services and determining whether the facility will receive a
17  conditional or standard license, the agency shall consider the
18  needs and limitations of residents in the facility and the
19  results of interviews and surveys of a representative sampling
20  of residents, families of residents, ombudsman council members
21  in the planning and service area in which the facility is
22  located, guardians of residents, and staff of the nursing home
23  facility.
24         (d)  The current licensure status of each facility must
25  be indicated in bold print on the face of the license.  A list
26  of the deficiencies of the facility shall be posted in a
27  prominent place that is in clear and unobstructed public view
28  at or near the place where residents are being admitted to
29  that facility. Licensees receiving a conditional licensure
30  status for a facility shall prepare, within 10 working days
31  after receiving notice of deficiencies, a plan for correction
                                  72
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  of all deficiencies and shall submit the plan to the agency
  2  for approval. Correction of all deficiencies, within the
  3  period approved by the agency, shall result in termination of
  4  the conditional licensure status.  Failure to correct the
  5  deficiencies within a reasonable period approved by the agency
  6  shall be grounds for the imposition of sanctions pursuant to
  7  this part.
  8         (e)  Each licensee shall post its license in a
  9  prominent place that is in clear and unobstructed public view
10  at or near the place where residents are being admitted to the
11  facility.
12         (f)  Not later than January 1, 1994, The agency shall
13  adopt rules that:
14         1.  Establish uniform procedures for the evaluation of
15  facilities.
16         2.  Provide criteria in the areas referenced in
17  paragraph (c).
18         3.  Address other areas necessary for carrying out the
19  intent of this section.
20         (8)  The agency shall adopt rules to provide that, when
21  the criteria established under subsection (2) are not met,
22  such deficiencies shall be classified according to the nature
23  and scope of the deficiency. The scope of the deficiency shall
24  be cited as isolated, patterned, or widespread. An isolated
25  deficiency is a deficiency affecting one or a very limited
26  number of residents or involving one or a very limited number
27  of staff, or a situation that occurred only occasionally or in
28  a very limited number of locations. A patterned deficiency is
29  a deficiency where more than a very limited number of
30  residents are affected or more than a very limited number of
31  staff are involved, or the same resident or residents have
                                  73
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  been affected by repeated occurrences of the same deficient
  2  practice, or a situation that has occurred in several
  3  locations; provided that the effect of the deficient practice
  4  is not found to be pervasive throughout the facility. A
  5  widespread deficiency is a deficiency in which the problems
  6  causing the deficiency are pervasive throughout the facility
  7  or represent systemic failure that affected or has the
  8  potential to affect a large portion of all of the facility's
  9  residents. The agency shall indicate the classification on the
10  face of the notice of deficiencies as follows:
11         (a)  Class I deficiencies are those which the agency
12  determines present a situation in which immediate corrective
13  action is necessary because the facility's noncompliance has
14  caused, or is likely to cause, serious injury, harm,
15  impairment, or death to a resident receiving care in a
16  facility an imminent danger to the residents or guests of the
17  nursing home facility or a substantial probability that death
18  or serious physical harm would result therefrom. The condition
19  or practice constituting a class I violation shall be abated
20  or eliminated immediately, unless a fixed period of time, as
21  determined by the agency, is required for correction.
22  Notwithstanding s. 400.121(2), A class I deficiency is subject
23  to a civil penalty of $5,000 for an isolated deficiency,
24  $10,000 for a patterned deficiency, and $15,000 for a
25  widespread deficiency in an amount not less than $5,000 and
26  not exceeding $25,000 for each and every deficiency. A fine
27  shall may be levied notwithstanding the correction of the
28  deficiency.
29         (b)  Class II deficiencies are those which the agency
30  determines have compromised the resident's ability to maintain
31  or reach his or her highest practicable physical, mental, and
                                  74
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  psychosocial well-being as defined by an accurate and
  2  comprehensive resident assessment, plan of care, and provision
  3  of services have a direct or immediate relationship to the
  4  health, safety, or security of the nursing home facility
  5  residents, other than class I deficiencies.  A class II
  6  deficiency is subject to a civil penalty of $2,500 for an
  7  isolated deficiency, $5,000 for a patterned deficiency, and
  8  $7,500 for a widespread deficiency in an amount not less than
  9  $1,000 and not exceeding $10,000 for each and every
10  deficiency.  A citation for a class II deficiency shall
11  specify the time within which the deficiency is required to be
12  corrected.  If a class II deficiency is corrected within the
13  time specified, no civil penalty shall be imposed, unless it
14  is a repeated offense. A fine shall be levied notwithstanding
15  the correction of the deficiency.
16         (c)  Class III deficiencies are those which the agency
17  determines result in no more than minimal physical, mental, or
18  psychosocial discomfort to the resident or have minimal
19  potential to compromise the resident's ability to maintain or
20  reach his or her highest practical physical, mental, or
21  psychosocial well-being as defined by an accurate and
22  comprehensive resident assessment, plan of care, and provision
23  of services to have an indirect or potential relationship to
24  the health, safety, or security of the nursing home facility
25  residents, other than class I or class II deficiencies. A
26  class III deficiency shall be subject to a civil penalty of
27  $1,000 for an isolated deficiency, $2,000 for a patterned
28  deficiency, and $3,000 for a widespread deficiency not less
29  than $500 and not exceeding $2,500 for each and every
30  deficiency.  A citation for a class III deficiency shall
31  specify the time within which the deficiency is required to be
                                  75
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  corrected.  If a class III deficiency is corrected within the
  2  time specified, no civil penalty shall be imposed, unless it
  3  is a repeated offense.
  4         (d)  Class IV deficiencies are those which the agency
  5  determines involve no actual harm but do not constitute a
  6  class III deficiency. A class IV deficiency shall be
  7  documented in the agency's survey results and may be required
  8  to be corrected within a time specified by the agency. No
  9  civil penalty shall be imposed. If the class IV deficiency is
10  an isolated deficiency, no plan of correction is required.
11
12  The fine amount shall be doubled for each class I or class II
13  deficiency if the facility was previously cited for one or
14  more class I or class II deficiencies during or since its last
15  annual inspection.
16         (10)  The agency must submit a report annually to the
17  Legislature that summarizes the information regarding
18  staff-to-resident ratios, staff turnover, and staff stability
19  reported by nursing home facilities pursuant to s.
20  400.141(21).
21         Section 27.  Subsection (3) of section 400.241, Florida
22  Statutes, is amended to read:
23         400.241  Prohibited acts; penalties for violations.--
24         (3)  It is unlawful for any person, long-term care
25  facility, or other entity to willfully interfere with the
26  unannounced inspections mandated by s. 400.0073 or s.
27  400.19(3). Alerting or advising a facility of the actual or
28  approximate date of such inspection shall be a per se
29  violation of this subsection.
30         (4)  A violation of any provision of this part or of
31  any minimum standard, rule, or regulation adopted pursuant
                                  76
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  thereto constitutes a misdemeanor of the second degree,
  2  punishable as provided in s. 775.082 or s. 775.083.  Each day
  3  of a continuing violation shall be considered a separate
  4  offense.
  5         Section 28.  Paragraph (b) of subsection (3) of section
  6  400.407, Florida Statutes, is 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         (b)  An extended congregate care license shall be
17  issued to facilities providing, directly or through contract,
18  services beyond those authorized in paragraph (a), including
19  acts performed pursuant to part I of chapter 464 by persons
20  licensed thereunder, and supportive services defined by rule
21  to persons who otherwise would be disqualified from continued
22  residence in a facility licensed under this part.
23         1.  In order for extended congregate care services to
24  be provided in a facility licensed under this part, the agency
25  must first determine that all requirements established in law
26  and rule are met and must specifically designate, on the
27  facility's license, that such services may be provided and
28  whether the designation applies to all or part of a facility.
29  Such designation may be made at the time of initial licensure
30  or biennial relicensure, or upon request in writing by a
31  licensee under this part. Notification of approval or denial
                                  77
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  of such request shall be made within 90 days after receipt of
  2  such request and all necessary documentation. Existing
  3  facilities qualifying to provide extended congregate care
  4  services must have maintained a standard license and may not
  5  have been subject to administrative sanctions during the
  6  previous 2 years, or since initial licensure if the facility
  7  has been licensed for less than 2 years, for any of the
  8  following reasons:
  9         a.  A class I or class II violation;
10         b.  Three or more repeat or recurring class III
11  violations of identical or similar resident care standards as
12  specified in rule from which a pattern of noncompliance is
13  found by the agency;
14         c.  Three or more class III violations that were not
15  corrected in accordance with the corrective action plan
16  approved by the agency;
17         d.  Violation of resident care standards resulting in a
18  requirement to employ the services of a consultant pharmacist
19  or consultant dietitian;
20         e.  Denial, suspension, or revocation of a license for
21  another facility under this part in which the applicant for an
22  extended congregate care license has at least 25 percent
23  ownership interest; or
24         f.  Imposition of a moratorium on admissions or
25  initiation of injunctive proceedings.
26         2.  Facilities that are licensed to provide extended
27  congregate care services shall maintain a written progress
28  report on each person who receives such services, which report
29  describes the type, amount, duration, scope, and outcome of
30  services that are rendered and the general status of the
31  resident's health.  A registered nurse, or appropriate
                                  78
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  designee, representing the agency shall visit such facilities
  2  at least two times a year to monitor residents who are
  3  receiving extended congregate care services and to determine
  4  if the facility is in compliance with this part and with rules
  5  that relate to extended congregate care. One of these visits
  6  may be in conjunction with the regular biennial survey.  The
  7  monitoring visits may be provided through contractual
  8  arrangements with appropriate community agencies.  A
  9  registered nurse shall serve as part of the team that
10  biennially inspects such facility. The agency may waive one of
11  the required yearly monitoring visits for a facility that has
12  been licensed for at least 24 months to provide extended
13  congregate care services, if, during the biennial inspection,
14  the registered nurse determines that extended congregate care
15  services are being provided appropriately, and if the facility
16  has no class I or class II violations and no uncorrected class
17  III violations. Before such decision is made, the agency shall
18  consult with the long-term care ombudsman council for the area
19  in which the facility is located to determine if any
20  complaints have been made and substantiated about the quality
21  of services or care.  The agency may not waive one of the
22  required yearly monitoring visits if complaints have been made
23  and substantiated.
24         3.  Facilities that are licensed to provide extended
25  congregate care services shall:
26         a.  Demonstrate the capability to meet unanticipated
27  resident service needs.
28         b.  Offer a physical environment that promotes a
29  homelike setting, provides for resident privacy, promotes
30  resident independence, and allows sufficient congregate space
31  as defined by rule.
