Senate Bill sb0664c1

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    Florida Senate - 2004                            CS for SB 664

    By the Committee on Health, Aging, and Long-Term Care; and
    Senator Saunders




    317-2204-04

  1                      A bill to be entitled

  2         An act relating to health care; amending s.

  3         400.461, F.S.; revising the purpose of part IV

  4         of ch. 400, F.S., to include the licensure of

  5         nurse registries and personal care

  6         organizations; amending s. 400.462, F.S.;

  7         revising definitions; defining the terms

  8         "admission," "advanced registered nurse

  9         practitioner," "direct employee," "personal

10         care organization," and "physician assistant"

11         for purposes of part IV of ch. 400, F.S.;

12         amending s. 400.464, F.S., relating to

13         licensure of home health agencies; revising the

14         licensure period; deleting references to

15         registration regulation; revising and providing

16         additional administrative, civil, and criminal

17         penalties, sanctions, and fines; clarifying

18         provisions exempting from licensure

19         requirements an individual who acts alone;

20         amending s. 400.471, F.S.; revising

21         requirements for license application by a home

22         health agency; authorizing the Agency for

23         Health Care Administration to revoke a license

24         under certain circumstances; authorizing

25         administrative fines; requiring a license

26         processing fee; amending s. 400.487, F.S.;

27         revising requirements for home health agency

28         service agreements and treatment orders;

29         amending s. 400.491, F.S., relating to clinical

30         records; revising the ownership of patient

31         records generated by a home health agency;

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    Florida Senate - 2004                            CS for SB 664
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 1         changing the timeframe for a home health agency

 2         to retain patient records; providing for the

 3         disposition of patient records when a home

 4         health agency ceases business; deleting a

 5         requirement for a service provision plan

 6         pertaining to nonskilled care; deleting

 7         requirements for maintaining such records;

 8         amending s. 400.494, F.S.; providing for the

 9         continued confidentiality of patient

10         information in compliance with federal law;

11         providing for disclosure in accordance with

12         certain specified state laws; deleting a

13         requirement for written consent of the patient

14         or the patient's guardian for disclosure of

15         confidential patient information; deleting an

16         exemption provided for the Medicaid Fraud

17         Control Unit of the Department of Legal

18         Affairs; amending s. 400.495, F.S., relating to

19         the toll-free telephone number for the central

20         abuse hotline; adding references to personal

21         care organizations to conform to changes made

22         by the act; amending s. 400.497, F.S., relating

23         to rulemaking by the Agency for Health Care

24         Administration; authorizing certain rules

25         concerning personal care organizations;

26         amending s. 400.506, F.S.; revising

27         requirements governing nurse registries;

28         revising license fee; increasing the period of

29         licensure; authorizing administrative

30         penalties; revising criminal penalties and

31         sanctions; revising certain requirements

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    Florida Senate - 2004                            CS for SB 664
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 1         pertaining to health care professionals that

 2         provide services on behalf of a nurse registry;

 3         repealing s. 400.509, F.S., relating to the

 4         regulation of certain providers of companion

 5         services and homemaker services exempted from

 6         licensure under ch. 400, F.S.; creating s.

 7         400.5095, F.S.; providing licensure

 8         requirements and penalties for personal care

 9         organizations; providing screening requirements

10         for certain employees and officers of a

11         personal care organization; providing license

12         fees; authorizing the agency to impose

13         administrative fines; authorizing the agency to

14         institute injunctive proceedings; providing

15         penalties; providing requirements for employees

16         of a personal care organization; requiring

17         personal care organizations to prepare and

18         maintain an emergency management plan;

19         requiring the agency to adopt rules governing

20         emergency management plans and governing the

21         licensure of personal care organizations;

22         requiring the agency to classify deficiencies

23         and impose penalties; providing for temporary

24         licenses; amending s. 400.512, F.S., relating

25         to employment screening; providing requirements

26         for the screening of employees of personal care

27         organizations; deleting references to companion

28         service personnel and homemaker service

29         personnel to conform to changes made by the

30         act; amending s. 400.515, F.S.; providing

31         additional circumstances under which the agency

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 1         may petition for an injunction; authorizing the

 2         agency to issue licenses for less than a

 3         biennial period until a certain date; providing

 4         an effective date.

 5  

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

 7  

 8         Section 1.  Subsection (2) of section 400.461, Florida

 9  Statutes, is amended to read:

10         400.461  Short title; purpose.--

11         (2)  The purpose of this part is to provide for the

12  licensure of every home health agency, nurse registry, and

13  personal care organization and to provide for the development,

14  establishment, and enforcement of basic standards that will

15  ensure the safe and adequate care of persons receiving health

16  services in their own homes.

17         Section 2.  Section 400.462, Florida Statutes, is

18  amended to read:

19         400.462  Definitions.--As used in this part, the term:

20         (1)  "Administrator" means a direct employee, as

21  defined in subsection (9), of the home health agency or a

22  related organization,or of a management company that has a

23  contract to manage the home health agency, to whom the

24  governing body has delegated the responsibility for day-to-day

25  administration of the home health agency. The administrator

26  must be a licensed physician, physician assistant, or

27  registered nurse licensed to practice in this state or an

28  individual having at least 1 year of supervisory or

29  administrative experience in home health care or in a facility

30  licensed under chapter 395 or under part II or part III of

31  this chapter.  An administrator may manage a maximum of five

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 1  licensed home health agencies located within one agency

 2  service district or within an immediately contiguous county.

 3  If the home health agency is licensed under this chapter and

 4  is part of a retirement community that provides multiple

 5  levels of care, an employee of the retirement community may

 6  administer the home health agency and up to a maximum of four

 7  entities licensed under this chapter that are owned, operated,

 8  or managed by the same corporate entity.  An administrator

 9  shall designate, in writing, for each licensed entity, a

10  qualified alternate administrator to serve during absences.

11         (2)  "Admission" means a decision by the home health

12  agency during or after an evaluation visit to the patient's

13  home that there is a reasonable expectation that the patient's

14  medical, nursing, and social needs for skilled care can be

15  adequately met by the agency or registry in the patient's

16  place of residence. An admission of a client who does not

17  require skilled care services may be done without an

18  evaluation visit to the home.

19         (3)  "Advanced registered nurse practitioner" means a

20  person licensed in this state to practice professional nursing

21  and certified in advanced or specialized nursing practice, as

22  defined in s. 464.003.

23         (4)(2)  "Agency" means the Agency for Health Care

24  Administration.

25         (5)(3)  "Certified nursing assistant" means any person

26  who has been issued a certificate under part II of chapter

27  464. The licensed home health agency, or licensed nurse

28  registry, or personal care organization shall ensure that the

29  certified nursing assistant or home health aide employed by or

30  under contract with the home health agency, or licensed nurse

31  registry, or personal care organization is adequately trained

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 1  to perform the tasks of a home health aide in the home

 2  setting.

 3         (6)(4)  "Client" means an elderly, handicapped, or

 4  convalescent individual who receives personal care services,

 5  companion services, or homemaker services in the individual's

 6  home or place of residence.

 7         (7)(5)  "Companion" or "sitter" means a person who

 8  spends time with cares for an elderly, handicapped, or

 9  convalescent individual and accompanies such individual on

10  trips and outings and may prepare and serve meals to such

11  individual. A companion may not provide hands-on personal care

12  to a client.

13         (8)(6)  "Department" means the Department of Children

14  and Family Services.

15         (9)  "Direct employee" means an employee for whom one

16  of the following entities pays withholding taxes: a home

17  health agency or personal care organization; a management

18  company that has a contract to manage the home health agency

19  or personal care organization on a day-to-day basis; or an

20  employee leasing company that has a contract with the home

21  health agency or personal care organization to handle the

22  payroll and payroll taxes for the home health agency.

23         (10)(7)  "Director of nursing" means a registered nurse

24  who is a and direct employee, as defined in subsection (9), of

25  the agency and or related business entity who is a graduate of

26  an approved school of nursing and is licensed in this state;

27  who has at least 1 year of supervisory experience as a

28  registered nurse in a licensed home health agency, a facility

29  licensed under chapter 395, or a facility licensed under part

30  II or part III of this chapter; and who is responsible for

31  overseeing the professional nursing and home health aid

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    Florida Senate - 2004                            CS for SB 664
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 1  delivery of services of the agency. A director of nursing An

 2  employee may be the director of nursing of a maximum of five

 3  licensed home health agencies operated by a related business

 4  entity and located within one agency service district or

 5  within an immediately contiguous county.  If the home health

 6  agency is licensed under this chapter and is part of a

 7  retirement community that provides multiple levels of care, an

 8  employee of the retirement community may serve as the director

 9  of nursing of the home health agency and of up to four

10  entities licensed under this chapter which are owned,

11  operated, or managed by the same corporate entity.  A director

12  of nursing shall designate, in writing, for each licensed

13  entity, a qualified alternate registered nurse to serve during

14  the absence of the director of nursing.

