HB 1267CS

CHAMBER ACTION



1The Elder & Long-Term Care Committee recommends the following:
2
3     Council/Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to nursing homes; amending s. 400.023,
7F.S.; providing legislative findings; limiting the
8liability of community-based nursing home facilities and
9their subcontractors; providing application; specifying
10nonapplication of limitations of liability to certain
11persons under certain circumstances; defining the terms
12"community-based nursing home facility" and
13"subcontractor"; providing requirements to qualify as a
14community-based nursing home facility; requiring the
15Agency for Heath Care Administration to verify compliance
16with certain required facility criteria; amending s.
17633.022, F.S.; requiring nursing homes to be protected by
18certain automatic sprinkler systems; providing a schedule;
19authorizing the Division of State Fire Marshal to grant
20certain time extensions; authorizing the division to adopt
21certain rules; providing for administrative sanctions
22under certain circumstances; requiring adjustments to
23certain provider Medicaid rates for reimbursement for
24Medicaid's portion of costs to meet certain requirements;
25requiring funding for such adjustments to come from
26existing nursing home appropriations; creating s. 633.024,
27F.S.; providing legislative findings and intent; creating
28s. 633.0245, F.S.; authorizing the State Fire Marshal to
29enter into an investment agreement with public
30depositories to establish the State Fire Marshal Nursing
31Home Fire Protection Loan Guarantee Program as a limited
32loan guarantee program to retrofit nursing homes with fire
33protection systems; providing investment and agreement
34limitations; requiring the State Fire Marshal to solicit
35requests for proposals; providing for application
36requirements and procedures; providing for review and
37approval by the State Fire Marshal; providing application
38requirements and procedures for program loans by public
39depositories; providing deadlines and limitations;
40limiting certain claims for loss under certain
41circumstances; providing a definition; authorizing the
42State Fire Marshal to adopt rules; providing an effective
43date.
44
45Be It Enacted by the Legislature of the State of Florida:
46
47     Section 1.  Subsection (8) is added to section 400.023,
48Florida Statutes, to read:
49     400.023  Civil enforcement.--
50     (8)(a)  The Legislature makes the following findings:
51     1.  Liability insurance premiums for community-based
52nursing home facilities have increased dramatically in recent
53years, resulting in increased nursing home care costs for most
54patients and functional unavailability of liability insurance
55for most community-based nursing home facilities.
56     2.  The primary cause of increased liability insurance
57premiums has been the substantial increase in loss payments to
58claimants caused by tremendous increases in the amounts of paid
59claims.
60     3.  The high cost of liability claims for community-based
61nursing home facilities in this state can be substantially
62alleviated by imposing reasonable limitations on damages, while
63preserving the right of either party to have its case heard by a
64jury.
65     4.  Nonprofit nursing facilities consistently rank higher
66than for-profit nursing facilities according to quality of care
67standards established by the Agency for Health Care
68Administration, and the vast majority of Gold Seal facilities
69are nonprofit.
70     5.  Excessive awards of noneconomic damages threaten the
71ability of community-based nursing home facilities to continue
72to provide appropriate care for patients. A reasonable
73limitation on noneconomic damages will reduce the high cost of
74claims without jeopardizing the right of each party to be heard
75by a jury.