                                  79
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         c.  Have sufficient staff available, taking into
  2  account the physical plant and firesafety features of the
  3  building, to assist with the evacuation of residents in an
  4  emergency, as necessary.
  5         d.  Adopt and follow policies and procedures that
  6  maximize resident independence, dignity, choice, and
  7  decisionmaking to permit residents to age in place to the
  8  extent possible, so that moves due to changes in functional
  9  status are minimized or avoided.
10         e.  Allow residents or, if applicable, a resident's
11  representative, designee, surrogate, guardian, or attorney in
12  fact to make a variety of personal choices, participate in
13  developing service plans, and share responsibility in
14  decisionmaking.
15         f.  Implement the concept of managed risk.
16         g.  Provide, either directly or through contract, the
17  services of a person licensed pursuant to part I of chapter
18  464.
19         h.  In addition to the training mandated in s. 400.452,
20  provide specialized training as defined by rule for facility
21  staff.
22         4.  Facilities licensed to provide extended congregate
23  care services are exempt from the criteria for continued
24  residency as set forth in rules adopted under s. 400.441.
25  Facilities so licensed shall adopt their own requirements
26  within guidelines for continued residency set forth by the
27  department in rule.  However, such facilities may not serve
28  residents who require 24-hour nursing supervision. Facilities
29  licensed to provide extended congregate care services shall
30  provide each resident with a written copy of facility policies
31  governing admission and retention.
                                  80
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         5.  The primary purpose of extended congregate care
  2  services is to allow residents, as they become more impaired,
  3  the option of remaining in a familiar setting from which they
  4  would otherwise be disqualified for continued residency.  A
  5  facility licensed to provide extended congregate care services
  6  may also admit an individual who exceeds the admission
  7  criteria for a facility with a standard license, if the
  8  individual is determined appropriate for admission to the
  9  extended congregate care facility.
10         6.  Before admission of an individual to a facility
11  licensed to provide extended congregate care services, the
12  individual must undergo a medical examination as provided in
13  s. 400.426(4) and the facility must develop a preliminary
14  service plan for the individual.
15         7.  When a facility can no longer provide or arrange
16  for services in accordance with the resident's service plan
17  and needs and the facility's policy, the facility shall make
18  arrangements for relocating the person in accordance with s.
19  400.428(1)(k).
20         8.  Failure to provide extended congregate care
21  services may result in denial of extended congregate care
22  license renewal.
23         9.  No later than January 1 of each year, the
24  department, in consultation with the agency, shall prepare and
25  submit to the Governor, the President of the Senate, the
26  Speaker of the House of Representatives, and the chairs of
27  appropriate legislative committees, a report on the status of,
28  and recommendations related to, extended congregate care
29  services. The status report must include, but need not be
30  limited to, the following information:
31
                                  81
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         a.  A description of the facilities licensed to provide
  2  such services, including total number of beds licensed under
  3  this part.
  4         b.  The number and characteristics of residents
  5  receiving such services.
  6         c.  The types of services rendered that could not be
  7  provided through a standard license.
  8         d.  An analysis of deficiencies cited during biennial
  9  inspections.
10         e.  The number of residents who required extended
11  congregate care services at admission and the source of
12  admission.
13         f.  Recommendations for statutory or regulatory
14  changes.
15         g.  The availability of extended congregate care to
16  state clients residing in facilities licensed under this part
17  and in need of additional services, and recommendations for
18  appropriations to subsidize extended congregate care services
19  for such persons.
20         h.  Such other information as the department considers
21  appropriate.
22         Section 29.  Subsections (4) through (11) of section
23  400.426, Florida Statutes, are renumbered as subsections (5)
24  through (12), respectively, and a new subsection (4) is added
25  to said section to read:
26         400.426  Appropriateness of placements; daily record of
27  care; examinations of residents.--
28         (4)  Each facility shall maintain in the care records
29  for each resident a daily chart of activities of daily living
30  care provided to a resident. This record must be completed
31  contemporaneously with the delivery of care by the caregiver
                                  82
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  and include the date of care and the initials or signature of
  2  the caregiver. These records shall be made available to the
  3  resident or his or her guardian upon request within 7 days of
  4  the request. These records shall be maintained by the facility
  5  for a period of not less than 5 years.
  6         Section 30.  Paragraph (k) of subsection (1) of section
  7  400.428, Florida Statutes, is amended to read:
  8         400.428  Resident bill of rights.--
  9         (1)  No resident of a facility shall be deprived of any
10  civil or legal rights, benefits, or privileges guaranteed by
11  law, the Constitution of the State of Florida, or the
12  Constitution of the United States as a resident of a facility.
13  Every resident of a facility shall have the right to:
14         (k)  At least 45 30 days' notice of relocation or
15  termination of residency from the facility unless, for medical
16  reasons, the resident is certified by a physician to require
17  an emergency relocation to a facility providing a more skilled
18  level of care or the resident engages in a pattern of conduct
19  that is harmful or offensive to other residents.  In the case
20  of a resident who has been adjudicated mentally incapacitated,
21  the guardian shall be given at least 30 days' notice of a
22  nonemergency relocation or residency termination.  Reasons for
23  relocation shall be set forth in writing.  In order for a
24  facility to terminate the residency of an individual without
25  notice as provided herein, the facility shall show good cause
26  in a court of competent jurisdiction.
27         Section 31.  Effective October 1, 2001, section
28  400.429, Florida Statutes, is amended to read:
29         (Substantial rewording of section. See
30         s. 400.429, F.S., for present text.)
31
                                  83
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         400.429  Civil actions to enforce assisted living
  2  facility residents' rights.--
  3         (1)(a)  Sections 400.429-400.430 provide the exclusive
  4  remedy for any civil action against an assisted living
  5  facility licensee, facility owner, facility administrator, or
  6  facility staff for recovery of damages from personal injury to
  7  or death of an assisted living facility resident arising out
  8  of negligence or deprivation of the rights specified in s.
  9  400.428. This exclusivity applies to and includes any claim
10  against an employee, agent, or other person for whose actions
11  the licensee is alleged to be vicariously liable and to any
12  management company, parent corporation, subsidiary, lessor, or
13  other person alleged to be directly liable to the resident or
14  vicariously liable for the actions of the licensee or its
15  agent.
16         (b)  However, ss. 400.429-400.430 do not prohibit a
17  resident or a resident's legal guardian from pursuing any
18  administrative remedy or injunctive relief available to a
19  resident as a result of a deprivation of the rights specified
20  in s. 400.028, whether or not the deprivation of rights
21  resulted in personal injury to, or the death of, the resident.
22  In any case where there is a deprivation of rights that does
23  not involve personal injury or death, including any claim for
24  injunctive relief or an administrative remedy, the prevailing
25  party shall be entitled to recover reasonable attorney's fees,
26  not to exceed $25,000, and costs from the nonprevailing party;
27  however, the joinder of a claim under this paragraph with a
28  claim under paragraph (a) shall not be the basis for an award
29  of fees or costs in such claim under paragraph (a). Except as
30  otherwise set forth in this paragraph, it is the intent of the
31  Legislature that this provision for attorney's fees be
                                  84
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  interpreted in a manner consistent with federal case law
  2  involving an action under Title VII of the Civil Rights Act.
  3         (c)  In addition to the remedies provided in ss.
  4  400.429-400.430, a resident, a resident's legal guardian, or
  5  the personal representative of the estate of a deceased
  6  resident may pursue an action under s. 415.1111. In addition,
  7  a resident or a resident's legal guardian shall be entitled to
  8  pursue a claim for damages or injunctive relief for those
  9  violations of s. 400.428 that do not result in personal injury
10  or death.
11         (2)  A claim pursuant to ss. 400.429-400.430 may be
12  brought by the resident or his or her legal guardian, by a
13  person or organization acting on behalf of a resident with the
14  consent of the resident or his or her guardian or, if the
15  resident has died, the personal representative of the estate
16  of the deceased resident.
17         (3)  In any claim brought pursuant to this ss.
18  400.429-400.430, the claimant has the burden of proving by a
19  preponderance of the evidence that:
20         (a)  Each defendant had an established duty to the
21  resident;
22         (b)  Each defendant breached that duty;
23         (c)  The breach of that duty is the proximate cause of
24  the personal injury to, or the death of, the resident, or the
25  proximate cause of the deprivation of the resident's rights
26  specified in s. 400.428; and
27         (d)  The proximate cause of the personal injury, death,
28  or deprivation of the resident's rights resulted in damages.
29         (4)  For purposes of ss. 400.429-400.430, a licensee
30  breaches its established duty to the resident when it fails to
31  provide a standard of care that a reasonably prudent assisted
                                  85
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  living facility would provide under the same or similar
  2  circumstances. A deprivation of the rights specified in s.
  3  400.428 or in any other standard or guidelines specified in
  4  this part or in any applicable administrative standard or
  5  guidelines of this state or a federal regulatory agency shall
  6  be evidence of a breach of duty by the licensee.
  7         (5)  A licensee shall not be liable for the medical
  8  negligence of any physician rendering care or treatment to the
  9  resident except for the services of a medical director as
10  required in this part.  Nothing in this subsection shall be
11  construed to protect a licensee from liability for failure to
12  provide a resident with appropriate observation, assessment,
13  nursing diagnosis, planning, intervention, and evaluation of
14  care by nursing staff.
15         (6)  An action for damages brought under ss.
16  400.429-400.430 must be commenced within 2 years after the
17  date on which the incident giving rise to the action occurred
18  or within 2 years after the date on which the incident is
19  discovered, or should have been discovered with the exercise
20  of due diligence. However, the action may not be commenced
21  later than 4 years after the date of the incident or
22  occurrence out of which the cause of action accrued. In any
23  action covered by this subsection in which it is shown that
24  fraud, concealment, or intentional misrepresentation of fact
25  prevented the discovery of the injury, the period of
26  limitation is extended forward 2 years from the time that the
27  injury is discovered, or should have been discovered with the
28  exercise of due diligence, but such period may not in any
29  event exceed 7 years after the date that the incident giving
30  rise to the injury occurred.
31         (7)  As used in ss. 400.429-400.430, the term:
                                  86
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (a)  "Claimant" means any person who is entitled to
  2  recover damages under this part.
  3         (b)  "Licensee" means the legal entity identified in
  4  the application for licensure under this part which entity is
  5  the licensed operator of the facility.