15         (11)(8)  "Home health agency" means an organization

16  that provides home health services and staffing services.

17         (12)(9)  "Home health agency personnel" means persons

18  who are employed by or under contract with a home health

19  agency and enter the home or place of residence of patients at

20  any time in the course of their employment or contract.

21         (13)(10)  "Home health services" means health and

22  medical services and medical supplies furnished by an

23  organization to an individual in the individual's home or

24  place of residence.  The term includes organizations that

25  provide one or more of the following:

26         (a)  Nursing care.

27         (b)  Physical, occupational, respiratory, or speech

28  therapy.

29         (c)  Home health aide services.

30         (d)  Dietetics and nutrition practice and nutrition

31  counseling.

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 1         (e)  Medical supplies, restricted to drugs and

 2  biologicals prescribed by a physician.

 3         (14)(11)  "Home health aide" means a person who is

 4  trained or qualified, as provided by rule, and who provides

 5  hands-on personal care, performs simple procedures as an

 6  extension of therapy or nursing services, assists in

 7  ambulation or exercises, or assists in administering

 8  medications as permitted in rule and for which the person has

 9  received training established by the agency under s.

10  400.497(1).

11         (15)(12)  "Homemaker" means a person who performs

12  household chores that include housekeeping, meal planning and

13  preparation, shopping assistance, and routine household

14  activities for an elderly, handicapped, or convalescent

15  individual. A homemaker may not provide hands-on personal care

16  to a client.

17         (16)(13)  "Home infusion therapy provider" means an

18  organization that employs, contracts with, or refers a

19  licensed professional who has received advanced training and

20  experience in intravenous infusion therapy and who administers

21  infusion therapy to a patient in the patient's home or place

22  of residence.

23         (17)(14)  "Home infusion therapy" means the

24  administration of intravenous pharmacological or nutritional

25  products to a patient in his or her home.

26         (18)(15)  "Nurse registry" means any person that

27  procures, offers, promises, or attempts to secure

28  health-care-related contracts for registered nurses, licensed

29  practical nurses, certified nursing assistants, home health

30  aides, companions, or homemakers, who are compensated by fees

31  as independent contractors, including, but not limited to,

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 1  contracts for the provision of services to patients and

 2  contracts to provide private duty or staffing services to

 3  health care facilities licensed under chapter 395 or this

 4  chapter or other business entities.

 5         (19)(16)  "Organization" means a corporation,

 6  government or governmental subdivision or agency, partnership

 7  or association, or any other legal or commercial entity, any

 8  of which involve more than one health care professional

 9  discipline; or a health care professional and a home health

10  aide or certified nursing assistant; more than one home health

11  aide; more than one certified nursing assistant; or a home

12  health aide and a certified nursing assistant.  The term does

13  not include an entity that provides services using only

14  volunteers or only individuals related by blood or marriage to

15  the patient or client.

16         (20)(17)  "Patient" means any person who receives home

17  health services in his or her home or place of residence.

18         (21)(18)  "Personal care" means assistance to a patient

19  in the activities of daily living, such as dressing, bathing,

20  eating, or personal hygiene, and assistance in physical

21  transfer, ambulation, and in administering medications as

22  permitted by rule.

23         (22)  "Personal care organization" means a business

24  that is licensed to provide personal care, homemaker, and

25  companion services by employed caregivers, but that does not

26  provide skilled care services.

27         (23)(19)  "Physician" means a person licensed under

28  chapter 458, chapter 459, chapter 460, or chapter 461.

29         (24)  "Physician assistant" means a person who is a

30  graduate of an approved program or its equivalent, or meets

31  standards approved by the boards, and is licensed to perform

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 1  medical services delegated by the supervising physician, as

 2  defined in s. 458.347 or s. 459.022.

 3         (25)(20)  "Skilled care" means nursing services or

 4  therapeutic services required by law to be delivered by a

 5  health care professional who is licensed under part I of

 6  chapter 464; part I, part III, or part V of chapter 468; or

 7  chapter 486 and who is employed by or under contract with a

 8  licensed home health agency or is referred by a licensed nurse

 9  registry.

10         (26)(21)  "Staffing services" means services provided

11  to a health care facility or other business entity on a

12  temporary basis by licensed health care personnel, including

13  certified nursing assistants and home heath aides who are

14  employed by, or work under the auspices of, a licensed home

15  health agency or who are registered with a licensed nurse

16  registry.

17         Section 3.  Subsections (1) and (4) and paragraphs (b)

18  and (e) of subsection (5) of section 400.464, Florida

19  Statutes, are amended to read:

20         400.464  Home health agencies to be licensed;

21  expiration of license; exemptions; unlawful acts; penalties.--

22         (1)  Any home health agency must be licensed by the

23  agency to operate in this state.  A license issued to a home

24  health agency, unless sooner suspended or revoked, expires 2

25  years 1 year after its date of issuance.

26         (4)(a)  An organization may not provide, offer, or

27  advertise home health services to the public unless the

28  organization has a valid license or is specifically exempted

29  under this part. An organization that offers or advertises to

30  the public any service for which licensure or registration is

31  required under this part must include in the advertisement the

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 1  license number or regulation number issued to the organization

 2  by the agency.  The agency shall assess a fine of not less

 3  than $100 to any licensee or registrant who fails to include

 4  the license or registration number when submitting the

 5  advertisement for publication, broadcast, or printing. The

 6  fine for a second or subsequent offense is $500.  The holder

 7  of a license issued under this part may not advertise or

 8  indicate to the public that it holds a home health agency or

 9  nurse registry license other than the one it has been issued.

10         (b)  The operation or maintenance of an unlicensed home

11  health agency or the performance of any home health services

12  in violation of this part is declared a nuisance, inimical to

13  the public health, welfare, and safety. The agency, or any

14  state attorney may, in addition to other remedies provided in

15  this part, bring an action for an injunction to restrain such

16  violation, or to enjoin the future operation or maintenance of

17  the home health agency or the provision of home health

18  services in violation of this part, until compliance with this

19  part or the rules adopted under this part has been

20  demonstrated to the satisfaction of the agency.

21         (c)(b)  A person who violates paragraph (a) is subject

22  to an injunctive proceeding under s. 400.515.  A violation of

23  paragraph (a) is a deceptive and unfair trade practice and

24  constitutes a violation of the Florida Deceptive and Unfair

25  Trade Practices Act under part II of chapter 501.

26         (d)(c)  A person who violates the provisions of

27  paragraph (a) commits a felony misdemeanor of the third second

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

29  or s. 775.084.  Any person who commits a second or subsequent

30  violation commits a felony misdemeanor of the second first

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

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 1  or s. 775.084.  Each day of continuing violation constitutes a

 2  separate offense.

 3         (e)  Any person who owns, operates, or maintains an

 4  unlicensed home health agency and who, within 10 working days

 5  after receiving notification from the agency, fails to cease

 6  operation and apply for a license under this part commits a

 7  felony of the third degree, punishable as provided in s.

 8  775.082, s. 775.083, or s. 775.084. Each day of continued

 9  operation is a separate offense.

10         (f)  Any home health agency that fails to cease

11  operation after agency notification may be fined $500 for each

12  day of noncompliance.

13         (5)  The following are exempt from the licensure

14  requirements of this part:

15         (b)  Home health services provided by a state agency,

16  either directly or through a contractor with:

17         1.  The Department of Elderly Affairs.

18         2.  The Department of Health, a community health

19  center, or a rural health network that furnishes home visits

20  for the purpose of providing environmental assessments, case

21  management, health education, personal care services, family

22  planning, or followup treatment, or for the purpose of

23  monitoring and tracking disease.

24         3.  Services provided to persons who have developmental

25  disabilities, as defined in s. 393.063(12).

26         4.  Companion and sitter organizations that were

27  registered under s. 400.509(1) on January 1, 1999, and were

28  authorized to provide personal services under s. 393.063(33)

29  under a developmental services provider certificate on January

30  1, 1999, may continue to provide such services to past,

31  

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 1  present, and future clients of the organization who need such

 2  services, notwithstanding the provisions of this act.

 3         5.  The Department of Children and Family Services.

 4         (e)  An individual who acts alone, in his or her

 5  individual capacity, and who is not employed by or affiliated

 6  with a licensed home health agency, or registered with a

 7  licensed nurse registry, or a personal care organization.

 8  This exemption does not entitle an individual to perform home

 9  health services without the required professional license.

10         Section 4.  Section 400.471, Florida Statutes, is

11  amended to read:

12         400.471  Application for license; fee; provisional

13  license; temporary permit.--

14         (1)  Application for an initial license or for renewal

15  of an existing license must be made under oath to the agency

16  on forms furnished by it and must be accompanied by the

17  appropriate license fee as provided in subsection (8).  The

18  agency must take final action on an initial licensure

19  application within 60 days after receipt of all required

20  documentation.