76     (b)  In any claim against a community-based nursing home
77facility or a subcontractor of the facility brought pursuant to
78this part alleging a violation of a resident's rights or
79negligence causing injury to or the death of a resident,
80noneconomic damages, as defined in s. 766.202(8), shall be
81limited to $200,000 per claimant regardless of the number of
82defendants or individual claimants. A claims bill may be brought
83on behalf of a claimant pursuant to s. 768.28 for any amount
84exceeding the limits specified in this subsection. Any offset of
85collateral source payments made as of the date of the settlement
86or judgment shall be in accordance with s. 768.76. A community-
87based facility shall not be liable in tort for the acts or
88omissions of its subcontractors or the officers, agents, or
89employees of its subcontractors. The liability of a facility and
90subcontractors pursuant to this subsection shall be exclusive
91and in place of all other liability of such facility and
92subcontractors, except as otherwise provided in this section and
93in s. 400.0237. The same limitation on liability enjoyed by such
94facilities and subcontractors shall extend as well to each
95employee of the facility and the subcontractors when such
96employee is acting in furtherance of the facility's business,
97including the transportation of clients served in privately
98owned vehicles. The limitation on liability shall not be
99applicable to a facility, a subcontractor, or an employee of
100either in the event of intentional misconduct or gross
101negligence as defined in s. 400.0237, nor shall the limitation
102on liability be applicable to employees of the same facility or
103subcontractor when each is operating in the furtherance of the
104facility's business but the employees are assigned primarily to
105unrelated works within private or public employment. The same
106limitation on liability enjoyed by a facility and subcontractor
107shall also apply to any sole proprietor, partner, corporate
108officer, director, supervisor, or other person who in the course
109and scope of his or her duties acts in a managerial or
110policymaking capacity and the conduct that caused the alleged
111injury arose within the course and scope of those managerial or
112policymaking duties.
113     (c)  For the purposes of this subsection, "community-based
114nursing home facility" means a nursing home facility that meets
115all of the following requirements:
116     1.  The number of nursing home beds in the facility may not
117exceed 240.
118     2.  The facility must obtain 400 hours of assistance from
119onsite volunteers each month. The facility must require that
120volunteers sign in and out with staff of the facility upon
121entering or leaving the facility. The facility must maintain
122records of volunteers' names, addresses, and the number of hours
123volunteered in a manner that will enable the agency to verify
124compliance with this subsection.
125     3.  The facility must maintain general and professional
126liability insurance coverage that is in force at all times with
127limits that are not less than $250,000 per claim and not less
128than $500,000 in annual aggregate. No more than 10 percent of
129the available insurance limits required by this section shall be
130used to fund defense attorney fees and costs.
131     4.  The facility is a not-for-profit corporation.
132     (d)  The agency shall verify compliance with paragraph (c)
133at the time of each inspection of a facility that claims to be
134community-based as defined in this subsection.
135     (e)  For purposes of this subsection, "subcontractor" means
136those subcontractors performing direct care services.
137     Section 2.  Subsection (4) is added to section 633.022,
138Florida Statutes, to read:
139     633.022  Uniform firesafety standards.--The Legislature
140hereby determines that to protect the public health, safety, and
141welfare it is necessary to provide for firesafety standards
142governing the construction and utilization of certain buildings
143and structures. The Legislature further determines that certain
144buildings or structures, due to their specialized use or to the
145special characteristics of the person utilizing or occupying
146these buildings or structures, should be subject to firesafety
147standards reflecting these special needs as may be appropriate.
148     (4)(a)  Notwithstanding any provision of law to the
149contrary, each nursing home licensed under part II of chapter
150400 shall be protected by an approved, supervised automatic
151sprinkler system in accordance with section 9 of National Fire
152Protection Association, Inc., Life Safety Code, in accordance
153with the following schedule:
154     1.  Each hazardous area of each nursing home shall be
155protected by an approved, supervised automatic sprinkler system
156by no later than December 31, 2008.
157     2.  Each entire nursing home shall be protected by an
158approved, supervised automatic sprinkler system by no later than
159December 31, 2010.
160     (b)  The division may grant up to two 1-year extensions of
161the time limits for compliance in subparagraph (a)2. if the
162division determines that the nursing home has been prevented
163from complying for reasons beyond its control.
164     (c)  The division is authorized to adopt any rule necessary
165for the implementation and enforcement of this subsection. The
166division shall enforce this subsection in accordance with the
167provisions of this chapter, and any nursing home licensed under
168part II of chapter 400 that is in violation of this subsection
169may be subject to administrative sanctions by the division
170pursuant to this chapter.