  6         (c)  "Medical expert" means a person duly and regularly
  7  engaged in the practice of his or her profession who holds a
  8  health care professional degree from a university or college
  9  and has had special professional training and experience, or a
10  person who possesses special health care knowledge or skill,
11  concerning the subject upon which he or she is called to
12  testify or provide an opinion.
13         (d)  "Resident" means a person who occupies a licensed
14  bed in a facility licensed under this part.
15         (8)  Sections 768.16-768.26 apply to a claim in which
16  the resident has died as a result of the facility's breach of
17  an established duty to the resident. In addition to any other
18  damages, the personal representative may recover on behalf of
19  the estate pursuant to ss. 768.16-768.26. The personal
20  representative may also recover on behalf of the estate
21  noneconomic damages for the resident's pain and suffering from
22  the time of injury until the time of death. The limitations
23  set forth in s. 768.21(8) do not apply to a claim maintained
24  under this section where a resident has died as a result of
25  the assisted living facility's breach of a duty to the
26  resident.
27         (9)  For the purpose of this section, punitive damages
28  may be awarded for conduct which is willful, wanton, gross or
29  flagrant, reckless, or consciously indifferent to the rights
30  of the resident.
31
                                  87
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (10)  Discovery of financial information for the
  2  purpose of determining the value of punitive damages may not
  3  be had unless the plaintiff shows the court by proffer or
  4  evidence in the record that a reasonable basis exists to
  5  support a claim for punitive damages.
  6         (11)  In addition to any other standards for punitive
  7  damages, any award of punitive damages must be reasonable in
  8  light of the actual harm suffered by the resident and the
  9  egregiousness of the conduct that caused the actual harm to
10  the resident.
11         (12)  Any portion of an order, judgment, arbitration
12  decision, mediation agreement, or other type of agreement,
13  contract, or settlement that has the purpose or effect of
14  concealing information relating to the settlement or
15  resolution of any claim or action brought pursuant to ss.
16  400.429-400.430 is void, contrary to public policy, and may
17  not be enforced. No court shall enter an order or judgment
18  that has the purpose or effect of concealing any information
19  pertaining to the resolution or settlement of any claim or
20  action brought pursuant to ss. 400.429-400.430. Any person or
21  governmental entity has standing to contest an order,
22  judgment, arbitration decision, mediation agreement, or other
23  type of agreement, contract, or settlement that violates this
24  subsection. A contest pursuant to this subsection may be
25  brought by a motion or an action for a declaratory judgment
26  filed in the circuit court of the circuit where the violation
27  of this subsection occurred.
28         (13)  The defendant must provide to the agency a copy
29  of any resolution of a claim or civil action brought pursuant
30  to ss. 400.429-400.430 within 90 days after such resolution,
31  including, but not limited to, any final judgment, arbitration
                                  88
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  decision, order, mediation agreement, or settlement. Failure
  2  to provide the copy to the agency shall result in a fine of
  3  $500 for each day it is overdue. The agency shall develop
  4  forms and adopt rules necessary to administer this subsection.
  5         Section 32.  Subsections (1) through (11) of section
  6  400.429, Florida Statutes, as amended by this act, shall apply
  7  to causes of action accruing on or after October 1, 2001.
  8  Subsections (12) and (13) of section 400.429, Florida
  9  Statutes, as amended by this act, shall apply to causes of
10  action in existence on October 1, 2001.
11         Section 33.  Section 400.430, Florida Statutes, is
12  created to read:
13         400.430  Voluntary binding arbitration.--
14         (1)  Causes of action pursuant to this section shall be
15  governed by the requirements for presuit process, screening,
16  and investigation provided in ss. 400.0235-400.0237.
17         (2)(a)  Upon the completion of presuit investigation
18  with preliminary reasonable grounds for a claim intact, the
19  parties may elect to have damages determined by an arbitration
20  panel.  Such election may be initiated by either party by
21  serving a request for voluntary binding arbitration of damages
22  within 90 days after service of the complaint upon the
23  defendant.  The evidentiary standards for voluntary binding
24  arbitration as authorized herein shall be as provided in ss.
25  120.569(2)(g) and 120.57(1)(c).
26         (b)  Upon receipt of a party's request for such
27  arbitration, the opposing party may accept the offer of
28  voluntary binding arbitration within 30 days.  However, in no
29  event shall the defendant be required to respond to the
30  request for arbitration sooner than 90 days after service of
31  the complaint.  Such acceptance within the time period
                                  89
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  provided by this paragraph shall be a binding commitment to
  2  comply with the decision of the arbitration panel.
  3         (c)  The arbitration panel shall be composed of three
  4  arbitrators, one selected by the claimant, one selected by the
  5  defendant, and one an administrative law judge furnished by
  6  the Division of Administrative Hearings who shall serve as the
  7  chief arbitrator.  In the event of multiple plaintiffs or
  8  multiple defendants, the arbitrator selected by the side with
  9  multiple parties shall be the choice of those parties.  If the
10  multiple parties cannot reach agreement as to their
11  arbitrator, each of the multiple parties shall submit a
12  nominee, and the director of the Division of Administrative
13  Hearings shall appoint the arbitrator from among such
14  nominees.
15         (d)  The arbitrators shall be independent of all
16  parties, witnesses, and legal counsel, and no officer,
17  director, affiliate, subsidiary, or employee of a party,
18  witness, or legal counsel may serve as an arbitrator in the
19  proceeding.
20         (e)  The rate of compensation for arbitrators other
21  than the administrative law judge shall be set by the chief
22  judge of the appropriate circuit court by schedule or as
23  agreed by the parties.  In setting the schedule, the chief
24  judge shall consider the prevailing rates charged for the
25  delivery of professional services in the community.
26         (f)  Arbitration pursuant to this section shall
27  preclude recourse to any other remedy by the claimant against
28  any participating defendant, and shall be undertaken with the
29  understanding that:
30         1.  Net economic damages shall be awardable, including,
31  but not limited to, past and future medical expenses and 80
                                  90
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  percent of wage loss and loss of earning capacity, offset by
  2  any collateral source payments.
  3         2.  Noneconomic damages shall be limited to a maximum
  4  of $500,000 per incident.
  5         3.  Damages for future economic losses shall be awarded
  6  to be paid by periodic payments pursuant to s. 766.202(8) and
  7  shall be offset by future collateral source payments.
  8         4.  Punitive damages may be awarded by the arbitration
  9  panel for conduct which is willful, wanton, gross or flagrant,
10  reckless, or consciously indifferent to the rights of the
11  resident. Upon such finding, the judgment for the total amount
12  of punitive damages awarded to a claimant may not exceed three
13  times the amount of compensatory damages awarded to each
14  person entitled thereto by the arbitrators. Any award of
15  punitive damages shall be equally divided between the claimant
16  and the Quality of Long-Term Care Facility Improvement Trust
17  Fund and awarded pursuant to paragraphs (4)(b)-(e).
18         5.  The defendant shall be responsible for the payment
19  of interest on all accrued damages with respect to which
20  interest would be awarded at trial.
21         6.  The defendant shall pay the claimant's reasonable
22  attorney's fees and costs, as determined by the arbitration
23  panel, but in no event more than 15 percent of the award,
24  reduced to present value.
25         7.  The defendant shall pay all the costs of the
26  arbitration proceeding and the fees of all the arbitrators
27  other than the administrative law judge.
28         8.  Each defendant who submits to arbitration under
29  this section shall be jointly and severally liable for all
30  damages assessed pursuant to this section.
31
                                  91
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         9.  The defendant's obligation to pay the claimant's
  2  damages shall be for the purpose of arbitration under this
  3  section only.  A defendant's or claimant's offer to arbitrate
  4  shall not be used in evidence or in argument during any
  5  subsequent litigation of the claim following the rejection
  6  thereof. Once arbitration has been selected by the parties, it
  7  shall be with the understanding and agreement that the
  8  defendants do not contest liability, and the issue to be
  9  determined in this regard shall be the amount of compensatory
10  damages to be awarded to the claimant. The defendant may fully
11  contest liability regarding punitive damages and shall not be
12  deemed to have admitted liability for, or the amount of, any
13  punitive damages.
14         10.  The fact of making or accepting an offer to
15  arbitrate shall not be admissible as evidence of liability in
16  any collateral or subsequent proceeding on the claim.
17         11.  Any offer by a claimant to arbitrate must be made
18  to each defendant against whom the claimant has made a claim.
19  Any offer by a defendant to arbitrate must be made to each
20  claimant who has joined in the litigation.  A defendant who
21  rejects a claimant's offer to arbitrate shall be subject to
22  the provisions of paragraph (3)(c). A claimant who rejects a
23  defendant's offer to arbitrate shall be subject to the
24  provisions of paragraph (3)(d).
25         12.  The hearing shall be conducted by all of the
26  arbitrators, but a majority may determine any question of fact
27  and render a final decision.  The chief arbitrator shall
28  decide all evidentiary matters.
29
30  The provisions of this paragraph shall not preclude settlement
31  at any time by mutual agreement of the parties.
                                  92
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (g)  Any issue between the defendant and the
  2  defendant's insurer or self-insurer as to who shall control
  3  the defense of the claim and any responsibility for payment of
  4  an arbitration award, shall be determined under existing
  5  principles of law; provided that the insurer or self-insurer
  6  shall not offer to arbitrate or accept a claimant's offer to
  7  arbitrate without the written consent of the defendant.
  8         (h)  The Division of Administrative Hearings is
  9  authorized to promulgate rules to effect the orderly and
10  efficient processing of the arbitration procedures of this
11  section.
12         (i)  Rules promulgated by the Division of
13  Administrative Hearings pursuant to this section, s. 120.54,
14  or s. 120.65 may authorize any reasonable sanctions except
15  contempt for violation of the rules of the division or failure
16  to comply with a reasonable order issued by an administrative
17  law judge, which is not under judicial review.
18         (3)  The following provisions shall govern when
19  voluntary binding arbitration is not offered or accepted:
20         (a)  A proceeding for voluntary binding arbitration is
21  an alternative to judicial proceedings once agreed to by the
22  parties. If not offered or accepted, however, the provisions
23  of paragraph (b) shall apply.
24         (b)  If neither party requests voluntary binding
25  arbitration, the claim shall proceed in the judicial process.
26  In such judicial process, the provisions of s. 768.79 shall
27  apply.
28         (c)  If the defendant refuses a claimant's offer of
29  voluntary binding arbitration under this section:
30         1.  The claim shall proceed in the judicial process
31  without limitation upon damages.
                                  93
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         2.  The claimant's award shall be reduced by any
  2  damages recovered by the claimant from arbitrating
  3  codefendants following arbitration.