21         (2)  The applicant must file with the application

22  satisfactory proof that the home health agency is in

23  compliance with this part and applicable rules, including:

24         (a)  A listing of services to be provided, either

25  directly by the applicant or through contractual arrangements

26  with existing providers;

27         (b)  The number and discipline of professional staff to

28  be employed; and

29         (c)  Proof of financial ability to operate.

30         (3)  An applicant for initial licensure must

31  demonstrate financial ability to operate by submitting a

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 1  balance sheet and income and expense statement for the first 2

 2  years of operation which provide evidence of having sufficient

 3  assets, credit, and projected revenues to cover liabilities

 4  and expenses. The applicant shall have demonstrated financial

 5  ability to operate if the applicant's assets, credit, and

 6  projected revenues meet or exceed projected liabilities and

 7  expenses.  All documents required under this subsection must

 8  be prepared in accordance with generally accepted accounting

 9  principles, and must be compiled the financial statement must

10  be signed by a certified public accountant.

11         (4)  Each applicant for licensure must comply with the

12  following requirements:

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

14  application, the agency shall require background screening of

15  the applicant, in accordance with the level 2 standards for

16  screening set forth in chapter 435. As used in this

17  subsection, the term "applicant" means the administrator, or a

18  similarly titled person who is responsible for the day-to-day

19  operation of the licensed home health agency, and the

20  financial officer, or similarly titled individual who is

21  responsible for the financial operation of the licensed home

22  health agency.

23         (b)  The agency may require background screening for a

24  member of the board of directors of the licensee or an officer

25  or an individual owning 5 percent or more of the licensee if

26  the agency reasonably suspects that such individual has been

27  convicted of an offense prohibited under the level 2 standards

28  for screening set forth in chapter 435.

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

30  screening requirements of chapter 435 which has been submitted

31  within the previous 5 years in compliance with any other

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 1  health care or assisted living licensure requirements of this

 2  state is acceptable in fulfillment of paragraph (a). Proof of

 3  compliance with background screening which has been submitted

 4  within the previous 5 years to fulfill the requirements of the

 5  Financial Services Commission and the Office of Insurance

 6  Regulation pursuant to chapter 651 as part of an application

 7  for a certificate of authority to operate a continuing care

 8  retirement community is acceptable in fulfillment of the

 9  Department of Law Enforcement and Federal Bureau of

10  Investigation background check.

11         (d)  A provisional license may be granted to an

12  applicant when each individual required by this section to

13  undergo background screening has met the standards for the

14  Department of Law Enforcement background check, but the agency

15  has not yet received background screening results from the

16  Federal Bureau of Investigation. A standard license may be

17  granted to the licensee upon the agency's receipt of a report

18  of the results of the Federal Bureau of Investigation

19  background screening for each individual required by this

20  section to undergo background screening which confirms that

21  all standards have been met, or upon the granting of a

22  disqualification exemption by the agency as set forth in

23  chapter 435. Any other person who is required to undergo level

24  2 background screening may serve in his or her capacity

25  pending the agency's receipt of the report from the Federal

26  Bureau of Investigation. However, the person may not continue

27  to serve if the report indicates any violation of background

28  screening standards and a disqualification exemption has not

29  been requested of and granted by the agency as set forth in

30  chapter 435.

31  

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

 2  application, a description and explanation of any exclusions,

 3  permanent suspensions, or terminations of the licensee or

 4  potential licensee from the Medicare or Medicaid programs.

 5  Proof of compliance with the requirements for disclosure of

 6  ownership and control interest under the Medicaid or Medicare

 7  programs may be accepted in lieu of this submission.

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

 9  description and explanation of any conviction of an offense

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

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

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

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

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

15  serves solely in a voluntary capacity for the corporation or

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

17  operational decisions of the corporation or organization,

18  receives no remuneration for his or her services on the

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

20  financial interest and has no family members with a financial

21  interest in the corporation or organization, provided that the

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

23  include in the application a statement affirming that the

24  director's relationship to the corporation satisfies the

25  requirements of this paragraph.

26         (g)  A license may not be granted to an applicant if

27  the applicant, administrator, or financial officer has been

28  found guilty of, regardless of adjudication, or has entered a

29  plea of nolo contendere or guilty to, any offense prohibited

30  under the level 2 standards for screening set forth in chapter

31  

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 1  435, unless an exemption from disqualification has been

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

 3         (h)  The agency may deny or revoke licensure if the

 4  applicant: 

 5         1.  Has falsely represented a material fact in the

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

 7  omitted any material fact from the application required by

 8  paragraph (e) or paragraph (f); or

 9         2.  has been or is currently excluded, suspended,

10  terminated from, or has involuntarily withdrawn from

11  participation in this state's Medicaid program, or the

12  Medicaid program of any other state, or from participation in

13  the Medicare program or any other governmental or private

14  health care or health insurance program.

15         (i)  An application for license renewal must contain

16  the information required under paragraphs (e) and (f).

17         (5)  The agency may deny or revoke licensure if the

18  applicant has falsely represented a material fact, or has

19  omitted any material fact, from the application required by

20  this section.

21         (6)(5)  The home health agency must also obtain and

22  maintain the following insurance coverages in an amount of not

23  less than $250,000 per claim, and the home health agency must

24  submit proof of coverage with an initial application for

25  licensure and with each annual application for license

26  renewal:

27         (a)  Malpractice insurance as defined in s.

28  624.605(1)(k);

29         (b)  Liability insurance as defined in s.

30  624.605(1)(b).

31  

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 1         (7)(6)  Sixty Ninety days before the expiration date,

 2  an application for renewal must be submitted to the agency

 3  under oath on forms furnished by it, and a license must be

 4  renewed if the applicant has met the requirements established

 5  under this part and applicable rules. If a renewal application

 6  is not received by the agency 60 days in advance of the

 7  license expiration date, the agency shall notify the licensee

 8  of the administrative fine for a late application under this

 9  subsection within 10 days after the date the renewal

10  application was due. The home health agency must file with the

11  application satisfactory proof that it is in compliance with

12  this part and applicable rules.  If there is evidence of

13  financial instability, the home health agency must submit

14  satisfactory proof of its financial ability to comply with the

15  requirements of this part. The agency shall impose an

16  administrative fine of $50 per day for each day the home

17  health agency fails to file an application within the

18  timeframe specified in this subsection. Each day of continuing

19  violation is a separate violation; however, the aggregate of

20  such fines may not exceed $500. If a renewal application is

21  not received by the agency 60 days in advance of the license

22  expiration date, the agency shall notify the licensee of this

23  late fee within 10 days after the date the renewal application

24  was due.

25         (8)(7)  When transferring the ownership of a home

26  health agency, the transferee must submit an application for a

27  license at least 60 days before the effective date of the

28  transfer. If the application is filed late, an administrative

29  fine shall be imposed in the amount of $50 per day. Each day

30  of continuing violation is a separate violation; however, the

31  aggregate of such fines may not exceed $500.  If the home

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 1  health agency is being leased, a copy of the lease agreement

 2  must be filed with the application.

 3         (9)(a)  Each applicant for initial licensure, renewal,

 4  or change of ownership must pay a license processing fee that

 5  may not exceed $2,000. All fees paid under this paragraph

 6  shall be deposited in the Health Care Trust Fund.

 7         (b)  The agency shall accept, in lieu of its own

 8  periodic licensure survey, submission of the survey of an

 9  accrediting organization if the accreditation of the licensed

10  home health agency is not provisional and if the licensed home

11  health agency authorizes release of, and the agency receives

12  the report of, the accrediting organization.

13         (10)(8)  The license fee and annual renewal fee

14  required of a home health agency are nonrefundable. The agency

15  shall set the license processing fees in an amount that is

16  sufficient to cover its costs in carrying out its

17  responsibilities under this part, but not to exceed $1,000.

18  However, state, county, or municipal governments applying for

19  licenses under this part are exempt from the payment of

20  license fees.  All fees collected under this part must be

21  deposited in the Health Care Trust Fund for the administration

22  of this part.

23         (11)(9)  The license must be displayed in a conspicuous

24  place in the administrative office of the home health agency

25  and is valid only while in the possession of the person to

26  which it is issued.  The license may not be sold, assigned, or

27  otherwise transferred, voluntarily or involuntarily, and is

28  valid only for the home health agency and location for which

29  originally issued.

30         (12)(10)  A home health agency against whom a

31  revocation or suspension proceeding is pending at the time of

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 1  license renewal may be issued a provisional license effective

 2  until final disposition by the agency of such proceedings. If

 3  judicial relief is sought from the final disposition, the

 4  court that has jurisdiction may issue a temporary permit for

 5  the duration of the judicial proceeding.

 6         (13)(11)  The agency may not issue a license designated

 7  as certified to a home health agency that fails to satisfy the

 8  requirements of a Medicare certification survey from the

 9  agency.

10         (14)(12)  The agency may not issue a license to a home

11  health agency that has any unpaid fines assessed under this

12  part.

