Senate Bill sb1714e1

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    CS for SB 1714                                 First Engrossed



  1                      A bill to be entitled

  2         An act relating to nursing homes; requiring the

  3         Agency for Health Care Administration to

  4         conduct a pilot project to demonstrate the use

  5         of electronic monitoring equipment in nursing

  6         homes; establishing requirements for nursing

  7         homes participating in the pilot project;

  8         establishing procedures for the use of

  9         electronic monitoring equipment; specifying who

10         may request electronic monitoring; providing

11         for conditional consent to electronic

12         monitoring; providing for review of tapes

13         documenting questionable activity; prohibiting

14         the admission of tapes as evidence in civil

15         litigation against a nursing home, a licensed

16         health care practitioner, or staff of a nursing

17         home; providing for rebasing of Medicaid costs;

18         requiring the Agency for Health Care

19         Administration to convene an advisory panel;

20         requiring a report; providing an effective

21         date.

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

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25         Section 1.  By July 1, 2002, the Agency for Health Care

26  Administration shall solicit two private nursing homes, one

27  for-profit and one not-for-profit, in two different geographic

28  areas of the state to participate in a 1-year pilot project to

29  demonstrate the use of electronic monitoring equipment in

30  nursing homes licensed under part II of chapter 400, Florida

31  Statutes. If no nursing homes volunteer, the agency shall


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    CS for SB 1714                                 First Engrossed



  1  select the two facilities with the lowest rank in

  2  quality-of-care performance under section 400.191, Florida

  3  Statutes, and applicable rules. This selection shall not be

  4  subject to review or challenge. If more than two nursing homes

  5  apply, the Agency for Health Care Administration shall select

  6  two nursing homes, the one with the highest ranking and the

  7  one with the lowest ranking in quality-of-care performance

  8  under section 400.191, Florida Statutes, and applicable rules.

  9         (1)  The nursing homes that participate in the pilot

10  project shall develop policies and procedures that permit each

11  resident or, if appropriate, the resident's legal

12  representative, to request electronic monitoring of the

13  resident's room. The nursing homes that participate in the

14  pilot project shall also install equipment to electronically

15  monitor and shall monitor activities in common areas of the

16  facility. The policies and procedures must include steps to

17  address the privacy and dignity of residents, roommates, and

18  visitors.

19         (2)  The request for electronic monitoring of a

20  resident's room must be in writing and signed by the resident

21  or the resident's representative.

22         (a)  If a resident has the capacity to request

23  electronic monitoring and has not been judicially declared to

24  lack the required capacity, only the resident may request the

25  electronic monitoring, notwithstanding the terms of any

26  durable power of attorney or similar instrument.

27         (b)  If a resident has been judicially declared to lack

28  the capacity required to request electronic monitoring, only

29  the guardian of the resident may request electronic

30  monitoring.

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    CS for SB 1714                                 First Engrossed



  1         (c)  If a resident does not have the capacity to

  2  request electronic monitoring and has not been judicially

  3  declared to lack the required capacity, the resident's

  4  physician may make the determination regarding the capacity of

  5  the resident to request electronic monitoring and must

  6  document the determination in the resident's clinical record.

  7  In that case, only the legal representative of the resident

  8  may request the electronic monitoring. A person from the

  9  following list, in order of priority, may act as the

10  resident's legal representative for the limited purpose of

11  requesting electronic monitoring of the resident's room.

12         1.  A person named in the resident's medical power of

13  attorney or other advance directive.

14         2.  The resident's spouse.

15         3.  An adult child of the resident who has the waiver

16  and consent of all other qualified adult children of the

17  resident to act as the sole decision-maker.

18         4.  A majority of the resident's reasonably available

19  adult children.

20         5.  The resident's parents.

21         6.  The individual clearly identified as suitable to

22  act for the resident by the resident before the resident

23  became incapacitated or the resident's nearest living

24  relative.

25         (3)  A resident, or resident's legal representative,

26  who wishes to conduct electronic monitoring must obtain the

27  written, signed consent of other residents in the room. The

28  written consent must be submitted to the administrator of the

29  nursing home or his or her designee.

30         (a)  Consent of other residents may be given only by: 

31         1.  The other resident or residents in the room;


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    CS for SB 1714                                 First Engrossed



  1         2.  The guardian of the other resident, if the resident

  2  has been judicially declared to lack the required capacity; or

  3         3.  The legal representative of the other resident,

  4  determined by following the same procedure established under

  5  (2)(c).

  6         (b)  Another resident in the room may condition consent

  7  on:

  8         1.  Pointing the camera away from the consenting

  9  resident, when the proposed electronic monitoring device is a

10  video surveillance camera; and

11         2.  Limiting or prohibiting the use of an audio

12  electronic monitoring device.

13         (c)  Electronic monitoring must be conducted in

14  accordance with any limitations placed on the monitoring as a

15  condition of the consent given by or on behalf of another

16  resident of the room.

17         (4)  When the request for electronic monitoring and all

18  required consents have been given to the nursing home

19  administrator or his or her designee, electronic monitoring

20  may begin. If electronic monitoring is being conducted in a

21  resident's room, and another resident is moved into the room

22  who has not yet consented to electronic monitoring, the

23  monitoring must cease until the new resident, or the

24  resident's legal representative, consents.

25         (5)  Anyone conducting electronic monitoring must post

26  and maintain a conspicuous notice at the entrance to the

27  resident's room stating that the room is being monitored by an

28  electronic monitoring device. The nursing homes participating

29  in the pilot project must post a notice in a prominent

30  location in common areas that the areas are being

31  electronically monitored.