  4         (d)  If the claimant rejects a defendant's offer to
  5  enter voluntary binding arbitration under this section:
  6         1.  The claim shall proceed in the judicial process
  7  without limitation upon damages.
  8         2.  The claimant's award shall be reduced by any
  9  damages recovered by the claimant from arbitrating
10  codefendants following arbitration.
11         3.  Notwithstanding any other law to the contrary,
12  punitive damages may not exceed three times the amount of
13  compensatory damages awarded to each person entitled thereto
14  by the trier of fact and the amount shall be divided equally
15  between the claimant and the Quality of Long-Term Care
16  Facility Improvement Trust Fund, in accordance with the
17  following provisions:
18         a.  The clerk of the court shall transmit a copy of the
19  jury verdict to the State Treasurer by certified mail. In the
20  final judgment the court shall order the percentages of the
21  award, payable as provided herein.
22         b.  A settlement agreement entered into between the
23  original parties to the action after a verdict has been
24  returned must provide a proportionate share payable to the
25  Quality of Long-Term Care Facility Improvement Trust Fund
26  specified herein. For purposes of this subsection, a
27  proportionate share is a 50-percent share of that percentage
28  of the settlement amount which the punitive damages portion of
29  the verdict bore to the total of the compensatory and punitive
30  damages in the verdict.
31
                                  94
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         c.  The Department of Banking and Finance shall collect
  2  or cause to be collected all payments due the state under this
  3  section. Such payments are made to the Comptroller and
  4  deposited in the appropriate fund specified in this
  5  subsection.
  6         d.  If the full amount of punitive damages awarded
  7  cannot be collected, the claimant and the other recipient
  8  designated pursuant to this subsection are each entitled to a
  9  proportionate share of the punitive damages collected.
10         (4)(a)1.  In the event that neither the claimant nor
11  the defendant request arbitration under this section, then
12  notwithstanding any other provision of law to the contrary, in
13  any action arising under this part and involving the award of
14  punitive damages, the judgment for the total amount of
15  punitive damages awarded to a claimant may not exceed three
16  times the amount of compensatory damages awarded to each
17  person entitled thereto by the trier of fact, except as
18  provided in subparagraph 2. This paragraph does not apply to
19  any class action.
20         2.  If any award for punitive damages exceeds the
21  limitation specified in subparagraph 1., the award is presumed
22  to be excessive and the defendant is entitled to remittitur of
23  the amount in excess of the limitation unless the claimant
24  demonstrates to the court by clear and convincing evidence
25  that the award is not excessive in light of the facts and
26  circumstances that were presented to the trier of fact. The
27  court shall give great weight as a mitigating factor to the
28  infrequency or lack of severity of prior claims against the
29  defendant.
30         3.  The jury may not be instructed or informed as to
31  the provisions of this subsection.
                                  95
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (b)  The amount of punitive damages awarded to each
  2  claimant shall be equally divided between the claimant and the
  3  Quality of Long-Term Care Facility Improvement Trust Fund, in
  4  accordance with the following:
  5         1.  The clerk of the court shall transmit a copy of the
  6  jury verdict to the State Treasurer by certified mail. In the
  7  final judgment, the court shall order the percentages of the
  8  award, payable as provided herein.
  9         2.  A settlement agreement entered into between the
10  original parties to the action after a verdict has been
11  returned must provide a proportionate share payable to the
12  Quality of Long-Term Care Facility Improvement Trust Fund
13  specified herein. Such proportionate share shall be determined
14  by prorating the amount of the settlement between compensatory
15  and punitive damages in the same ratio as the respective
16  portions of the damages awarded in the verdict. That portion
17  of the prorated punitive damages that exceeds three times the
18  prorated compensatory damages shall be the amount of the
19  proportionate share to be divided as provided herein.
20         3.  The Department of Banking and Finance shall collect
21  or cause to be collected all payments due the state under this
22  section. Such payments shall be made to the Comptroller and
23  deposited in the appropriate fund specified in this
24  subsection.
25         4.  If the full amount of punitive damages awarded
26  cannot be collected, the claimant and the other recipient
27  designated pursuant to this subsection are each entitled to a
28  proportionate share of the punitive damages collected.
29         (5)  Arbitration to allocate responsibility when more
30  than one defendant has participated in voluntary binding
31  arbitration, procedures involving misarbitration, payment of
                                  96
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  an arbitration award, and appeal of an arbitration award shall
  2  be governed by the requirements provided in ss.
  3  400.0239-400.0242.
  4         Section 34.  Subsection (5) of section 400.431, Florida
  5  Statutes, is amended to read:
  6         400.431  Closing of facility; notice; penalty.--
  7         (5)  The agency may levy a fine in an amount no greater
  8  than $5,000 upon each person or business entity that owns any
  9  interest in a facility that terminates operation without
10  providing notice to the agency and the residents of the
11  facility at least 45 30 days before operation ceases.  This
12  fine shall not be levied against any facility involuntarily
13  closed at the initiation of the agency.  The agency shall use
14  the proceeds of the fines to operate the facility until all
15  residents of the facility are relocated and shall deposit any
16  balance of the proceeds into the Health Care Trust Fund
17  established pursuant to s. 400.418.
18         Section 35.  Section 400.455, Florida Statutes, is
19  created to read:
20         400.455  Adverse action against employee for disclosing
21  information of specified nature prohibited; employee remedy
22  and relief.--
23         (1)  SHORT TITLE.--This section may be cited as the
24  "Assisted Living Facility Whistleblower's Act."
25         (2)  LEGISLATIVE INTENT.--It is the intent of the
26  Legislature to prevent assisted living facilities or
27  independent contractors from taking retaliatory action against
28  an employee who reports to an appropriate person or agency
29  violations of law on the part of a facility or independent
30  contractor that create a substantial and specific danger to an
31  assisted living facility resident's health, safety, or
                                  97
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  welfare. It is further the intent of the Legislature to
  2  prevent assisted living facilities or independent contractors
  3  from taking retaliatory action against any person who
  4  discloses information to an appropriate agency alleging
  5  improper use of or gross waste of governmental funds, or any
  6  other abuse or gross neglect of duty on the part of an
  7  assisted living facility.
  8         (3)  DEFINITIONS.--As used in this section, unless
  9  otherwise specified, the following words or terms shall have
10  the meanings indicated:
11         (a)  "Adverse personnel action" means the discharge,
12  suspension, transfer, or demotion of any employee or the
13  withholding of bonuses, the reduction in salary or benefits,
14  or any other adverse action taken against an employee within
15  the terms and conditions of employment by an assisted living
16  facility or independent contractor.
17         (b)  "Agency" means any state, regional, county, local,
18  or municipal government entity, whether executive, judicial,
19  or legislative; or any official, officer, department,
20  division, bureau, commission, authority, or political
21  subdivision thereof.
22         (c)  "Employee" means a person who performs services
23  for, and under the control and direction of, or contracts
24  with, an assisted living facility or independent contractor
25  for wages or other remuneration.
26         (d)  "Gross mismanagement" means a continuous pattern
27  of managerial abuses, wrongful or arbitrary and capricious
28  actions, or fraudulent or criminal conduct which may have a
29  substantial adverse economic impact.
30
31
                                  98
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (e)  "Independent contractor" means a person who is
  2  engaged in any business and enters into a contract with an
  3  assisted living facility.
  4         (4)  ACTIONS PROHIBITED.--
  5         (a)  An assisted living facility or an independent
  6  contractor shall not dismiss, discipline, or take any other
  7  adverse personnel action against an employee for disclosing
  8  information pursuant to the provisions of this section.
  9         (b)  An assisted living facility or an independent
10  contractor shall not take any adverse action that affects the
11  rights or interests of a person in retaliation for the
12  person's disclosure of information under this section.
13         (c)  The provisions of this subsection shall not be
14  applicable when an employee or person discloses information
15  known by the employee or person to be false.
16         (5)  NATURE OF INFORMATION DISCLOSED.--The information
17  disclosed under this section must include:
18         (a)  Any violation or suspected violation of any
19  federal, state, or local law, rule, or regulation committed by
20  an employee or agent of an assisted living facility or
21  independent contractor which creates and presents a
22  substantial and specific danger to the assisted living
23  facility resident's health, safety, or welfare.
24         (b)  Any act or suspected act of gross mismanagement,
25  malfeasance, misfeasance, gross waste of public funds, or
26  gross neglect of duty committed by an employee or agent of an
27  assisted living facility or independent contractor.
28         (6)  TO WHOM INFORMATION DISCLOSED.--The information
29  disclosed under this section must be disclosed to any agency
30  or Federal Government entity or person designated in s.
31
                                  99
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  400.022(1)(c) having the authority to investigate, police,
  2  manage, or otherwise remedy the violation or act.
  3         (7)  EMPLOYEES AND PERSONS PROTECTED.--This section
  4  protects employees and persons who disclose information on
  5  their own initiative in a written and signed complaint; who
  6  are requested to participate in an investigation, hearing, or
  7  other inquiry conducted by any agency or Federal Government
  8  entity; who refuse to participate in any adverse action
  9  prohibited by this section; or who initiate a complaint
10  through any appropriate complaint hotline. No remedy or other
11  protection under this section applies to any person who has
12  committed or intentionally participated in committing the
13  violation or suspected violation for which protection under
14  this section is being sought.
15         (8)  REMEDIES.--Any person protected by this section
16  may bring a civil action in any court of competent
17  jurisdiction against an assisted living facility for any
18  action prohibited by this section.
19         (9)  RELIEF.--In any action brought under this section,
20  the relief may include the following:
21         (a)  Reinstatement of the employee to the same position
22  held before the adverse action was commenced or to an
23  equivalent position, or reasonable front pay as alternative
24  relief.
25         (b)  Reinstatement of the employee's full fringe
26  benefits and seniority rights, as appropriate.
27         (c)  Compensation, if appropriate, for lost wages, lost
28  benefits, or other lost remuneration caused by the adverse
29  action.
30         (d)  Payment of reasonable costs, including attorney's
31  fees, to a substantially prevailing employee, or to the
                                 100
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  prevailing employer if the employee filed a frivolous action
  2  in bad faith.
  3         (e)  Issuance of an injunction, if appropriate, by a
  4  court of competent jurisdiction.
  5         (f)  Temporary reinstatement to the employee's former
  6  position or to an equivalent position, pending the final
  7  outcome on the complaint, if an employee complains of being
  8  discharged in retaliation for a protected disclosure and if a
  9  court of competent jurisdiction determines that the disclosure
10  was not made in bad faith or for a wrongful purpose or
11  occurred after an assisted living facility's or independent
12  contractor's initiation of a personnel action against the
13  employee which includes documentation of the employee's
14  violation of a disciplinary standard or performance
15  deficiency.