171     (d)  Adjustments shall be made to the provider Medicaid
172rate to allow reimbursement over a 5-year period for Medicaid's
173portion of the costs incurred to meet the requirements of this
174subsection. Funding for this adjustment shall come from existing
175nursing home appropriations.
176     Section 3.  Section 633.024, Florida Statutes, is created
177to read:
178     633.024  Legislative findings and intent; ensuring
179effective fire protection of vulnerable nursing home residents
180essential; retrofit of existing nursing homes expedited by
181limited state loan guarantee; funding through Insurance
182Regulatory Trust Fund.--
183     (1)  It is the intent of the Legislature to promote the
184essential public purpose of ensuring effective fire protection
185for the safety and welfare of nursing home residents of this
186state who, because of their inability to protect themselves, are
187most vulnerable to catastrophic injury or death in the event of
188a fire. The Legislature finds that this purpose is served by
189requiring the installation of appropriate fire protection
190systems in all nursing home facilities in this state that do not
191currently have fire protection systems in operation for the
192protection of their residents. The Legislature finds that the
193high capital cost of retrofitting appropriate fire protection
194systems at nursing home facilities not originally designed with
195fire protection systems has discouraged the owners and operators
196of such facilities from doing so. The Legislature therefore
197finds that state action to provide a limited state guarantee of
198loans covering these capital costs will expedite the immediate
199installation of fire protection systems at facilities that lack
200such systems and thereby ensure effective protection for those
201nursing home populations that are now most vulnerable to the
202catastrophic effects of fire.
203     (2)  Because the Insurance Regulatory Trust Fund is funded
204by the proceeds of fire insurance premiums written in this
205state, the Legislature finds that it is in the public interest
206for moneys held in the Insurance Regulatory Trust Fund to be
207used to fund the limited loan guarantee program that mobilizes
208private funding for the retrofitting of fire protection systems
209at unprotected nursing homes located in this state.
210     Section 4.  Section 633.0245, Florida Statutes, is created
211to read:
212     633.0245  State Fire Marshal Nursing Home Fire Protection
213Loan Guarantee Program.--
214     (1)  The State Fire Marshal, with the assistance of the
215Division of Treasury of the Department of Financial Services,
216may enter into an investment agreement concerning the investment
217of certain funds held in the Insurance Regulatory Trust Fund for
218the purpose of establishing a limited loan guarantee program to
219be known as the State Fire Marshal Nursing Home Fire Protection
220Loan Guarantee Program. The investment must be limited as
221follows:
222     (a)  Not more than $4 million of the balance in the
223Insurance Regulatory Trust Fund in any fiscal year may be at
224risk at any time for the purpose of limited loan guarantees.
225     (b)  Such funds at risk at any time may not be used to
226guarantee any limited loan guarantee agreement for a period
227longer than 10 years.
228     (c)  No limited loan guarantee agreement based on invested
229funds may be entered into after December 1, 2006.
230     (2)  The State Fire Marshal may enter into limited loan
231guarantee agreements with one or more financial institutions
232qualified as public depositories in this state. Such agreements
233shall provide a limited guarantee by the State of Florida
234covering no more than 50 percent of the principal sum loaned by
235such financial institution to an eligible nursing home, as
236defined in subsection (10), for the sole purpose of the initial
237installation at such nursing home of a fire protection system,
238as defined in s. 633.021(8), approved by the State Fire Marshal
239as being in compliance with the provisions of s. 633.022 and
240rules adopted thereunder.
241     (3)  The State Fire Marshal shall solicit requests for
242proposals from qualified financial institutions willing to fund
243loans to eligible nursing homes for the installation of fire
244protection systems approved by the State Fire Marshal under the
245State Fire Marshal Nursing Home Fire Protection Loan Guarantee
246Program. Each request for proposal shall specify the terms and
247conditions under which the responding institution is prepared to
248make loans under the program, including, but not limited to,
249applicable interest rates, repayment terms, credit policies,
250loan fees, and proposed security interests to be executed by the
251borrower. After evaluation of all requests for proposals, the
252State Fire Marshal shall select one or more responding
253institutions as designated lenders under the program.