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    CS for SB 1714                                 First Engrossed



  1         (6)  The resident or resident's legal representative

  2  who requests the electronic monitoring of the resident's room

  3  is responsible for the costs associated with conducting

  4  electronic monitoring in the resident's room, including the

  5  equipment and tapes and the installation, maintenance, or

  6  removal of the equipment, other than the costs of electricity.

  7  The electronic monitoring equipment and tapes must be the

  8  property of the resident. The nursing home must make

  9  reasonable physical accommodation for electronic monitoring

10  which includes:

11         (a)  A reasonably secure place to mount the video

12  surveillance camera or other electronic monitoring device; and

13         (b)  Access to power sources for the video surveillance

14  camera or other electronic monitoring device.

15         (7)  The nursing home may:

16         (a)  Require an electronic monitoring device to be

17  installed in a manner that is safe for residents, employees,

18  or visitors who may be moving about the room and that meets

19  all local and state regulations;

20         (b)  Require the electronic monitoring to be conducted

21  in plain view; and

22         (c)  Place a resident in a different room to

23  accommodate a request for electronic monitoring.

24         (8)  A participating nursing home may not refuse to

25  admit an individual and may not discharge a resident solely

26  because of a request to conduct electronic monitoring.

27         (9)  Any questionable activity discovered as a result

28  of viewing a tape produced by the electronic monitoring

29  equipment shall be reported to the nursing home's

30  administrator and the Agency for Health Care Administration

31  within 24 hours after discovery of the questionable activity.


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    CS for SB 1714                                 First Engrossed



  1         (a)  When a questionable activity that occurred in a

  2  resident's room has been reported to the nursing home

  3  administrator and the Agency for Health Care Administration,

  4  the nursing home administrator shall arrange a meeting for

  5  viewing or listening to the recording of the activity as soon

  6  as is practicable. The following persons must be at the

  7  meeting:

  8         1.  The resident or the resident's legal

  9  representative;

10         2.  A long-term care ombudsman, if requested by the

11  resident or the resident's legal representative;

12         3.  A quality-of-care monitor from the Agency for

13  Health Care Administration;

14         4.  The nursing home's designated risk manager; and

15         5.  The nursing home administrator.

16         (b)  When a questionable activity that has purportedly

17  occurred in a common area of the nursing home is reported to

18  the nursing home administrator and the Agency for Health Care

19  Administration, the nursing home administrator shall arrange a

20  meeting for viewing or listening to the recording of the

21  activity as soon as is practicable. The following persons must

22  be at the meeting:

23         1.  The resident or residents involved in the

24  questionable activity, or the resident's or residents' legal

25  representatives;

26         2.  A long-term care ombudsman, if requested by the

27  resident or the resident's legal representative;

28         3.  A representative of the nursing home's resident

29  council;

30         4.  A quality-of-care monitor from the Agency for

31  Health Care Administration;


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    CS for SB 1714                                 First Engrossed



  1         5.  The nursing home's designated risk manager; and

  2         6.  The nursing home administrator.

  3         (c)  The purpose of such a meeting is to facilitate

  4  discussion of the quality of care being provided to the

  5  resident and, if necessary, how to improve the quality of care

  6  being provided.

  7         (d)  The Agency for Health Care Administration may take

  8  any regulatory action authorized under part II of chapter 400,

  9  Florida Statutes, in response to a questionable activity

10  documented through electronic monitoring and reported to the

11  agency.

12         (10)  Because of the nature of the pilot project, any

13  activity or information recorded on tape shall be used to

14  improve care and is not admissible as evidence in civil

15  litigation against the nursing home, a licensed health care

16  practitioner, or staff of the nursing home.

17         (11)  Each nursing home that participates in the pilot

18  project shall receive the sum of $10,000 to:

19         (a)  Research and purchase an electronic monitoring

20  system for common areas which would tape activities in the

21  common areas so as to minimize security risks; and

22         (b)  Submit 6-month progress reports to the Agency for

23  Health Care Administration on the status of the pilot project.

24  The reports must describe efforts by the nursing home to

25  inform residents and their legal representatives of the

26  circumstances under which electronic monitoring equipment will

27  be installed in residents' rooms; must provide an evaluation

28  of resident, family, and staff response to the availability

29  and use of electronic monitoring equipment; and must document

30  staff turnover and changes in liability insurance premiums and

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    CS for SB 1714                                 First Engrossed



  1  deductibles attributed to the use of electronic monitoring

  2  equipment.

  3         (12)  The nursing homes that participate in the pilot

  4  project are entitled to a one-time rebasing of operating costs

  5  under the Medicaid program to cover any increased costs in

  6  liability insurance because of the installation of the

  7  electronic monitoring equipment during the 12 months that the

  8  pilot project is in effect and for 6 months thereafter.

  9         (13)  The Agency for Health Care Administration shall

10  convene a panel to advise the agency as it reviews the outcome

11  of the pilot project and produces a report. The panel shall be

12  comprised of a representative of AARP, a member of the clergy,

13  a registered nurse, a physician licensed under chapter 458 or

14  chapter 459, Florida Statutes, a long-term care ombudsman, a

15  representative of the Agency for Health Care Administration,

16  and a representative of the Office of the Attorney General.

17  The Agency for Health Care Administration shall submit to the

18  Governor, the President of the Senate, and the Speaker of the

19  House of Representatives, by October 1, 2003, a report on the

20  outcome of the pilot project.

21         Section 2.  This act shall take effect upon becoming a

22  law.

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