16         (10)  DEFENSES.--It shall be an affirmative defense to
17  any action brought pursuant to this section that the adverse
18  action was predicated upon grounds other than, and would have
19  been taken absent, the employee's or person's exercise of
20  rights protected by this section.
21         (11)  EXISTING RIGHTS.--This section does not diminish
22  the rights, privileges, or remedies of an employee under any
23  other law or rule or under any collective bargaining agreement
24  or employment contract.
25         Section 36.  Section 400.449, Florida Statutes, is
26  created to read:
27         400.449  Altering, defacing, or falsifying records;
28  penalties.--
29         (1)  Any person who fraudulently alters, defaces, or
30  falsifies any medical, care, or other record of an assisted
31  living facility, or causes or procures any such offense to be
                                 101
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  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 such person's
  5  license or certification privileges.
  6         Section 37.  Paragraph (b) of subsection (2) of section
  7  409.908, Florida Statutes, is amended to read:
  8         409.908  Reimbursement of Medicaid providers.--Subject
  9  to specific appropriations, the agency shall reimburse
10  Medicaid providers, in accordance with state and federal law,
11  according to methodologies set forth in the rules of the
12  agency and in policy manuals and handbooks incorporated by
13  reference therein.  These methodologies may include fee
14  schedules, reimbursement methods based on cost reporting,
15  negotiated fees, competitive bidding pursuant to s. 287.057,
16  and other mechanisms the agency considers efficient and
17  effective for purchasing services or goods on behalf of
18  recipients.  Payment for Medicaid compensable services made on
19  behalf of Medicaid eligible persons is subject to the
20  availability of moneys and any limitations or directions
21  provided for in the General Appropriations Act or chapter 216.
22  Further, nothing in this section shall be construed to prevent
23  or limit the agency from adjusting fees, reimbursement rates,
24  lengths of stay, number of visits, or number of services, or
25  making any other adjustments necessary to comply with the
26  availability of moneys and any limitations or directions
27  provided for in the General Appropriations Act, provided the
28  adjustment is consistent with legislative intent.
29         (2)
30         (b)  Subject to any limitations or directions provided
31  for in the General Appropriations Act, the agency shall
                                 102
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  establish and implement a Florida Title XIX Long-Term Care
  2  Reimbursement Plan (Medicaid) for nursing home care in order
  3  to provide care and services in conformance with the
  4  applicable state and federal laws, rules, regulations, and
  5  quality and safety standards and to ensure that individuals
  6  eligible for medical assistance have reasonable geographic
  7  access to such care. The agency shall amend the long-term care
  8  reimbursement plan to create a direct care and indirect care
  9  patient component. These two subcomponents together shall
10  equal the patient care component of the per diem rate. The
11  direct care subcomponent shall include only the salaries and
12  employee benefits of direct care staff who provide nursing
13  services to the residents of the nursing facility. "Direct
14  care staff" is defined for this purpose as registered nurses,
15  licensed practical nurses, and certified nurse assistants who
16  deliver care directly to residents in nursing home facilities.
17  There shall be no cost directly or indirectly allocated to the
18  direct care subcomponent from a home office or management
19  company. Separate cost-based class ceilings shall be
20  calculated for each patient care subcomponent, and the direct
21  care subcomponent shall be limited by the cost-based class
22  ceiling and the indirect care subcomponent shall be limited by
23  the individual provider target, target rate class ceiling, or
24  the cost-based ceiling. The agency shall make the required
25  changes to the nursing home cost reporting forms to implement
26  this requirement effective January 1, 2002. Under the plan,
27  interim rate adjustments shall not be granted to reflect
28  increases in the cost of general or professional liability
29  insurance for nursing homes unless the following criteria are
30  met: have at least a 65 percent Medicaid utilization in the
31  most recent cost report submitted to the agency, and the
                                 103
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  increase in general or professional liability costs to the
  2  facility for the most recent policy period affects the total
  3  Medicaid per diem by at least 5 percent. This rate adjustment
  4  shall not result in the per diem exceeding the class ceiling.
  5  This provision shall apply only to fiscal year 2000-2001 and
  6  shall be implemented to the extent existing appropriations are
  7  available. The agency shall report to the Governor, the
  8  Speaker of the House of Representatives, and the President of
  9  the Senate by December 31, 2000, on the cost of liability
10  insurance for Florida nursing homes for fiscal years 1999 and
11  2000 and the extent to which these costs are not being
12  compensated by the Medicaid program. Medicaid-participating
13  nursing homes shall be required to report to the agency
14  information necessary to compile this report. Effective no
15  earlier than the rate-setting period beginning April 1, 1999,
16  the agency shall establish a case-mix reimbursement
17  methodology for the rate of payment for long-term care
18  services for nursing home residents. The agency shall compute
19  a per diem rate for Medicaid residents, adjusted for case mix,
20  which is based on a resident classification system that
21  accounts for the relative resource utilization by different
22  types of residents and which is based on level-of-care data
23  and other appropriate data. The case-mix methodology developed
24  by the agency shall take into account the medical, behavioral,
25  and cognitive deficits of residents. In developing the
26  reimbursement methodology, the agency shall evaluate and
27  modify other aspects of the reimbursement plan as necessary to
28  improve the overall effectiveness of the plan with respect to
29  the costs of patient care, operating costs, and property
30  costs. In the event adequate data are not available, the
31  agency is authorized to adjust the patient's care component or
                                 104
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  the per diem rate to more adequately cover the cost of
  2  services provided in the patient's care component. The agency
  3  shall work with the Department of Elderly Affairs, the Florida
  4  Health Care Association, and the Florida Association of Homes
  5  for the Aging in developing the methodology. It is the intent
  6  of the Legislature that the reimbursement plan achieve the
  7  goal of providing access to health care for nursing home
  8  residents who require large amounts of care while encouraging
  9  diversion services as an alternative to nursing home care for
10  residents who can be served within the community. The agency
11  shall base the establishment of any maximum rate of payment,
12  whether overall or component, on the available moneys as
13  provided for in the General Appropriations Act. The agency may
14  base the maximum rate of payment on the results of
15  scientifically valid analysis and conclusions derived from
16  objective statistical data pertinent to the particular maximum
17  rate of payment.
18         Section 38.  Section 415.1111, Florida Statutes, is
19  amended to read:
20         415.1111  Civil actions.--A vulnerable adult who has
21  been abused, neglected, or exploited as specified in this
22  chapter has a cause of action against any perpetrator and may
23  recover actual and punitive damages for such abuse, neglect,
24  or exploitation.  The action may be brought by the vulnerable
25  adult, or that person's guardian, by a person or organization
26  acting on behalf of the vulnerable adult with the consent of
27  that person or that person's guardian, or by the personal
28  representative of the estate of a deceased victim without
29  regard to whether the cause of death resulted from the abuse,
30  neglect, or exploitation. The action may be brought in any
31  court of competent jurisdiction to enforce such action and to
                                 105
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  recover actual and punitive damages for any deprivation of or
  2  infringement on the rights of a vulnerable adult.  A party who
  3  prevails in any such action may be entitled to recover
  4  reasonable attorney's fees, costs of the action, and damages.
  5  The remedies provided in this section are in addition to and
  6  cumulative with other legal and administrative remedies
  7  available to a vulnerable adult. This section shall not apply
  8  to civil actions for damages against licensees under parts II
  9  and III of chapter 400.
10         Section 39.  Subsection (3) of section 430.708, Florida
11  Statutes, is amended to read:
12         430.708  Certificate of need.--To ensure that Medicaid
13  community diversion pilot projects result in a reduction in
14  the projected average monthly nursing home caseload, the
15  agency shall, in accordance with the provisions of s.
16  408.034(4):
17         (3)  Adopt rules to reduce the number of beds in
18  Medicaid-participating nursing homes eligible for Medicaid,
19  through a Medicaid-selective contracting process or some other
20  appropriate method.
21         Section 40.  Subsections (2) and (3) of section
22  430.709, Florida Statutes, are amended to read:
23         430.709  Reports and evaluations.--
24         (2)  The agency, in consultation with the department,
25  shall contract for an independent evaluation of the community
26  diversion pilot projects.  Such evaluation must include a
27  careful review and assessment of the actual cost for the
28  provision of services to enrollees participants. No later than
29  120 days after the effective date of this section, the agency
30  shall select a contractor with experience and expertise in
31  evaluating capitation rates for managed care organizations
                                 106
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  serving a disabled or frail elderly population to conduct the
  2  evaluation of the community diversion pilot project as defined
  3  in s. 430.703. The contractor shall demonstrate the capacity
  4  to evaluate managed care arrangements that seek to test the
  5  blending of Medicaid and Medicare capitation as a strategy to
  6  provide efficient, cost-effective care. The contractor shall
  7  report to the agency and the Legislature the specific array of
  8  services provided to each enrollee, the average number of
  9  times per week each service was provided, the unit cost and
10  total cost per week to provide the service, the total cost of
11  all services provided to the enrollee, and the enrollment
12  period for which total costs were calculated. In addition, the
13  contractor shall report to the agency and the Legislature the
14  total number of enrollees to date; the total payment to the
15  managed care organization for enrollees; the number of
16  enrollees who have been admitted to a nursing facility; the
17  total number of days enrollees have spent in nursing home
18  facilities; the number of enrollees who have disenrolled from
19  the project; the average length of time participants were
20  enrolled, expressed as the mean number of days and standard
21  deviation; the number of persons who disenrolled and
22  subsequently became a nursing home resident; the number of
23  enrollees who have died while enrolled in the project and the
24  mean number of days enrolled prior to death; the list of
25  available services delivered in-home by percentage of
26  enrollees receiving the service; the list of available
27  services delivered out-of-home by percentage of enrollees
28  receiving the service. The evaluation contractor shall analyze
29  and report the individual services and the array of services
30  most associated with effective diversion of frail elderly
31  enrollees from nursing home placement. Further, the contractor
                                 107
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  will evaluate the project responses to at least the following
  2  questions:
  3         (a)  Was the cost of the diversion project per person
  4  less than the cost of providing services through
  5  fee-for-service Medicaid?
  6         (b)  Did the diversion project increase access to
  7  physical health care, mental health care, and social services?
  8         (c)  Did the diversion project maintain or improve the
  9  quality of care and quality of life of the participants?
10         (d)  What was the functional status of participants
11  before enrolling in the diversion project, and what was the
12  functional status at various points during and after
13  enrollment?
