HB 1267

1
A bill to be entitled
2An act relating to nursing homes; amending s. 400.023,
3F.S.; providing legislative findings; limiting the
4liability of community-based nursing home facilities and
5their subcontractors; providing application; specifying
6nonapplication of limitations of liability to certain
7persons under certain circumstances; defining the term
8"community-based nursing home facility"; providing
9requirements to qualify as a community-based nursing home
10facility; requiring the Agency for Heath Care
11Administration to verify compliance with certain required
12facility criteria; amending s. 633.022, F.S.; requiring
13nursing homes to be protected by certain automatic
14sprinkler systems; providing a schedule; authorizing the
15Division of State Fire Marshal to grant certain time
16extensions; authorizing the division to adopt certain
17rules; providing for administrative sanctions under
18certain circumstances; requiring adjustments to certain
19provider Medicaid rates for reimbursement for Medicaid's
20portion of costs to meet certain requirements; requiring
21funding for such adjustments to come from existing nursing
22home appropriations; creating s. 633.024, F.S.; providing
23legislative findings and intent; creating s. 633.0245,
24F.S.; authorizing the State Fire Marshal to enter into an
25investment agreement with public depositories to establish
26the State Fire Marshal Nursing Home Fire Protection Loan
27Guarantee Program as a limited loan guarantee program to
28retrofit nursing homes with fire protection systems;
29providing investment and agreement limitations; requiring
30the State Fire Marshal to solicit requests for proposals;
31providing for application requirements and procedures;
32providing for review and approval by the State Fire
33Marshal; providing application requirements and procedures
34for program loans by public depositories; providing
35deadlines and limitations; limiting certain claims for
36loss under certain circumstances; providing a definition;
37authorizing the State Fire Marshal to adopt rules;
38providing an effective date.
39
40Be It Enacted by the Legislature of the State of Florida:
41
42     Section 1.  Subsection (8) is added to section 400.023,
43Florida Statutes, to read:
44     400.023  Civil enforcement.--
45     (8)(a)  The Legislature makes the following findings:
46     1.  Liability insurance premiums for community-based
47nursing home facilities have increased dramatically in recent
48years, resulting in increased nursing home care costs for most
49patients and functional unavailability of liability insurance
50for most community-based nursing home facilities.
51     2.  The primary cause of increased liability insurance
52premiums has been the substantial increase in loss payments to
53claimants caused by tremendous increases in the amounts of paid
54claims.
55     3.  The high cost of liability claims for community-based
56nursing home facilities in this state can be substantially
57alleviated by imposing reasonable limitations on damages, while
58preserving the right of either party to have its case heard by a
59jury.
60     4.  Excessive awards of noneconomic damages threaten the
61ability of community-based nursing home facilities to continue
62to provide appropriate care for patients. A reasonable
63limitation on noneconomic damages will reduce the high cost of
64claims without jeopardizing the right of each party to be heard
65by a jury.
66     (b)  In any claim against a community-based nursing home
67facility or a subcontractor of the facility brought pursuant to
68this part alleging a violation of a resident's rights or
69negligence causing injury to or the death of a resident,
70noneconomic damages, as defined in s. 766.202(8), shall be
71limited to $200,000 per claimant regardless of the number of
72defendants. A claims bill may be brought on behalf of a claimant
73pursuant to s. 768.28 for any amount exceeding the limits
74specified in this subsection. Any offset of collateral source
75payments made as of the date of the settlement or judgment shall
76be in accordance with s. 768.76. A community-based facility
77shall not be liable in tort for the acts or omissions of its
78subcontractors or the officers, agents, or employees of its
79subcontractors. The liability of a facility and subcontractors
80pursuant to this subsection shall be exclusive and in place of
81all other liability of such facility and subcontractors, except
82as otherwise provided in this section and in s. 400.0237. The
83same limitation on liability enjoyed by such facilities and
84subcontractors shall extend as well to each employee of the
85facility and the subcontractors when such employee is acting in
86furtherance of the facility's business, including the
87transportation of clients served in privately owned vehicles.
88The limitation on liability shall not be applicable to a
89facility, a subcontractor, or an employee of either who acts in
90a culpably negligent manner or with willful and wanton disregard
91or unprovoked physical aggression when such acts result in
92injury or death or such acts proximately cause such injury or
93death; nor shall the limitation on liability be applicable to
94employees of the same facility or subcontractor when each is
95operating in the furtherance of the facility's business but the
96employees are assigned primarily to unrelated works within
97private or public employment. The same limitation on liability
98enjoyed by a facility and subcontractor shall also apply to any
99sole proprietor, partner, corporate officer, director,
100supervisor, or other person who in the course and scope of his
101or her duties acts in a managerial or policymaking capacity and
102the conduct that caused the alleged injury arose within the
103course and scope of those managerial or policymaking duties.
104"Culpably negligent" means acting with reckless indifference or
105grossly careless disregard of human life.
106     (c)  For the purposes of this subsection, "community-based
107nursing home facility" means a nursing home facility that meets
108all of the following requirements:
109     1.  The number of nursing home beds in the facility may not
110exceed 240.