13         Section 5.  Section 400.487, Florida Statutes, is

14  amended to read:

15         400.487  Home health service agreements; physician's,

16  physician's assistant's, and advanced registered nurse

17  practitioner's treatment orders; patient assessment;

18  establishment and review of plan of care; provision of

19  services; orders not to resuscitate.--

20         (1)  Services provided by a home health agency must be

21  covered by an agreement between the home health agency and the

22  patient or the patient's legal representative specifying the

23  home health services to be provided, the rates or charges for

24  services paid with private funds, and the sources method of

25  payment, which may include Medicare, Medicaid, private

26  insurance, personal funds, or a combination thereof. A home

27  health agency providing skilled care must make an assessment

28  of the patient's needs within 48 hours after the start of

29  services.

30         (2)  When required by the provisions of chapter 464;

31  part I, part III, or part V of chapter 468; or chapter 486,

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 1  the attending physician, physician's assistant, or advanced

 2  registered nurse practitioner, acting within his or her

 3  respective scope of practice, shall for a patient who is to

 4  receive skilled care must establish treatment orders for a

 5  patient who is to receive skilled care. The treatment orders

 6  must be signed by the physician, physician's assistant, or

 7  advanced registered nurse practitioner before a claim for

 8  payment for the skilled services is submitted by the home

 9  health agency. If the claim is submitted to a managed care

10  organization, the treatment orders must be signed in the time

11  allowed under the provider agreement. The treatment orders

12  shall within 30 days after the start of care and must be

13  reviewed, as frequently as the patient's illness requires, by

14  the physician, physician's assistant, or advanced registered

15  nurse practitioner in consultation with the home health agency

16  personnel that provide services to the patient.

17         (3)  A home health agency shall arrange for supervisory

18  visits by a registered nurse to the home of a patient

19  receiving home health aide services in accordance with the

20  patient's direction, and approval, and agreement to pay the

21  charge for the visits.

22         (4)  Each patient has the right to be informed of and

23  to participate in the planning of his or her care. Each

24  patient must be provided, upon request, a copy of the plan of

25  care established and maintained for that patient by the home

26  health agency.

27         (5)  When nursing services are ordered, the home health

28  agency to which a patient has been admitted for care must

29  provide the initial admission visit, all service evaluation

30  visits, and the discharge visit by qualified personnel who are

31  on the payroll of, and to whom an IRS payroll form W-2 will be

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 1  issued by, the home health agency. Services provided by others

 2  under contractual arrangements to a home health agency must be

 3  monitored and managed by the admitting home health agency. The

 4  admitting home health agency is fully responsible for ensuring

 5  that all care provided through its employees or contract staff

 6  is delivered in accordance with this part and applicable

 7  rules.

 8         (6)  The skilled care services provided by a home

 9  health agency, directly or under contract, must be supervised

10  and coordinated in accordance with the plan of care.

11         (7)  Home health agency personnel may withhold or

12  withdraw cardiopulmonary resuscitation if presented with an

13  order not to resuscitate executed pursuant to s. 401.45. The

14  agency shall adopt rules providing for the implementation of

15  such orders. Home health personnel and agencies shall not be

16  subject to criminal prosecution or civil liability, nor be

17  considered to have engaged in negligent or unprofessional

18  conduct, for withholding or withdrawing cardiopulmonary

19  resuscitation pursuant to such an order and rules adopted by

20  the agency.

21         Section 6.  Section 400.491, Florida Statutes, is

22  amended to read:

23         400.491  Clinical records.--

24         (1)  The home health agency must maintain for each

25  patient who receives skilled care a clinical record that

26  includes pertinent past and current medical, nursing, social

27  and other therapeutic information, the treatment orders, and

28  other such information as is necessary for the safe and

29  adequate care of the patient.  When home health services are

30  terminated, the record must show the date and reason for

31  termination.  Such records are considered patient records

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 1  under s. 456.057, and must be maintained by the home health

 2  agency for 6 5 years following termination of services.  If a

 3  patient transfers to another home health agency, a copy of his

 4  or her record must be provided to the other home health agency

 5  upon request.

 6         (2)  If a licensed home health agency ceases to remain

 7  in business, it shall notify each patient, whose clinical

 8  records it has in its possession, of the fact that it is

 9  ceasing operations and give each patient 15 calendar days to

10  retrieve his or her clinical record at a specified location

11  within 2 hours' driving time of the patient's residence and,

12  at a minimum, between the hours of 10 a.m. and 3 p.m. Monday

13  through Friday. The home health agency must maintain for each

14  client who receives nonskilled care a service provision plan.

15  Such records must be maintained by the home health agency for

16  1 year following termination of services.

17         Section 7.  Section 400.494, Florida Statutes, is

18  amended to read:

19         400.494  Information about patients confidential.--

20         (1)  Information about patients received by persons

21  employed by, or providing services to, a home health agency or

22  received by the licensing agency through reports or inspection

23  shall be confidential and exempt from the provisions of s.

24  119.07(1) and shall not be disclosed to a any person, other

25  than the patient, only as permitted under the provisions of 45

26  C.F.R. ss. 160.102, 160.103, and 164, subpart A, commonly

27  referred to as the HIPAA Privacy Regulation; except that

28  clinical records described in ss. 381.004, 384.29, 385.202,

29  392.65, 394.4615, 395.404, 397.501, and 760.40 shall be

30  disclosed as authorized in those sections without the written

31  consent of that patient or the patient's guardian.

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 1         (2)  This section does not apply to information

 2  lawfully requested by the Medicaid Fraud Control Unit of the

 3  Department of Legal Affairs.

 4         Section 8.  Section 400.495, Florida Statutes, is

 5  amended to read:

 6         400.495  Notice of toll-free telephone number for

 7  central abuse hotline.--On or before the first day home health

 8  services are provided to a patient, any home health agency, or

 9  nurse registry, or personal care organization licensed under

10  this part must inform the patient and his or her immediate

11  family, if appropriate, of the right to report abusive,

12  neglectful, or exploitative practices.  The statewide

13  toll-free telephone number for the central abuse hotline must

14  be provided to patients in a manner that is clearly legible

15  and must include the words: "To report abuse, neglect, or

16  exploitation, please call toll-free ...(phone number)...." The

17  Agency for Health Care Administration shall adopt rules that

18  provide for 90 days' advance notice of a change in the

19  toll-free telephone number and that outline due process

20  procedures, as provided under chapter 120, for home health

21  agency personnel, and nurse registry personnel, and personal

22  care organization personnel who are reported to the central

23  abuse hotline.  Home health agencies, and nurse registries,

24  and personal care organizations shall establish appropriate

25  policies and procedures for providing such notice to patients.

26         Section 9.  Section 400.497, Florida Statutes, are

27  amended to read:

28         400.497  Rules establishing minimum standards.--The

29  agency shall adopt, publish, and enforce rules to administer

30  implement this part, including, as applicable, ss. 400.506 and

31  

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 1  400.5095 400.509, which must provide reasonable and fair

 2  minimum standards relating to:

 3         (1)  The home health aide competency test and home

 4  health aide training. The agency shall create the home health

 5  aide competency test and establish the curriculum and

 6  instructor qualifications for home health aide training.

 7  Licensed home health agencies may provide this training and

 8  shall furnish documentation of such training to other licensed

 9  home health agencies upon request. Successful passage of the

10  competency test by home health aides may be substituted for

11  the training required under this section and any rule adopted

12  pursuant thereto.

13         (2)  Shared staffing. The agency shall allow shared

14  staffing if the home health agency is part of a retirement

15  community that provides multiple levels of care, is located on

16  one campus, is licensed under this chapter, and otherwise

17  meets the requirements of law and rule.

18         (3)  The criteria for the frequency of onsite licensure

19  surveys.

20         (4)  Licensure application and renewal.

21         (5)  The requirements for onsite and electronic

22  accessibility of supervisory personnel of home health agencies

23  and personal care organizations.

24         (6)  Information to be included in patients' records.

25         (7)  Geographic service areas.

26         (8)  Preparation of a comprehensive emergency

27  management plan pursuant to s. 400.492.

28         (a)  The Agency for Health Care Administration shall

29  adopt rules establishing minimum criteria for the plan and

30  plan updates, with the concurrence of the Department of Health

31  and in consultation with the Department of Community Affairs.

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 1         (b)  The rules must address the requirements in s.

 2  400.492. In addition, the rules shall provide for the

 3  maintenance of patient-specific medication lists that can

 4  accompany patients who are transported from their homes.

 5         (c)  The plan is subject to review and approval by the

 6  county health department. During its review, the county health

 7  department shall ensure that the following agencies, at a

 8  minimum, are given the opportunity to review the plan:

 9         1.  The local emergency management agency.

10         2.  The Agency for Health Care Administration.

11         3.  The local chapter of the American Red Cross or

12  other lead sheltering agency.

13         4.  The district office of the Department of Children

14  and Family Services.