14         (e)  How many participants disenrolled and at what
15  point after enrolling?
16         (f)  Why did participants disenroll?
17         (g)  Did the department develop specialized contract
18  standards and quality assurance measures?
19         (h)  Did the department assess quality of care,
20  appropriateness of care claims data analysis and consumer
21  self-report data?
22         (i)  Does the cost analysis show savings to the state?
23         (j)  What were the results of recipient profile and
24  enrollment analyses?
25         (k)  What were the results of the family satisfaction
26  and consumer outcome analyses?
27         (l)  How did hospital admissions and preventable
28  readmissions differ among nursing home enrollees in the
29  diversion project, nursing home residents not in the project,
30  and frail elders living in the community? Did payer or
31
                                 108
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  provider type have a significant relationship to the number of
  2  hospital admissions?
  3         (m)  What agencies or providers did the diversion
  4  project contractor engage to provide noninstitutional
  5  services?
  6         (n)  Was there a volume-outcome or dose-response
  7  relationship between the utilization rate of noninstitutional
  8  services, functional assessment, and the ability of the
  9  enrollee to remain in the community?
10         (3)  Subsequent to the completion of the evaluation and
11  submission of the evaluation report to the Legislature, the
12  agency, in consultation with the department, in consultation
13  with the agency, shall assess and make specific
14  recommendations to the Legislature as to the feasibility of
15  implementing a managed long-term care system throughout the
16  state to serve appropriate Medicaid-eligible long-term care
17  recipients age 60 years and older.
18         Section 41.  Subsection (3) of section 435.04, Florida
19  Statutes, is amended to read:
20         435.04  Level 2 screening standards.--
21         (3)  Standards must also ensure that the person:
22         (a)  For employees or employers licensed or registered
23  pursuant to chapter 400, does not have a confirmed report of
24  abuse, neglect, or exploitation as defined in s. 415.102(6),
25  which has been uncontested or upheld under s. 415.103.
26         (b)  has not committed an act that constitutes domestic
27  violence as defined in s. 741.30.
28         Section 42.  Paragraph (a) of subsection (1) of section
29  464.201, Florida Statutes, is amended to read:
30         464.201  Definitions.--As used in this part, the term:
31         (1)  "Approved training program" means:
                                 109
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (a)  A program offered by Enterprise Florida Jobs and
  2  Education Partnership Grant or a course of training conducted
  3  by a public sector or private sector educational center
  4  licensed by the Department of Education to implement the basic
  5  curriculum for nursing assistants which is approved by the
  6  Department of Education. Beginning October 1, 2000, the board
  7  shall assume responsibility for approval of training programs
  8  under this paragraph.
  9         Section 43.  Paragraph (e) is added to subsection (2)
10  of section 464.2085, Florida Statutes, to read:
11         464.2085  Council on Certified Nursing Assistants.--The
12  Council on Certified Nursing Assistants is created within the
13  department, under the Board of Nursing.
14         (2)  The council shall:
15         (e)  Develop special certifications or other
16  designations that indicate a certified nursing assistant's
17  advanced competence in significant areas of nursing home
18  practice including: care for persons with dementia, care at
19  the end of life, care for the mentally ill, care for persons
20  at risk of malnutrition or dehydration, transfer and movement
21  of persons with special needs, training as a mentor or coach
22  for newly hired certified nursing assistants, and such other
23  areas as determined by the council.
24         Section 44.  Subsection (1) of section 101.655, Florida
25  Statutes, is amended to read:
26         101.655  Supervised voting by absent electors in
27  certain facilities.--
28         (1)  The supervisor of elections of a county shall
29  provide supervised voting for absent electors residing in any
30  assisted living facility, as defined in s. 400.402, or nursing
31  home facility, as defined in s. 400.021, within that county at
                                 110
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  the request of any administrator of such a facility. Such
  2  request for supervised voting in the facility shall be made by
  3  submitting a written request to the supervisor of elections no
  4  later than 21 days prior to the election for which that
  5  request is submitted.  The request shall specify the name and
  6  address of the facility and the name of the electors who wish
  7  to vote absentee in that election.  If the request contains
  8  the names of fewer than five voters, the supervisor of
  9  elections is not required to provide supervised voting.
10         Section 45.  Subsection (2) of section 397.405, Florida
11  Statutes, is amended to read:
12         397.405  Exemptions from licensure.--The following are
13  exempt from the licensing provisions of this chapter:
14         (2)  A nursing home facility as defined in s.
15  400.021(12).
16
17  The exemptions from licensure in this section do not apply to
18  any facility or entity which receives an appropriation, grant,
19  or contract from the state to operate as a service provider as
20  defined in this chapter or to any substance abuse program
21  regulated pursuant to s. 397.406.  No provision of this
22  chapter shall be construed to limit the practice of a
23  physician licensed under chapter 458 or chapter 459, a
24  psychologist licensed under chapter 490, or a psychotherapist
25  licensed under chapter 491, providing outpatient or inpatient
26  substance abuse treatment to a voluntary patient, so long as
27  the physician, psychologist, or psychotherapist does not
28  represent to the public that he or she is a licensed service
29  provider under this act. Failure to comply with any
30  requirement necessary to maintain an exempt status under this
31
                                 111
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  section is a misdemeanor of the first degree, punishable as
  2  provided in s. 775.082 or s. 775.083.
  3         Section 46.  Subsection (3) of section 400.0069,
  4  Florida Statutes, is amended to read:
  5         400.0069  Local long-term care ombudsman councils;
  6  duties; membership.--
  7         (3)  In order to carry out the duties specified in
  8  subsection (2), the local ombudsman council is authorized,
  9  pursuant to ss. 400.19(1) and 400.434, to enter any long-term
10  care facility without notice or first obtaining a warrant,
11  subject to the provisions of s. 400.0073(7)(5).
12         Section 47.  The Auditor General shall develop a
13  standard chart of accounts to govern the content and manner of
14  presentation of financial information to be submitted by
15  Medicaid long-term care providers in their cost reports. The
16  Auditor General shall submit the standard chart of accounts to
17  the Agency for Health Care Administration not later than
18  December 31, 2001. The agency shall amend the Florida Title
19  XIX Long-Term Care Reimbursement Plan to incorporate this
20  standard chart of accounts and shall implement use of this
21  standard chart of accounts effective January 1, 2002. The
22  standard chart of accounts shall include specific accounts for
23  each component of direct care staff by type of personnel and
24  may not be revised without the written consent of the Auditor
25  General.
26         Section 48.  The Agency for Health Care Administration
27  shall amend the Medicaid Title XIX Long-Term Care
28  Reimbursement Plan effective December 31, 2001, to include the
29  following provisions:
30         (1)  COST REPORT FILING.--
31
                                 112
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (a)  Effective December 31, 2001, cost reports shall be
  2  submitted electronically in a format and manner prescribed by
  3  the agency.
  4         (b)  Effective with nursing facility cost reports filed
  5  for the period ended December 31, 2001, or after, the cost
  6  report shall contain detailed information on the salary,
  7  benefits, agency, and overtime costs and corresponding hours
  8  for direct care staffing for registered nurses, licensed
  9  practical nurses, and certified nursing assistants.
10         (2)  LIMITATIONS ON ALLOWABLE COSTS.--
11         (a)  Costs attributable to the membership in a nursing
12  home industry trade association shall be limited to a maximum
13  amount of $5 per bed per year prorated based on the percentage
14  of Medicaid patient days to total patient days for the
15  facility as an allowable Medicaid cost. Individual member dues
16  are not an allowable Medicaid cost.
17         (b)  Executive compensation included in home office
18  costs shall be limited to a maximum allowable per person
19  annual amount of $250,000 of compensation per year. A list of
20  executive compensation shall be included in the information
21  filing of the home office cost reports for any individual
22  whose total compensation exceeds $250,000 per year.
23         (c)  Costs attributable to legal settlements and jury
24  verdicts where there has been a finding or admission of
25  liability by the nursing home, or its owners, operators,
26  management companies, or employees, shall not be allowable
27  costs for Medicaid reimbursement purposes. Such costs include
28  legal costs, accounting fees, administrative costs,
29  investigative costs, travel costs, court costs, expert witness
30  costs, compensatory damage costs, punitive damage costs,
31
                                 113
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  records and transcription costs, or any other cost associated
  2  with the settlement or verdict.
  3         (3)  RECOUPMENT.--Any provider participating in the
  4  Florida Medicaid nursing home program who has failed to
  5  provide the goods and services in accordance with federal and
  6  state requirements may be subject to recoupment of costs by
  7  the agency.
  8         Section 49.  The Board of Nursing is directed to
  9  develop standards and procedures for recognizing professional
10  nurses whose commitment to the practice of nursing in
11  long-term care settings is worthy of commendation.
12         Section 50.  The Agency for Health Care Administration
13  shall require that a portion of each nursing facility's
14  Medicaid rate be used exclusively for wage and benefit
15  increases for nursing home direct care staff. Such funds shall
16  be used only for actual wage or benefit improvements. Eligible
17  staff members include all direct care workers (including RNs,
18  LPNs, and CNAs) and all dietary, housekeeping, laundry, and
19  maintenance workers. Temporary, contract, agency, and pool
20  employees are excluded. The agency shall develop
21  cost-reporting systems to ensure that the funds the agency has
22  required to be used for wage and benefit increases for direct
23  care staff are used for this purpose. On January 1 of each
24  year, the agency shall report to the Legislature the effect of
25  such wage and benefit increases for employees in nursing
26  facilities in this state.
27         Section 51.  Subsection (11) of section 400.021,
28  Florida Statutes, as created by section 1 of chapter 2000-350,
29  Laws of Florida, is reenacted to read:
30         400.021  Definitions.--When used in this part, unless
31  the context otherwise requires, the term:
                                 114
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (11)  "Nursing home bed" means an accommodation which
  2  is ready for immediate occupancy, or is capable of being made
  3  ready for occupancy within 48 hours, excluding provision of
  4  staffing; and which conforms to minimum space requirements,
  5  including the availability of appropriate equipment and
  6  furnishings within the 48 hours, as specified by rule of the
  7  agency, for the provision of services specified in this part
  8  to a single resident.
  9         Section 52.  Section 400.0225, Florida Statutes, as
10  amended by section 2 of chapter 2000-350, Laws of Florida, is
11  reenacted to read:
12         400.0225  Consumer satisfaction surveys.--The agency,
13  or its contractor, in consultation with the nursing home
14  industry and consumer representatives, shall develop an
15  easy-to-use consumer satisfaction survey, shall ensure that
16  every nursing facility licensed pursuant to this part
17  participates in assessing consumer satisfaction, and shall
18  establish procedures to ensure that, at least annually, a
19  representative sample of residents of each facility is
20  selected to participate in the survey. The sample shall be of
21  sufficient size to allow comparisons between and among
22  facilities. Family members, guardians, or other resident
23  designees may assist the resident in completing the survey.