111     2.  The facility must obtain 400 hours of assistance from
112onsite volunteers each month. The facility must require that
113volunteers sign in and out with staff of the facility upon
114entering or leaving the facility. The facility must maintain
115records of volunteers' names, addresses, and the number of hours
116volunteered in a manner that will enable the agency to verify
117compliance with this subsection.
118     3.  The facility must maintain general and professional
119liability insurance coverage that is in force at all times with
120limits that are not less than $200,000 per claim and not less
121than $600,000 in annual aggregate.
122     4.  The facility is a not-for-profit corporation.
123     (d)  The agency shall verify compliance with paragraph (c)
124at the time of each inspection of a facility that claims to be
125community-based as defined in this subsection.
126     Section 2.  Subsection (4) is added to section 633.022,
127Florida Statutes, to read:
128     633.022  Uniform firesafety standards.--The Legislature
129hereby determines that to protect the public health, safety, and
130welfare it is necessary to provide for firesafety standards
131governing the construction and utilization of certain buildings
132and structures. The Legislature further determines that certain
133buildings or structures, due to their specialized use or to the
134special characteristics of the person utilizing or occupying
135these buildings or structures, should be subject to firesafety
136standards reflecting these special needs as may be appropriate.
137     (4)(a)  Notwithstanding any provision of law to the
138contrary, each nursing home licensed under part II of chapter
139400 shall be protected by an approved, supervised automatic
140sprinkler system in accordance with section 9 of National Fire
141Protection Association, Inc., Life Safety Code, in accordance
142with the following schedule:
143     1.  Each hazardous area of each nursing home shall be
144protected by an approved, supervised automatic sprinkler system
145by no later than December 31, 2008.
146     2.  Each entire nursing home shall be protected by an
147approved, supervised automatic sprinkler system by no later than
148December 31, 2010.
149     (b)  The division may grant up to two 1-year extensions of
150the time limits for compliance in subparagraph (a)2. if the
151division determines that the nursing home has been prevented
152from complying for reasons beyond its control.
153     (c)  The division is authorized to adopt any rule necessary
154for the implementation and enforcement of this subsection. The
155division shall enforce this subsection in accordance with the
156provisions of this chapter, and any nursing home licensed under
157part II of chapter 400 that is in violation of this subsection
158may be subject to administrative sanctions by the division
159pursuant to this chapter.
160     (d)  Adjustments shall be made to the provider Medicaid
161rate to allow reimbursement over a 5-year period for Medicaid's
162portion of the costs incurred to meet the requirements of this
163subsection. Funding for this adjustment shall come from existing
164nursing home appropriations.
165     Section 3.  Section 633.024, Florida Statutes, is created
166to read:
167     633.024  Legislative findings and intent; ensuring
168effective fire protection of vulnerable nursing home residents
169essential; retrofit of existing nursing homes expedited by
170limited state loan guarantee; funding through Insurance
171Regulatory Trust Fund.--
172     (1)  It is the intent of the Legislature to promote the
173essential public purpose of ensuring effective fire protection
174for the safety and welfare of nursing home residents of this
175state who, because of their inability to protect themselves, are
176most vulnerable to catastrophic injury or death in the event of
177a fire. The Legislature finds that this purpose is served by
178requiring the installation of appropriate fire protection
179systems in all nursing home facilities in this state that do not
180currently have fire protection systems in operation for the
181protection of their residents. The Legislature finds that the
182high capital cost of retrofitting appropriate fire protection
183systems at nursing home facilities not originally designed with
184fire protection systems has discouraged the owners and operators
185of such facilities from doing so. The Legislature therefore
186finds that state action to provide a limited state guarantee of
187loans covering these capital costs will expedite the immediate
188installation of fire protection systems at facilities that lack
189such systems and thereby ensure effective protection for those
190nursing home populations that are now most vulnerable to the
191catastrophic effects of fire.
192     (2)  Because the Insurance Regulatory Trust Fund is funded
193by the proceeds of fire insurance premiums written in this
194state, the Legislature finds that it is in the public interest
195for moneys held in the Insurance Regulatory Trust Fund to be
196used to fund the limited loan guarantee program that mobilizes
197private funding for the retrofitting of fire protection systems
198at unprotected nursing homes located in this state.
199     Section 4.  Section 633.0245, Florida Statutes, is created
200to read:
201     633.0245  State Fire Marshal Nursing Home Fire Protection
202Loan Guarantee Program.--
203     (1)  The State Fire Marshal, with the assistance of the
204Division of Treasury of the Department of Financial Services,
205may enter into an investment agreement concerning the investment
206of certain funds held in the Insurance Regulatory Trust Fund for
207the purpose of establishing a limited loan guarantee program to
208be known as the State Fire Marshal Nursing Home Fire Protection
209Loan Guarantee Program. The investment must be limited as
210follows:
211     (a)  Not more than $4 million of the balance in the
212Insurance Regulatory Trust Fund in any fiscal year may be at
213risk at any time for the purpose of limited loan guarantees.
214     (b)  Such funds at risk at any time may not be used to
215guarantee any limited loan guarantee agreement for a period
216longer than 10 years.