15  

16  The county health department shall complete its review within

17  60 days after receipt of the plan and shall either approve the

18  plan or advise the home health agency of necessary revisions.

19         (d)  For any home health agency that operates in more

20  than one county, the Department of Health shall review the

21  plan, after consulting with all of the county health

22  departments, the agency, and all the local chapters of the

23  American Red Cross or other lead sheltering agencies in the

24  areas of operation for that particular home health agency. The

25  Department of Health shall complete its review within 90 days

26  after receipt of the plan and shall either approve the plan or

27  advise the home health agency of necessary revisions. The

28  Department of Health shall make every effort to avoid imposing

29  differing requirements based on differences between counties

30  on the home health agency.

31  

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 1         (e)  The requirements in this subsection do not apply

 2  to:

 3         1.  A facility that is certified under chapter 651 and

 4  has a licensed home health agency used exclusively by

 5  residents of the facility; or

 6         2.  A retirement community that consists of residential

 7  units for independent living and either a licensed nursing

 8  home or an assisted living facility, and has a licensed home

 9  health agency used exclusively by the residents of the

10  retirement community, provided the comprehensive emergency

11  management plan for the facility or retirement community

12  provides for continuous care of all residents with special

13  needs during an emergency.

14         Section 10.  Subsections (3), (5), (7), (8), (10),

15  (13), (14), and (17) of section 400.506, Florida Statutes, are

16  amended to read:

17         400.506  Licensure of nurse registries; requirements;

18  penalties.--

19         (3)  Each applicant for initial licensure, license

20  renewal, or change of ownership shall pay a license processing

21  fee that may not exceed $2,000. All fees paid under this

22  subsection shall be deposited in the Health Care Trust Fund.

23  Application for license must be made to the Agency for Health

24  Care Administration on forms furnished by it and must be

25  accompanied by the appropriate licensure fee, as established

26  by rule and not to exceed the cost of regulation under this

27  part.  The licensure fee for nurse registries may not exceed

28  $1,000 and must be deposited in the Health Care Trust Fund.

29         (5)  A license issued for the operation of a nurse

30  registry, unless sooner suspended or revoked, expires 2 years

31  1 year after its date of issuance. Sixty days before the

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 1  expiration date, an application for renewal must be submitted

 2  to the Agency for Health Care Administration on forms

 3  furnished by it.  The Agency for Health Care Administration

 4  shall renew the license if the applicant has met the

 5  requirements of this section and applicable rules.  A nurse

 6  registry against which a revocation or suspension proceeding

 7  is pending at the time of license renewal may be issued a

 8  conditional license effective until final disposition by the

 9  Agency for Health Care Administration of such proceedings.  If

10  judicial relief is sought from the final disposition, the

11  court having jurisdiction may issue a conditional license for

12  the duration of the judicial proceeding.

13         (7)  A person that provides, offers, or advertises to

14  the public that it provides any service for which licensure is

15  required under this section must include in such advertisement

16  the license number issued to it by the Agency for Health Care

17  Administration. The agency shall assess a fine of not less

18  than $100 against any licensee who fails to include the

19  license number when submitting the advertisement for

20  publication, broadcast, or printing. The fine for a second or

21  subsequent offense is $500.

22         (8)(a)  It is unlawful for a person to offer or

23  advertise to the public services as defined by rule without

24  obtaining a valid license from the Agency for Health Care

25  Administration.  It is unlawful for any holder of a license to

26  advertise or hold out to the public that he or she holds a

27  license for other than that for which he or she actually holds

28  a license.  A person who violates this paragraph subsection is

29  subject to injunctive proceedings under s. 400.515.

30         (b)  A person who violates paragraph (a) commits a

31  felony of the third degree, punishable as provided in s.

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 1  775.082, s. 775.083, or s. 775.084. Any person who commits a

 2  second or subsequent violation commits a felony of the second

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

 4  s. 775.084. Each day of continuing violation is a separate

 5  offense.

 6         (c)  Any person who owns, operates, or maintains an

 7  unlicensed nurse registry and who, within 10 working days

 8  after receiving notification from the agency, fails to cease

 9  operation and apply for a license under this part commits a

10  felony of the third degree, punishable as provided in s.

11  775.082, s. 775.083, or s. 775.084. Each day of continued

12  operation is a separate offense.

13         (d)  If a nurse registry fails to cease operation after

14  agency notification, the agency may impose a fine of $500 for

15  each day of noncompliance.

16         (10)(a)  A nurse registry may refer for contract in

17  private residences registered nurses and licensed practical

18  nurses registered and licensed under part I of chapter 464,

19  certified nursing assistants certified under part II of

20  chapter 464, home health aides who present documented proof of

21  successful completion of the training required by rule of the

22  agency, and companions or homemakers for the purposes of

23  providing those services authorized under s. 400.509(1). Each

24  person referred by a nurse registry must provide current

25  documentation that he or she is free from communicable

26  diseases.

27         (b)  A certified nursing assistant or home health aide

28  may be referred for a contract to provide care to a patient in

29  his or her home only if that patient is under a physician's

30  care.  A certified nursing assistant or home health aide

31  referred for contract in a private residence shall be limited

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 1  to assisting a patient with bathing, dressing, toileting,

 2  grooming, eating, physical transfer, and those normal daily

 3  routines the patient could perform for himself or herself were

 4  he or she physically capable.  A certified nursing assistant

 5  or home health aide may not provide medical or other health

 6  care services that require specialized training and that may

 7  be performed only by licensed health care professionals. The

 8  nurse registry shall obtain the name and address of the

 9  attending physician and send written notification to the

10  physician within 48 hours after a contract is concluded that a

11  certified nursing assistant or home health aide will be

12  providing care for that patient.

13         (c)  A registered nurse shall make monthly visits to

14  the patient's home to assess the patient's condition and

15  quality of care being provided by the certified nursing

16  assistant or home health aide. Any condition which in the

17  professional judgment of the nurse requires further medical

18  attention shall be reported to the attending physician and the

19  nurse registry. The assessment shall become a part of the

20  patient's file with the nurse registry and may be reviewed by

21  the agency during their survey procedure.

22         (13)  Each nurse registry must comply with the

23  procedures set forth in s. 400.512 for maintaining records of

24  the work employment history of all persons referred for

25  contract and is subject to the standards and conditions set

26  forth in that section. However, an initial screening may not

27  be required for persons who have been continuously registered

28  with the nurse registry since October 1, 2000 September 30,

29  1990.

30         (14)  The nurse registry must maintain the application

31  on file, and that file must be open to the inspection of the

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 1  Agency for Health Care Administration.  The nurse registry

 2  must maintain on file the name and address of the patient or

 3  client to whom the nurse or other nurse registry personnel is

 4  sent for contract and the amount of the fee received by the

 5  nurse registry. A nurse registry must maintain the file that

 6  includes the application and other applicable documentation

 7  for 3 years after the date of the last file entry of

 8  client-related information.

 9         (17)  All persons referred for contract in private

10  residences by a nurse registry must comply with the following

11  requirements for a plan of treatment:

12         (a)  When, in accordance with the privileges and

13  restrictions imposed upon a nurse under part I of chapter 464,

14  the delivery of care to a patient is under the direction or

15  supervision of a physician or when a physician is responsible

16  for the medical care of the patient, a medical plan of

17  treatment must be established for each patient receiving care

18  or treatment provided by a licensed nurse in the home.  The

19  original medical plan of treatment must be timely signed by

20  the physician, physician's assistant, or advanced registered

21  nurse practitioner, acting within his or her respective scope

22  of practice, and reviewed by him or her in consultation with

23  the licensed nurse at least every 2 months.  Any additional

24  order or change in orders must be obtained from the physician,

25  physician's assistant, or advanced registered nurse

26  practitioner and reduced to writing and timely signed by the

27  physician, physician's assistant, or advanced registered nurse

28  practitioner.  The delivery of care under a medical plan of

29  treatment must be substantiated by the appropriate nursing

30  notes or documentation made by the nurse in compliance with

31  nursing practices established under part I of chapter 464.

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 1         (b)  Whenever a medical plan of treatment is

 2  established for a patient, the initial medical plan of

 3  treatment, any amendment to the plan, additional order or

 4  change in orders, and copy of nursing notes must be filed in

 5  the office of the nurse registry.

 6         Section 11.  Effective July 1, 2005, section 400.509,

 7  Florida Statutes, is repealed.

 8         Section 12.  Effective July 1, 2005, section 400.5095,

 9  Florida Statutes, is created to read:

10         400.5095  Licensure of personal care organizations;

11  requirements; penalties.--

12         (1)  An organization that provides personal care

13  services and does not provide a skilled home health service is

14  exempt from home health licensure under this part but must be

15  licensed as a personal care organization. Each operational

16  site of the personal care organization must be licensed,

17  unless there is more than one site within a county. If there

18  is more than one site within a county, only one license per

19  county is required. Each operational site must be listed on

20  the license.