24  Employees and volunteers of the nursing facility or of a
25  corporation or business entity with an ownership interest in
26  the facility are prohibited from assisting a resident with or
27  attempting to influence a resident's responses to the consumer
28  satisfaction survey. The agency, or its contractor, shall
29  survey family members, guardians, or other resident designees.
30  The agency, or its contractor, shall specify the protocol for
31  conducting and reporting the consumer satisfaction surveys.
                                 115
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  Reports of consumer satisfaction surveys shall protect the
  2  identity of individual respondents. The agency shall contract
  3  for consumer satisfaction surveys and report the results of
  4  those surveys in the consumer information materials prepared
  5  and distributed by the agency. The agency may adopt rules as
  6  necessary to administer this section.
  7         Section 53.  Subsections (3) and (8) of section
  8  400.0255, Florida Statutes, as amended by section 138 of
  9  chapter 2000-349, section 3 of chapter 2000-350, and section
10  58 of chapter 2000-367, Laws of Florida, are reenacted to
11  read:
12         400.0255  Resident transfer or discharge; requirements
13  and procedures; hearings.--
14         (3)  When a discharge or transfer is initiated by the
15  nursing home, the nursing home administrator employed by the
16  nursing home that is discharging or transferring the resident,
17  or an individual employed by the nursing home who is
18  designated by the nursing home administrator to act on behalf
19  of the administration, must sign the notice of discharge or
20  transfer. Any notice indicating a medical reason for transfer
21  or discharge must either be signed by the resident's attending
22  physician or the medical director of the facility, or include
23  an attached written order for the discharge or transfer. The
24  notice or the order must be signed by the resident's
25  physician, medical director, treating physician, nurse
26  practitioner, or physician assistant.
27         (8)  The notice required by subsection (7) must be in
28  writing and must contain all information required by state and
29  federal law, rules, or regulations applicable to Medicaid or
30  Medicare cases. The agency shall develop a standard document
31  to be used by all facilities licensed under this part for
                                 116
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  purposes of notifying residents of a discharge or transfer.
  2  Such document must include a means for a resident to request
  3  the local long-term care ombudsman council to review the
  4  notice and request information about or assistance with
  5  initiating a fair hearing with the department's Office of
  6  Appeals Hearings. In addition to any other pertinent
  7  information included, the form shall specify the reason
  8  allowed under federal or state law that the resident is being
  9  discharged or transferred, with an explanation to support this
10  action. Further, the form shall state the effective date of
11  the discharge or transfer and the location to which the
12  resident is being discharged or transferred. The form shall
13  clearly describe the resident's appeal rights and the
14  procedures for filing an appeal, including the right to
15  request the local ombudsman council to review the notice of
16  discharge or transfer. A copy of the notice must be placed in
17  the resident's clinical record, and a copy must be transmitted
18  to the resident's legal guardian or representative and to the
19  local ombudsman council within 5 business days after signature
20  by the resident or resident designee.
21         Section 54.  Subsections (4) and (5) of section
22  400.141, Florida Statutes, as renumbered and amended by
23  section 4 of chapter 2000-350, Laws of Florida, are reenacted
24  to read:
25         400.141  Administration and management of nursing home
26  facilities.--Every licensed facility shall comply with all
27  applicable standards and rules of the agency and shall:
28         (4)  Provide for resident use of a community pharmacy
29  as specified in s. 400.022(1)(q). Any other law to the
30  contrary notwithstanding, a registered pharmacist licensed in
31  Florida, that is under contract with a facility licensed under
                                 117
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  this chapter, shall repackage a nursing facility resident's
  2  bulk prescription medication which has been packaged by
  3  another pharmacist licensed in any state in the United States
  4  into a unit dose system compatible with the system used by the
  5  nursing facility, if the pharmacist is requested to offer such
  6  service. To be eligible for repackaging, a resident or the
  7  resident's spouse must receive prescription medication
  8  benefits provided through a former employer as part of his or
  9  her retirement benefits a qualified pension plan as specified
10  in s. 4972 of the Internal Revenue Code, a federal retirement
11  program as specified under 5 C.F.R. s. 831, or a long-term
12  care policy as defined in s. 627.9404(1). A pharmacist who
13  correctly repackages and relabels the medication and the
14  nursing facility which correctly administers such repackaged
15  medication under the provisions of this subsection shall not
16  be held liable in any civil or administrative action arising
17  from the repackaging. In order to be eligible for the
18  repackaging, a nursing facility resident for whom the
19  medication is to be repackaged shall sign an informed consent
20  form provided by the facility which includes an explanation of
21  the repackaging process and which notifies the resident of the
22  immunities from liability provided herein. A pharmacist who
23  repackages and relabels prescription medications, as
24  authorized under this subsection, may charge a reasonable fee
25  for costs resulting from the implementation of this provision.
26         (5)  Provide for the access of the facility residents
27  to dental and other health-related services, recreational
28  services, rehabilitative services, and social work services
29  appropriate to their needs and conditions and not directly
30  furnished by the licensee.  When a geriatric outpatient nurse
31  clinic is conducted in accordance with rules adopted by the
                                 118
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  agency, outpatients attending such clinic shall not be counted
  2  as part of the general resident population of the nursing home
  3  facility, nor shall the nursing staff of the geriatric
  4  outpatient clinic be counted as part of the nursing staff of
  5  the facility, until the outpatient clinic load exceeds 15 a
  6  day.
  7
  8  Facilities that have been awarded a Gold Seal under the
  9  program established in s. 400.235 may develop a plan to
10  provide certified nursing assistant training as prescribed by
11  federal regulations and state rules and may apply to the
12  agency for approval of its program.
13         Section 55.  Subsection (2) of section 400.191, Florida
14  Statutes, as amended by section 5 of chapter 2000-350, Laws of
15  Florida, and subsection (6) of section 400.191, Florida
16  Statutes, as created by section 5 of chapter 2000-350, Laws of
17  Florida, are reenacted to read:
18         400.191  Availability, distribution, and posting of
19  reports and records.--
20         (2)  The agency shall provide additional information in
21  consumer-friendly printed and electronic formats to assist
22  consumers and their families in comparing and evaluating
23  nursing home facilities.
24         (a)  The agency shall provide an Internet site which
25  shall include at least the following information either
26  directly or indirectly through a link to another established
27  site or sites of the agency's choosing:
28         1.  A list by name and address of all nursing home
29  facilities in this state.
30         2.  Whether such nursing home facilities are
31  proprietary or nonproprietary.
                                 119
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         3.  The current owner of the facility's license and the
  2  year that that entity became the owner of the license.
  3         4.  The name of the owner or owners of each facility
  4  and whether the facility is affiliated with a company or other
  5  organization owning or managing more than one nursing facility
  6  in this state.
  7         5.  The total number of beds in each facility.
  8         6.  The number of private and semiprivate rooms in each
  9  facility.
10         7.  The religious affiliation, if any, of each
11  facility.
12         8.  The languages spoken by the administrator and staff
13  of each facility.
14         9.  Whether or not each facility accepts Medicare or
15  Medicaid recipients or insurance, health maintenance
16  organization, Veterans Administration, CHAMPUS program, or
17  workers' compensation coverage.
18         10.  Recreational and other programs available at each
19  facility.
20         11.  Special care units or programs offered at each
21  facility.
22         12.  Whether the facility is a part of a retirement
23  community that offers other services pursuant to part III,
24  part IV, or part V.
25         13.  The results of consumer and family satisfaction
26  surveys for each facility, as described in s. 400.0225. The
27  results may be converted to a score or scores, which may be
28  presented in either numeric or symbolic form for the intended
29  consumer audience.
30         14.  Survey and deficiency information contained on the
31  Online Survey Certification and Reporting (OSCAR) system of
                                 120
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  the federal Health Care Financing Administration, including
  2  annual survey, revisit, and complaint survey information, for
  3  each facility for the past 45 months.  For noncertified
  4  nursing homes, state survey and deficiency information,
  5  including annual survey, revisit, and complaint survey
  6  information for the past 45 months shall be provided.
  7         15.  A summary of the Online Survey Certification and
  8  Reporting (OSCAR) data for each facility over the past 45
  9  months. Such summary may include a score, rating, or
10  comparison ranking with respect to other facilities based on
11  the number of citations received by the facility of annual,
12  revisit, and complaint surveys; the severity and scope of the
13  citations; and the number of annual recertification surveys
14  the facility has had during the past 45 months. The score,
15  rating, or comparison ranking may be presented in either
16  numeric or symbolic form for the intended consumer audience.
17         (b)  The agency shall provide the following information
18  in printed form:
19         1.  A list by name and address of all nursing home
20  facilities in this state.
21         2.  Whether such nursing home facilities are
22  proprietary or nonproprietary.
23         3.  The current owner or owners of the facility's
24  license and the year that entity became the owner of the
25  license.
26         4.  The total number of beds, and of private and
27  semiprivate rooms, in each facility.
28         5.  The religious affiliation, if any, of each
29  facility.
30         6.  The name of the owner of each facility and whether
31  the facility is affiliated with a company or other
                                 121
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  organization owning or managing more than one nursing facility
  2  in this state.
  3         7.  The languages spoken by the administrator and staff
  4  of each facility.
  5         8.  Whether or not each facility accepts Medicare or
  6  Medicaid recipients or insurance, health maintenance
  7  organization, Veterans Administration, CHAMPUS program, or
  8  workers' compensation coverage.
  9         9.  Recreational programs, special care units, and
10  other programs available at each facility.
11         10.  The results of consumer and family satisfaction
12  surveys for each facility, as described in s. 400.0225. The
13  results may be converted to a score or scores, which may be
14  presented in either numeric or symbolic form for the intended
15  consumer audience.
16         11.  The Internet address for the site where more
17  detailed information can be seen.
18         12.  A statement advising consumers that each facility
19  will have its own policies and procedures related to
20  protecting resident property.
21         13.  A summary of the Online Survey Certification and
22  Reporting (OSCAR) data for each facility over the past 45
23  months. Such summary may include a score, rating, or
24  comparison ranking with respect to other facilities based on
25  the number of citations received by the facility on annual,
26  revisit, and complaint surveys; the severity and scope of the
27  citations; the number of citations; and the number of annual
28  recertification surveys the facility has had during the past
29  45 months. The score, rating, or comparison ranking may be
30  presented in either numeric or symbolic form for the intended
31  consumer audience.