217     (c)  No limited loan guarantee agreement based on invested
218funds may be entered into after December 1, 2006.
219     (2)  The State Fire Marshal may enter into limited loan
220guarantee agreements with one or more financial institutions
221qualified as public depositories in this state. Such agreements
222shall provide a limited guarantee by the State of Florida
223covering no more than 50 percent of the principal sum loaned by
224such financial institution to an eligible nursing home, as
225defined in subsection (10), for the sole purpose of the initial
226installation at such nursing home of a fire protection system,
227as defined in s. 633.021(8), approved by the State Fire Marshal
228as being in compliance with the provisions of s. 633.022 and
229rules adopted thereunder.
230     (3)  The State Fire Marshal shall solicit requests for
231proposals from qualified financial institutions willing to fund
232loans to eligible nursing homes for the installation of fire
233protection systems approved by the State Fire Marshal under the
234State Fire Marshal Nursing Home Fire Protection Loan Guarantee
235Program. Each request for proposal shall specify the terms and
236conditions under which the responding institution is prepared to
237make loans under the program, including, but not limited to,
238applicable interest rates, repayment terms, credit policies,
239loan fees, and proposed security interests to be executed by the
240borrower. After evaluation of all requests for proposals, the
241State Fire Marshal shall select one or more responding
242institutions as designated lenders under the program.
243     (4)  The State Fire Marshal shall prescribe by rule an
244application form for participation in the State Fire Marshal
245Nursing Home Fire Protection Loan Guarantee Program to be
246submitted by each eligible nursing home that desires to install
247a fire protection system funded by a loan from a designated
248lender under the program. Nothing in this section shall be
249deemed to require an eligible nursing home to do business with a
250designated lender. At a minimum, the application shall require
251each applicant to provide the following information:
252     (a)  The name and address of the eligible nursing home.
253     (b)  The name and address of the owner of the nursing home
254or, if the owner is a partnership, the name and address of the
255general partner.
256     (c)  The lessee of the nursing home premises, if any.
257     (d)  A complete description of the structure or structures
258where the fire protection system is to be installed, including
259age, physical dimensions, overall square footage, a real extent
260of proposed coverage areas, and other relevant information
261concerning the premises.
262     (e)  Bed capacity of the nursing home, including beds
263eligible for Medicare or Medicaid reimbursement.
264     (f)  A statement regarding the availability to the
265applicant of third-party reimbursement for installation of the
266fire protection system.
267     (g)  The location of closest water mains and fire hydrants,
268if any.
269     (h)  Complete sealed drawings showing the fire protection
270system to be installed.
271     (i)  Cost documentation, with a separate breakdown of cost
272for labor and materials.
273     (j)  Verification of the application by the applicant.
274     (5)  The State Fire Marshal shall evaluate each application
275submitted under this section to determine whether the proposed
276fire protection system is feasible for installation as proposed
277and complies with all applicable firesafety code provisions. An
278application may not be approved without a positive determination
279by the State Fire Marshal under this subsection. If the State
280Fire Marshal is able to determine that the proposed fire
281protection system is feasible and complies with applicable
282firesafety codes, the application shall be approved for
283submission to one or more lenders for funding. If the
284application is insufficient, the State Fire Marshal shall notify
285the applicant in writing and identify areas of deficiency that
286must be corrected in order for the application to be approved.
287     (6)  As soon as practicable after approval, each approved
288application shall be submitted by the State Fire Marshal to one
289or more designated lenders for funding. Upon request of a
290designated lender, an approved applicant shall provide the
291lender with documentation of its credit history and financial
292status. If, after review of the applicant's documentation, a
293lender refuses to fund the application, the lender shall
294promptly notify the applicant and the State Fire Marshal in
295writing of any reasons for its action. If the lender agrees to
296fund the application, the lender shall notify the applicant and
297the State Fire Marshal and schedule a closing date for the loan.
298     (7)  At closing, the applicant shall execute appropriate
299documents necessary to provide the lender and the State Fire
300Marshal with a security interest in the property where the fire
301protection system is to be installed. The State Fire Marshal
302shall then execute a limited loan guarantee in favor of the
303lender guaranteeing no more than 50 percent of the face value of
304the loan.
305     (8)  A designated lender covered by a limited state
306guarantee for a loan under this section is not entitled to file
307a claim for loss pursuant to the guarantee unless all reasonable
308and normal remedies available and customary for lending
309institutions for resolving problems of loan repayments are
310exhausted. If the lender has received collateral security in
311connection with the loan, the lender must first exhaust all
312available remedies against the collateral security.
313     (9)  No application for participation in the State Fire
314Marshal Nursing Home Fire Protection Loan Guarantee Program may
315be accepted by the State Fire Marshal after June 30, 2006.
316     (10)  For purposes of this section, "eligible nursing home"
317means a nursing home facility that provides nursing services as
318defined in chapter 464, is licensed under part II of chapter
319400, and is certified by the Agency for Health Care
320Administration to lack an installed fire protection system as
321defined in s. 633.021(8).
322     (11)  The State Fire Marshal may adopt any rules necessary
323to implement the provisions of this section.
324     Section 5.  This act shall take effect July 1, 2005.


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