21         (2)  Each applicant for licensure must comply with the

22  following requirements:

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

24  application, the agency shall require background screening, in

25  accordance with the level 2 standards for screening set forth

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

27  titled individual who is responsible for the daily operation

28  of the personal care organization, and of the financial

29  officer, or other similarly titled individual who is

30  responsible for the financial operation of the personal care

31  organization, including billings for patient care and

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 1  services. The applicant must comply with the procedures for

 2  level 2 background screening as set forth in chapter 435.

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

 4  other individual who is an applicant if the agency has

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

 6  a crime or has committed any other offense prohibited under

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

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

 9  screening requirements of chapter 435 which has been submitted

10  within the previous 5 years in compliance with any other

11  licensure requirements for a health care facility or assisted

12  living facility in this state is acceptable in fulfillment of

13  the requirements of paragraph (a).

14         (d)  A provisional license may be granted to an

15  applicant when each individual required by this section to

16  undergo background screening has met the standards for the

17  background check of the Department of Law Enforcement and

18  before the agency receives background screening results from

19  the Federal Bureau of Investigation. A standard license may be

20  granted to the applicant upon the agency's receipt of a report

21  of the results of the background screening from the Federal

22  Bureau of Investigation for each individual required by this

23  section to undergo background screening which confirms that

24  all standards have been met, or upon the granting of a

25  disqualification exemption by the agency as set forth in

26  chapter 435. Any other person who is required to undergo level

27  2 background screening may serve in his or her capacity

28  pending the agency's receipt of the report from the Federal

29  Bureau of Investigation. However, the person may not continue

30  to serve if the report indicates any violation of background

31  screening standards and a disqualification exemption has not

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 1  been requested of and granted by the agency as set forth in

 2  chapter 435.

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

 4  application, a description and explanation of any exclusions,

 5  permanent suspensions, or terminations of the applicant from

 6  the Medicare or Medicaid programs. Proof of compliance with

 7  the requirements for disclosure of ownership and control

 8  interests under the Medicaid or Medicare programs may be

 9  accepted in lieu of this submission.

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

11  description and explanation of any conviction of an offense

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

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

14  officers, or any individual having an ownership interest of 5

15  percent or more in the assets of the applicant. This

16  requirement does not apply to a director of a not-for-profit

17  corporation or organization if the director serves solely in a

18  voluntary capacity for the corporation or organization, does

19  not regularly take part in the day-to-day operational

20  decisions of the corporation or organization, does not receive

21  remuneration for his or her services on the board of directors

22  of the corporation or organization, and does not have a

23  financial interest and no member of his or her family has a

24  financial interest in the corporation or organization. The

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

26  must include in the application a statement affirming that the

27  director's relationship to the corporation or organization

28  satisfies the requirements of this paragraph.

29         (g)  A license may not be granted to an applicant if

30  the applicant or managing employee has been found guilty of,

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

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 1  contendere or guilty to, any offense prohibited under the

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

 3  unless an exemption from disqualification has been granted by

 4  the agency as set forth in chapter 435.

 5         (h)  The agency may deny or revoke licensure if the

 6  applicant has been or is currently excluded, suspended,

 7  terminated, or has involuntarily withdrawn from participation

 8  in this state's Medicaid program, the Medicaid program of any

 9  other state, the Medicare program, or any other governmental

10  or private health care program or health insurance program.

11         (i)  An application for license renewal must contain

12  the information required under paragraphs (e) and (f).

13         (3)  The agency may deny or revoke licensure if the

14  applicant has falsely represented a material fact, or has

15  omitted any material fact, from the application required by

16  this section.

17         (4)  Application for licensure must be made to the

18  Agency for Health Care Administration on forms furnished by it

19  and must be accompanied by the appropriate licensure fee, as

20  established by rule, which may not exceed the cost of

21  regulation under this part. The licensure fee for personal

22  care organizations may not exceed $1,800 and must be deposited

23  in the Health Care Trust Fund.

24         (5)  The Agency for Health Care Administration may

25  deny, revoke, or suspend a license or impose an administrative

26  fine in the manner provided in chapter 120 against a personal

27  care organization that:

28         (a)  Fails to comply with this section or applicable

29  rules.

30  

31  

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 1         (b)  Commits an intentional, reckless, or negligent act

 2  that materially affects the health or safety of a person

 3  receiving services.

 4         (6)  A license issued for the operation of a personal

 5  care organization, unless sooner suspended or revoked, expires

 6  2 years after its date of issuance. Sixty days before the

 7  expiration date, an application for renewal must be submitted

 8  to the Agency for Health Care Administration on forms

 9  furnished by it. The agency shall impose a late fee of $50 per

10  day for each day the personal care organization fails to file

11  an application within the timeframe specified in this

12  subsection. Each day of continuing violation is a separate

13  violation; however, the aggregate of such fees may not exceed

14  $500. If a renewal application is not received by the agency

15  60 days in advance of the license expiration date, the agency

16  shall notify the licensee of this late fee within 10 days

17  after the date the renewal application was due. The Agency for

18  Health Care Administration shall renew the license if the

19  applicant has met the requirements of this section and

20  applicable rules. A personal care organization against which a

21  revocation or suspension proceeding is pending at the time of

22  license renewal may be issued a conditional license that is

23  effective until final disposition of such proceeding by the

24  Agency for Health Care Administration. If judicial relief is

25  sought from the final disposition, the court having

26  jurisdiction may issue a conditional license for the duration

27  of the judicial proceeding.

28         (7)  The Agency for Health Care Administration may

29  institute injunctive proceedings under s. 400.515.

30         (8)(a)  A person may not provide, offer, or advertise

31  to the public personal care services without obtaining a valid

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 1  license from the Agency for Health Care Administration. A

 2  person who holds a license may not advertise or hold out to

 3  the public that he or she holds a license other than the

 4  license that he or she actually holds. A person who violates

 5  this subsection is subject to injunctive proceedings under s.

 6  400.515.

 7         (b)  A personal care organization that offers or

 8  advertises to the public services for which licensure is

 9  required under this part must include in the advertisement the

10  license number issued to the organization by the agency. The

11  agency shall assess a fine of $100 to any licensee who fails

12  to include the license number when submitting the

13  advertisement for publication, broadcast, or printing. The

14  fine for a second or subsequent offense is $500. The holder of

15  a license issued under this part may not advertise or indicate

16  to the public that it holds any license other than the one it

17  has been issued.

18         (c)  The operation or maintenance of a unlicensed

19  personal care organization or the performance of any personal

20  care services in violation of this part is declared a

21  nuisance, inimical to the public health, welfare, and safety.

22  The agency or any state attorney may, in addition to other

23  remedies provided in this part, bring an action for an

24  injunction to restrain such violation, or to enjoin the future

25  operation or maintenance of any such personal care

26  organization personal care services in violation of this part,

27  until compliance with this part or the rules adopted under

28  this part has been demonstrated to the satisfaction of the

29  agency.

30         (d)  A violation of paragraph (a) is a deceptive and

31  unfair trade practice and constitutes a violation of the

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 1  Florida Deceptive and Unfair Trade Practices Act under part II

 2  of chapter 501.

 3         (e)  A person who violates paragraph (a) commits a

 4  felony of the third degree, punishable as provided in s.

 5  775.082, s. 775.083, or s. 775.084. Any person who commits a

 6  second or subsequent violation commits a felony of the second

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

 8  s. 775.084. Each day of continuing violation is a separate

 9  offense.

10         (f)  Any person who owns, operates, or maintains an

11  unlicensed personal care organization and who, within 10

12  working days after receiving notification from the agency,

13  fails to cease operation and apply for a license under this

14  part commits a felony of the third degree, punishable as

15  provided in s. 775.082, s. 775.083, or s. 775.084. Each day of

16  continued operation is a separate offense.

17         (g)  Any personal care organization that fails to cease

18  operation after agency notification may be fined $500 for each

19  day of noncompliance.

20         (9)  Any duly authorized officer or employee of the

21  Agency for Health Care Administration may make such

22  inspections and investigations as are necessary to respond to

23  complaints or to determine the state of compliance with this

24  section and applicable rules.

25         (a)  If, in responding to a complaint, an agent or

26  employee of the Agency for Health Care Administration has

27  reason to believe that a crime has been committed, he or she

28  shall notify the appropriate law enforcement agency.

29         (b)  If, in responding to a complaint, an agent or

30  employee of the Agency for Health Care Administration has

31  reason to believe that abuse, neglect, or exploitation has

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 1  occurred according to the definitions in chapter 415, he or

 2  she shall file a report under chapter 415.

 3         (10)(a)  A personal care organization may provide

 4  personal care services in the patient's place of residence or

 5  location through certified nursing assistants or home health

 6  aides who present documented proof of successful completion of

 7  the training required by rule of the agency. Each certified

 8  nursing assistant, home health aide, homemaker, or companion

 9  must provide current documentation that he or she is free from

10  communicable diseases.