                                 122
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (c)  For purposes of this subsection, references to the
  2  Online Survey Certification and Reporting (OSCAR) system shall
  3  refer to any future system that the Health Care Financing
  4  Administration develops to replace the current OSCAR system.
  5         (d)  The agency may provide the following additional
  6  information on an Internet site or in printed form as the
  7  information becomes available:
  8         1.  The licensure status history of each facility.
  9         2.  The rating history of each facility.
10         3.  The regulatory history of each facility, which may
11  include federal sanctions, state sanctions, federal fines,
12  state fines, and other actions.
13         4.  Whether the facility currently possesses the Gold
14  Seal designation awarded pursuant to s. 400.235.
15         5.  Internet links to the Internet sites of the
16  facilities or their affiliates.
17         (6)  The agency may adopt rules as necessary to
18  administer this section.
19         Section 56.  Subsection (5) of section 400.23, Florida
20  Statutes, as amended by section 6 of chapter 2000-350, Laws of
21  Florida, is reenacted to read:
22         400.23  Rules; evaluation and deficiencies; licensure
23  status.--
24         (5)  The agency, in collaboration with the Division of
25  Children's Medical Services of the Department of Health, must,
26  no later than December 31, 1993, adopt rules for minimum
27  standards of care for persons under 21 years of age who reside
28  in nursing home facilities.  The rules must include a
29  methodology for reviewing a nursing home facility under ss.
30  408.031-408.045 which serves only persons under 21 years of
31  age. A facility may be exempt from these standards for
                                 123
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  specific persons between 18 and 21 years of age, if the
  2  person's physician agrees that minimum standards of care based
  3  on age are not necessary.
  4         Section 57.  Paragraph (a) of subsection (3),
  5  subsection (4), and paragraph (e) of subsection (5) of section
  6  400.235, Florida Statutes, as amended by section 12 of chapter
  7  2000-305 and section 7 of chapter 2000-350, Laws of Florida,
  8  and subsection (9) of section 400.235, Florida Statutes, as
  9  created by section 7 of chapter 2000-350, are reenacted to
10  read:
11         400.235  Nursing home quality and licensure status;
12  Gold Seal Program.--
13         (3)(a)  The Gold Seal Program shall be developed and
14  implemented by the Governor's Panel on Excellence in Long-Term
15  Care which shall operate under the authority of the Executive
16  Office of the Governor. The panel shall be composed of three
17  persons appointed by the Governor, to include a consumer
18  advocate for senior citizens and two persons with expertise in
19  the fields of quality management, service delivery excellence,
20  or public sector accountability; three persons appointed by
21  the Secretary of Elderly Affairs, to include an active member
22  of a nursing facility family and resident care council and a
23  member of the University Consortium on Aging; the State
24  Long-Term Care Ombudsman; one person appointed by the Florida
25  Life Care Residents Association; one person appointed by the
26  Secretary of Health; two persons appointed by the Secretary of
27  Health Care Administration; one person appointed by the
28  Florida Association of Homes for the Aging; and one person
29  appointed by the Florida Health Care Association. Vacancies on
30  the panel shall be filled in the same manner as the original
31  appointments.
                                 124
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         (4)  The panel shall consider the quality of care
  2  provided to residents when evaluating a facility for the Gold
  3  Seal Program. The panel shall determine the procedure or
  4  procedures for measuring the quality of care.
  5         (5)  Facilities must meet the following additional
  6  criteria for recognition as a Gold Seal Program facility:
  7         (e)  Have a stable workforce, as evidenced by a
  8  relatively low rate of turnover among certified nursing
  9  assistants and licensed nurses within the 30 months preceding
10  application for the Gold Seal Program, and demonstrate a
11  continuing effort to maintain a stable workforce and to reduce
12  turnover of licensed nurses and certified nursing assistants.
13
14  A facility assigned a conditional licensure status may not
15  qualify for consideration for the Gold Seal Program until
16  after it has operated for 30 months with no class I or class
17  II deficiencies and has completed a regularly scheduled
18  relicensure survey.
19         (9)  The agency may adopt rules as necessary to
20  administer this section.
21         Section 58.  The repeal of paragraph (h) of subsection
22  (5) of section 400.235, Florida Statutes, 1999, by section 7
23  of chapter 2000-350, Laws of Florida, is reenacted.
24         Section 59.  Subsection (1) of section 400.962, Florida
25  Statutes, as amended by section 8 of chapter 2000-350, Laws of
26  Florida, is reenacted to read:
27         400.962  License required; license application.--
28         (1)  It is unlawful to operate an intermediate care
29  facility for the developmentally disabled without a license.
30
31
                                 125
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1         Section 60.  Subsection (2) of section 397.405, Florida
  2  Statutes, as amended by section 9 of chapter 2000-350, Laws of
  3  Florida, is reenacted to read:
  4         397.405  Exemptions from licensure.--The following are
  5  exempt from the licensing provisions of this chapter:
  6         (2)  A nursing home facility as defined in s.
  7  400.021(12).
  8
  9  The exemptions from licensure in this section do not apply to
10  any facility or entity which receives an appropriation, grant,
11  or contract from the state to operate as a service provider as
12  defined in this chapter or to any substance abuse program
13  regulated pursuant to s. 397.406.  No provision of this
14  chapter shall be construed to limit the practice of a
15  physician licensed under chapter 458 or chapter 459, a
16  psychologist licensed under chapter 490, or a psychotherapist
17  licensed under chapter 491, providing outpatient or inpatient
18  substance abuse treatment to a voluntary patient, so long as
19  the physician, psychologist, or psychotherapist does not
20  represent to the public that he or she is a licensed service
21  provider under this act. Failure to comply with any
22  requirement necessary to maintain an exempt status under this
23  section is a misdemeanor of the first degree, punishable as
24  provided in s. 775.082 or s. 775.083.
25         Section 61.  Section 10 of chapter 2000-350, Laws of
26  Florida, is reenacted to read:
27         Section 10.  The Board of Pharmacy, in cooperation with
28  the Agency for Health Care Administration, shall undertake a
29  study of the feasibility, efficiency, cost-effectiveness, and
30  safety of using automated medication dispensing machines in
31  nursing facilities. The board and the agency may authorize the
                                 126
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  establishment of demonstration projects in up to five nursing
  2  facilities with a class I institutional pharmacy as part of
  3  the study. Demonstration projects may be allowed to continue
  4  for up to 12 months. A report summarizing the results of the
  5  study shall be submitted by the board and the agency to the
  6  Speaker of the House of Representatives and the President of
  7  the Senate by January 1, 2001. If the study determines that
  8  such dispensing machines would benefit residents of nursing
  9  facilities and should be allowed, the report shall identify
10  those specific statutory changes necessary to allow nursing
11  facilities to use automated medication dispensing machines.
12         Section 62.  It is the intent of the Legislature that
13  the reenactment of statutes provided in this act is remedial
14  in nature and is not intended to conflict with any amendment
15  provided in this act to any of the statutes reenacted, but
16  merely serves to settle and provide relief from uncertainty
17  with respect to the provisions of chapter 2000-350, Laws of
18  Florida, relating to nursing homes and related health care
19  facilities, which chapter law may contain more than one
20  subject.
21         Section 63.  Effective July 1, 2001, the sum of
22  $948,782 is appropriated from the General Revenue Fund to the
23  Department of Elderly Affairs for the purpose of paying the
24  salaries and other administrative expenses of the Office of
25  State Long-Term Care Ombudsman to carry out the provisions of
26  this act during the 2001-2002 fiscal year.
27         Section 64.  Effective July 1, 2001, there is
28  appropriated from the General Revenue Fund for the Statewide
29  Public Guardianship Office established in part II, chapter
30  744, Florida Statutes, the sum of $100,000. The office shall
31  use the funds for training and for costs associated with
                                 127
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1  providing assistance to judicial circuits in development of
  2  local public guardianship programs, including public
  3  guardianship services for residents of long-term care
  4  facilities licensed under chapter 400, Florida Statutes.
  5         Section 65.  Except as otherwise provided herein, this
  6  act shall take effect upon becoming a law.
  7
  8
  9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
                                 128
CODING: Words stricken are deletions; words underlined are additions.
    Florida House of Representatives - 2001                HB 1879
    173-978A-01
  1            *****************************************
  2                          HOUSE SUMMARY
  3
      Provides requirements and procedures for civil actions to
  4    enforce the rights of nursing home and assisted living
      facility residents, including requirements for notice,
  5    investigation, arbitration, and appeal. Establishes
      "whistleblower" protections prohibiting retaliatory
  6    action against an employee who discloses certain
      information concerning a nursing home or assisted living
  7    facility, and provides rewards and penalties. Requires
      nursing homes to allow residents to install electronic
  8    monitoring devices in their rooms, and provides
      requirements and penalties. Revises requirements for
  9    nursing home license applications and grounds for denial.
      Provides or expands requirements relating to staff on
10    duty, assessment and care of residents, resident
      grievance procedures, recordkeeping, and reporting to the
11    Agency for Health Care Administration. Revises
      qualifications for nursing home personnel, including
12    medical directors, nursing personnel, and temporary
      nursing assistants. Provides for competency review,
13    inservice training, and competency designations for
      certified nursing assistants. Directs the Board of
14    Nursing to provide for commendations for professional
      nurses. Requires wage and benefit increases for nursing
15    home direct care staff. Expands grounds for
      administrative and other actions against a nursing home,
16    revises classifications of deficient practices, and
      revises penalties. Requires nursing homes to establish
17    internal risk management programs, and provides
      requirements for implementation, including reporting of
18    adverse incidents and access to and review of records.
      Provides penalties for altering, defacing, or falsifying
19    assisted living facility records. Revises Medicaid
      long-term care reimbursement requirements to provide for
20    direct care and indirect care subcomponents and cost
      reporting. Provides requirements for contracts for
21    independent evaluation of long-term care community
      diversion projects, and transfers contract responsibility
22    from the Department of Elderly Affairs to the agency.
      Requires the Auditor General to develop a standard chart
23    of accounts for Medicaid long-term care cost reporting.
      Requires the agency to amend the Medicaid Long-Term Care
24    Reimbursement Plan to include specified provisions.
      Reenacts nursing home law enacted by ch. 2000-350, Laws
25    of Florida, to settle a constitutional question. Provides
      appropriations. See bill for details.
26
27
28
29
30
31
                                 129
CODING: Words stricken are deletions; words underlined are additions.