254     (4)  The State Fire Marshal shall prescribe by rule an
255application form for participation in the State Fire Marshal
256Nursing Home Fire Protection Loan Guarantee Program to be
257submitted by each eligible nursing home that desires to install
258a fire protection system funded by a loan from a designated
259lender under the program. Nothing in this section shall be
260deemed to require an eligible nursing home to do business with a
261designated lender. At a minimum, the application shall require
262each applicant to provide the following information:
263     (a)  The name and address of the eligible nursing home.
264     (b)  The name and address of the owner of the nursing home
265or, if the owner is a partnership, the name and address of the
266general partner.
267     (c)  The lessee of the nursing home premises, if any.
268     (d)  A complete description of the structure or structures
269where the fire protection system is to be installed, including
270age, physical dimensions, overall square footage, a real extent
271of proposed coverage areas, and other relevant information
272concerning the premises.
273     (e)  Bed capacity of the nursing home, including beds
274eligible for Medicare or Medicaid reimbursement.
275     (f)  A statement regarding the availability to the
276applicant of third-party reimbursement for installation of the
277fire protection system.
278     (g)  The location of closest water mains and fire hydrants,
279if any.
280     (h)  Complete sealed drawings showing the fire protection
281system to be installed.
282     (i)  Cost documentation, with a separate breakdown of cost
283for labor and materials.
284     (j)  Verification of the application by the applicant.
285     (5)  The State Fire Marshal shall evaluate each application
286submitted under this section to determine whether the proposed
287fire protection system is feasible for installation as proposed
288and complies with all applicable firesafety code provisions. An
289application may not be approved without a positive determination
290by the State Fire Marshal under this subsection. If the State
291Fire Marshal is able to determine that the proposed fire
292protection system is feasible and complies with applicable
293firesafety codes, the application shall be approved for
294submission to one or more lenders for funding. If the
295application is insufficient, the State Fire Marshal shall notify
296the applicant in writing and identify areas of deficiency that
297must be corrected in order for the application to be approved.
298     (6)  As soon as practicable after approval, each approved
299application shall be submitted by the State Fire Marshal to one
300or more designated lenders for funding. Upon request of a
301designated lender, an approved applicant shall provide the
302lender with documentation of its credit history and financial
303status. If, after review of the applicant's documentation, a
304lender refuses to fund the application, the lender shall
305promptly notify the applicant and the State Fire Marshal in
306writing of any reasons for its action. If the lender agrees to
307fund the application, the lender shall notify the applicant and
308the State Fire Marshal and schedule a closing date for the loan.
309     (7)  At closing, the applicant shall execute appropriate
310documents necessary to provide the lender and the State Fire
311Marshal with a security interest in the property where the fire
312protection system is to be installed. The State Fire Marshal
313shall then execute a limited loan guarantee in favor of the
314lender guaranteeing no more than 50 percent of the face value of
315the loan.
316     (8)  A designated lender covered by a limited state
317guarantee for a loan under this section is not entitled to file
318a claim for loss pursuant to the guarantee unless all reasonable
319and normal remedies available and customary for lending
320institutions for resolving problems of loan repayments are
321exhausted. If the lender has received collateral security in
322connection with the loan, the lender must first exhaust all
323available remedies against the collateral security.
324     (9)  No application for participation in the State Fire
325Marshal Nursing Home Fire Protection Loan Guarantee Program may
326be accepted by the State Fire Marshal after June 30, 2006.
327     (10)  For purposes of this section, "eligible nursing home"
328means a nursing home facility that provides nursing services as
329defined in chapter 464, is licensed under part II of chapter
330400, and is certified by the Agency for Health Care
331Administration to lack an installed fire protection system as
332defined in s. 633.021(8).
333     (11)  The State Fire Marshal may adopt any rules necessary
334to implement the provisions of this section.
335     Section 5.  This act shall take effect July 1, 2005.


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