11         (b)  Certified nursing assistant or home health aide

12  services shall be limited to assisting a patient with bathing,

13  dressing, toileting, grooming, eating, physical transfer, and

14  those normal daily routines the patient could perform for

15  himself or herself were he or she physically capable. A

16  certified nursing assistant or home health aide may not

17  provide medical services or other health care services that

18  require specialized training and that may be performed only by

19  a licensed health care professional. Providing services beyond

20  the scope authorized under this subsection constitutes the

21  unauthorized practice of medicine or a violation of the Nurse

22  Practice Act and is punishable as provided under chapter 458,

23  chapter 459, or part I of chapter 464.

24         (c)  Personal case organization services must be

25  covered by an agreement between the personal care organization

26  and the patient or the patient's legal representative

27  specifying the services to be provided, the rates or charges

28  for services paid with private funds, and the sources of

29  payment, such as Medicaid, commercial insurance, personal

30  funds, or a combination thereof. A personal care organization

31  shall arrange for supervisory visits by a registered nurse to

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 1  the home of a patient receiving personal care services in

 2  accordance with the patient's direction, approval, and

 3  agreement to pay the charge for the visits.

 4         (11)  Each personal care organization must require

 5  every certified nursing assistant or home health aide to

 6  complete an application form providing the following

 7  information:

 8         (a)  The name, address, date of birth, and social

 9  security number of the applicant.

10         (b)  The educational background and employment history

11  of the applicant.

12         (c)  The number and date of an applicable

13  certification.

14         (d)  When appropriate, information concerning the

15  renewal of the applicable certification.

16         (12)  Each personal care organization must comply with

17  the procedures set forth in s. 400.512 for maintaining records

18  of the employment history of all certified nursing assistants,

19  home health aides, homemakers, and companions that provide

20  services to the patients and clients of the personal care

21  organization. Each personal care organization is subject to

22  the standards and conditions set forth in s. 400.512.

23         (13)  The personal care organization must maintain the

24  application on file and that file must be open to the

25  inspection of the Agency for Health Care Administration. The

26  personal care organization must maintain on file the name and

27  address of the patients or clients to whom the personal care

28  organization personnel provide services. A personal care

29  organization must maintain the file that includes the

30  application and other applicable documentation for 3 years

31  

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 1  after the date of the last file entry of information

 2  concerning a patient or client.

 3         (14)  A personal care organization must provide the

 4  following staff training:

 5         (a)  Upon beginning employment with the personal care

 6  organization, each employee must receive basic written

 7  information about interacting with participants who have

 8  Alzheimer's disease or dementia-related disorders.

 9         (b)  In addition to the information provided under

10  paragraph (a), newly hired personal care organization

11  personnel who will be providing direct care to patients or

12  clients must complete 2 hours of training in Alzheimer's

13  disease and dementia-training in Alzheimer's disease and

14  dementia-related disorders within 9 months after beginning

15  employment with the personal care organization. This training

16  must include, but need not be limited to, an overview of

17  dementia, a demonstration of basic skills in communicating

18  with persons who have dementia, the management of problem

19  behaviors, information about promoting the client's

20  independence in activities of daily living, and instruction in

21  skills for working with families and caregivers.

22         (c)  For certified nursing assistants, the required 2

23  hours of training shall be part of the total hours of training

24  required annually.

25         (d)  The Department of Elderly Affairs, or its

26  designee, must approve the required training. The department

27  must consider for approval training offered in a variety of

28  formats. The department shall keep a list of current providers

29  who are approved to provide the 2-hour training. The

30  department shall adopt rules to establish standards for

31  

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 1  employees who are subject to this training, for the trainers,

 2  and for the training required in this subsection.

 3         (e)  Upon completing the training listed in this

 4  section, the employee shall be issued a certificate that

 5  states that the training mandated under this subsection has

 6  been received. The certificate shall be dated and signed by

 7  the training provider. The certificate is evidence of

 8  completion of this training, and the employee is not required

 9  to repeat this training if the employee changes employment to

10  a different personal care organization.

11         (f)  An employee who is hired on or after July 1, 2005,

12  must complete the training required by this section.

13         (g)  A licensed personal care organization whose

14  unduplicated census during the most recent calendar year was

15  comprised of at least 90 percent of individuals aged 21 years

16  or younger at the date of admission is exempt from the

17  training requirements in this subsection.

18         (h)  A personal care organization licensed under this

19  part which claims that it provides special care for persons

20  who have Alzheimer's disease or other related disorders must

21  disclose in its advertisements or in a separate document those

22  services that distinguish the care as being especially

23  applicable to, or suitable for, such persons. The personal

24  care organization must give a copy of all such advertisements

25  or a copy of the document to each person who requests

26  information about the personal care organization and must

27  maintain a copy of all such advertisements and documents in

28  its records. The Agency for Health Care Administration shall

29  examine all such advertisements and documents in the personal

30  care organization's records as part of the license renewal

31  procedure.

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 1         (15)  Each personal care organization shall assist

 2  persons who would need assistance and sheltering during an

 3  evacuation because of physical, mental, or sensory

 4  disabilities in registering with the appropriate local

 5  emergency management agency pursuant to s. 252.355.

 6         (16)  Each personal care organization shall prepare and

 7  maintain a comprehensive emergency management plan that is

 8  consistent with the criteria in this subsection and with the

 9  local special needs plan. The plan shall be updated annually.

10  The plan must specify how the personal care organization will

11  facilitate the provision of continuous care to its patients

12  who are registered pursuant to s. 252.355 during an emergency

13  that interrupts the provision of care or services in private

14  residencies.

15         (a)  A certified nursing assistant or home health aide

16  who cares for persons registered pursuant to s. 252.355 must

17  include in each patient record a description of how care will

18  be continued during a disaster or emergency that interrupts

19  the provision of care in the patient's home. It shall be the

20  responsibility of the personal care organization to ensure

21  that continuous care is provided.

22         (b)  Each personal care organization shall maintain a

23  current prioritized list of patients in private residences who

24  are registered pursuant to s. 252.355 and who need continued

25  services during a disaster or emergency. This list must

26  indicate, for each patient, if the patient or client is to be

27  transported to a special needs shelter. The personal care

28  organizations shall make this list available to county health

29  departments and to local emergency management agencies upon

30  request.

31  

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 1         (c)  Each certified nursing assistant or home health

 2  aide who is caring for a patient who is registered pursuant to

 3  s. 252.355 shall provide a list of the patient's medication

 4  and equipment needs to the personal care organization, which

 5  shall make this information available to county health

 6  departments and to local emergency management agencies upon

 7  request.

 8         (d)  A certified nursing assistant or home health aide

 9  is not required to continue to provide care to patients or

10  clients in emergency situations that are beyond the person's

11  control and that make it impossible to provide services, such

12  as when roads are impassable or when a patient or client does

13  not go to the location specified in his or her patient record.

14         (e)  The Agency for Health Care Administration, with

15  the concurrence of the Department of Health and in

16  consultation with the Department of Community Affairs, shall

17  adopt rules establishing minimum criteria for the

18  comprehensive emergency management plan and the plan updates

19  required by this subsection.

20         (17)  Each personal care organization must comply with

21  the notice requirements of s. 400.495, relating to the

22  reporting of abuse.

23         (18)  In addition to any other penalties imposed

24  pursuant to this section or part, the agency may assess costs

25  related to an investigation that results in a successful

26  prosecution, excluding costs associated with an attorney's

27  time. If the agency imposes such an assessment and the

28  assessment is not paid or is not the subject of a pending

29  appeal prior to the renewal of the license, the license may

30  not be renewed until the assessment is paid or arrangements

31  for payment of the assessment are made.

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 1         (19)  The Agency for Health Care Administration shall

 2  adopt rules to administer this section.

 3         (20)  The agency shall classify deficiencies and impose

 4  penalties for various classes of deficiencies in accordance

 5  with the following schedule:

 6         (a)  A class I deficiency is any act, omission, or

 7  practice that results in a patient's death, disablement, or

 8  permanent injury, or places a patient at imminent risk of

 9  death, disablement, or permanent injury. Upon finding a class

10  I deficiency, the agency may impose an administrative fine in

11  the amount of $5,000 for each occurrence and each day that the

12  deficiency exists. In addition, the agency may immediately

13  revoke the license, or impose a moratorium on the admission of

14  new patients, until the factors causing the deficiency have

15  been corrected.

16         (b)  A class II deficiency is any act, omission, or

17  practice that has a direct adverse effect on the health,

18  safety, or security of a patient. Upon finding a class II

19  deficiency, the agency may impose an administrative fine in

20  the amount of $1,000 for each occurrence and each day that the

21  deficiency exists. In addition, the agency may suspend the

22  license, or impose a moratorium on the admission of new

23  patients, until the deficiency has been corrected.

24         (c)  A class III deficiency is any act, omission, or

25  practice that has an indirect, adverse effect on the health,

26  safety, or security of a patient. Upon finding an uncorrected

27  or repeated class III deficiency, the agency may impose an

28  administrative fine not to exceed $500 for each occurrence and

29  each day that the uncorrected or repeated deficiency exists.

30         (d)  A class IV deficiency is any act, omission, or

31  practice related to required reports, forms, or documents

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 1  which does not have the potential of negatively affecting

 2  patients. These violations are of a type that the agency

 3  determines do not threaten the health, safety, or security of

 4  patients. Upon finding an uncorrected or repeated class IV

 5  deficiency, the agency may impose an administrative fine not

 6  to exceed $200 for each occurrence and each day that the

 7  uncorrected or repeated deficiency exists.

 8         (21)  Applicants that submit an application before

 9  January 1, 2006, which meets all requirements for initial

10  licensure as specified in this section shall receive a

11  temporary license until the completion of the initial survey

12  verifying that the applicant meets all requirements in rules

13  as authorized in ss. 400.5095 and 400.497.

14         Section 13.  Section 400.512, Florida Statutes, is

15  amended to read:

16         400.512  Screening of home health agency personnel;

17  nurse registry personnel; and personal care organization

18  personnel companions and homemakers.--The agency shall require

19  employment or contractor screening as provided in chapter 435,

20  using the level 1 standards for screening set forth in that

21  chapter, for home health agency personnel; persons referred

22  for employment by nurse registries; and personal care

23  organization personnel persons employed by companion or

24  homemaker services registered under s. 400.509.

25         (1)(a)  The Agency for Health Care Administration may,

26  upon request, grant exemptions from disqualification from

27  employment or contracting under this section as provided in s.

28  435.07, except for health care practitioners licensed by the

29  Department of Health or a regulatory board within that

30  department.

31  

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 1         (b)  The appropriate regulatory board within the

 2  Department of Health, or that department itself when there is

 3  no board, may, upon request of the licensed health care

 4  practitioner, grant exemptions from disqualification from

 5  employment or contracting under this section as provided in s.

 6  435.07.

 7         (2)  The administrator of each home health agency, the

 8  managing employee of each nurse registry, and the managing

 9  employee of each personal care organization companion or

10  homemaker service registered under s. 400.509 must sign an

11  affidavit annually, under penalty of perjury, stating that all

12  personnel hired or, contracted with, or registered on or after

13  October 1, 2000 1994, who enter the home of a patient or

14  client in their service capacity have been screened and that

15  its remaining personnel have worked for the home health agency

16  or personal care organization registrant continuously since

17  before October 1, 2000 1994.

18         (3)  As a prerequisite to operating as a home health

19  agency, nurse registry, or personal care organization

20  companion or homemaker service under s. 400.509, the

21  administrator or managing employee, respectively, must submit

22  to the agency his or her name and any other information

23  necessary to conduct a complete screening according to this

24  section.  The agency shall submit the information to the

25  Department of Law Enforcement for state processing.  The

26  agency shall review the record of the administrator or manager

27  with respect to the offenses specified in this section and

28  shall notify the owner of its findings.  If disposition

29  information is missing on a criminal record, the administrator

30  or manager, upon request of the agency, must obtain and supply

31  within 30 days the missing disposition information to the

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 1  agency.  Failure to supply missing information within 30 days

 2  or to show reasonable efforts to obtain such information will

 3  result in automatic disqualification.

 4         (4)  Proof of compliance with the screening

 5  requirements of chapter 435 shall be accepted in lieu of the

 6  requirements of this section if the person has been

 7  continuously employed or under contract registered without a

 8  breach in service that exceeds 180 days, the proof of

 9  compliance is not more than 2 years old, and the person has

10  been screened by the Department of Law Enforcement. A home

11  health agency, nurse registry, or personal care organization

12  companion or homemaker service registered under s. 400.509

13  shall directly provide proof of compliance to another home

14  health agency, nurse registry, or personal care organization

15  companion or homemaker service registered under s. 400.509.

16  The recipient home health agency, nurse registry, or personal

17  care organization companion or homemaker service registered

18  under s. 400.509 may not accept any proof of compliance

19  directly from the person who requires screening. Proof of

20  compliance with the screening requirements of this section

21  shall be provided upon request to the person screened by the

22  home health agencies,; nurse registries,; or personal care

23  organizations companion or homemaker services registered under

24  s. 400.509.

25         (5)  There is no monetary liability on the part of, and

26  no cause of action for damages arises against, a licensed home

27  health agency, licensed nurse registry, or personal care

28  organization companion or homemaker service registered under

29  s. 400.509, that, upon notice that the employee or contractor

30  has been found guilty of, regardless of adjudication, or

31  entered a plea of nolo contendere or guilty to, any offense

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 1  prohibited under s. 435.03 or under any similar statute of

 2  another jurisdiction, terminates the employee or contractor,

 3  whether or not the employee or contractor has filed for an

 4  exemption with the agency in accordance with chapter 435 and

 5  whether or not the time for filing has expired.

 6         (6)  The costs of processing the statewide

 7  correspondence criminal records checks must be borne by the

 8  home health agency,; the nurse registry,; or the personal care

 9  organization companion or homemaker service registered under

10  s. 400.509, or by the person being screened, at the discretion

11  of the home health agency, nurse registry, or personal care

12  organization s. 400.509 registrant.

13         (7)(a)  It is a misdemeanor of the first degree,

14  punishable under s. 775.082 or s. 775.083, for any person

15  willfully, knowingly, or intentionally to:

16         1.  Fail, by false statement, misrepresentation,

17  impersonation, or other fraudulent means, to disclose in any

18  application for voluntary or paid employment a material fact

19  used in making a determination as to such person's

20  qualifications to be an employee under this section;

21         2.  Operate or attempt to operate an entity licensed or

22  registered under this part with persons who do not meet the

23  minimum standards for good moral character as contained in

24  this section; or

25         3.  Use information from the criminal records obtained

26  under this section for any purpose other than screening that

27  person for employment as specified in this section or release

28  such information to any other person for any purpose other

29  than screening for employment under this section.

30         (b)  It is a felony of the third degree, punishable

31  under s. 775.082, s. 775.083, or s. 775.084, for any person

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 1  willfully, knowingly, or intentionally to use information from

 2  the juvenile records of a person obtained under this section

 3  for any purpose other than screening for employment under this

 4  section.

 5         Section 14.  Section 400.515, Florida Statutes, is

 6  amended to read:

 7         400.515  Injunction proceedings.--In addition to the

 8  other powers provided under this chapter, the Agency for

 9  Health Care Administration may institute injunction

10  proceedings in a court of competent jurisdiction to restrain

11  or prevent the establishment or operation of a home health

12  agency, nurse registry, or personal care organization that

13  does not have a license or that is in violation of any

14  provision of this part or any rule adopted pursuant to this

15  part. The Agency for Health Care Administration may also

16  institute injunction proceedings in a court of competent

17  jurisdiction when violation of this part or of applicable

18  rules constitutes an emergency affecting the immediate health

19  and safety of a patient or client.

20         Section 15.  Between July 1, 2005, and June 30, 2006,

21  the Agency for Health Care Administration may issue a license

22  to a personal care organization, nurse registry, or home

23  health agency for less than a 2-year period by charging a

24  prorated licensure fee and specifying a different renewal date

25  than the date that would otherwise be required for biennial

26  licensure.

27         Section 16.  Except as otherwise expressly provided in

28  this act, this act shall take effect July 1, 2004.

29  

30  

31  

                                  50

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






    Florida Senate - 2004                            CS for SB 664
    317-2204-04




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 664

 3                                 

 4  The committee substitute differs from SB 664 in the following
    ways:
 5  
    "Admission" is defined.
 6  
    The licensure fee for nurse registries is increased to $2,000
 7  and the $400 inspection fee is deleted.

 8  The requirement for a registered nurse to visit the home of a
    home health agency's patient is made contingent upon the
 9  patient's agreement to pay for the visit.

10  The repeal of s. 400.509, F.S., is effective July 1, 2005.

11  The creation of s. 400.5095, F.S., is effective July 1, 2005.

12  Applicants for home health agency licensure will not have to
    complete a questionnaire concerning volume data but will
13  provide information about services and staff as required in
    current law.
14  
    AHCA will not send a renewal notice before a home health
15  agency or personal care organization license expires but will
    send a notice of a late fee 10 days after the renewal
16  application was due.

17  The licensure fee for a personal care organization may not
    exceed $1,800.
18  
    Four categories of deficiencies are established for personal
19  care organizations to provide a system under which AHCA could
    assess fines for deficiencies in care.
20  
    The maximum fine of $100 for operating a personal care
21  organization without a license is changed to an absolute $100
    fine.
22  
    To be exempt from background screening requirements, an
23  employee must have been employed continuously since 2000
    rather than since 2002.
24  
    The effective date is July 1, 2004 except as otherwise
25  provided in the bill.

26  

27  

28  

29  

30  

31  

                                  51

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