HB 1489

1	A bill to be entitled
2	An act relating to nursing homes; creating s. 400.0115,
3	F.S.; providing legislative findings and intent; providing
4	components of a plan for resolution of nursing home
5	liability claims; amending s. 400.023, F.S.; providing
6	that a licensee is liable for certain violations or
7	negligence by a licensed nurse practicing under the
8	direction of the licensee; requiring a resident or the
9	resident's legal representative to include a certificate
10	of compliance when a complaint alleging a violation of a
11	resident's rights is filed with the clerk of court;
12	amending s. 400.0233, F.S.; requiring that the presuit
13	notice of a claim against a nursing home facility be given
14	to each prospective defendant; requiring that certain
15	specified information be included with the notice;
16	providing that a defendant may request voluntary binding
17	arbitration; authorizing the parties to toll designated
18	time periods in order to mediate issues of liability and
19	damages; creating s. 400.02342, F.S.; providing that any
20	party may elect to participate in voluntary binding
21	arbitration; providing procedures to initiate and conduct
22	a voluntary binding arbitration; requiring that a claimant
23	agree to a damage award; providing exceptions and
24	limitations; authorizing the Division of Administrative
25	Hearings to adopt rules; authorizing the division to levy
26	specified sanctions; authorizing the division to charge a
27	party requesting binding arbitration an administrative
28	fee; creating s. 400.02343, F.S.; requiring multiple
29	defendants to a binding arbitration proceeding to
30	apportion a damage award through a second arbitration
31	proceeding; providing arbitration procedures for
32	apportioning damage awards; providing that a participant
33	has a cause of action for contribution from other
34	defendants; creating s. 400.02344, F.S.; providing
35	consequences for a claimant or defendant that fails to
36	offer or rejects an offer to participate in binding
37	arbitration; prescribing limitations if a party wishes to
38	proceed to trial; creating s. 400.02345, F.S.; providing
39	procedures for determining if a specific claim is subject
40	to binding arbitration; creating s. 400.02347, F.S.;
41	requiring a defendant to pay a damage award within a
42	specified time period; creating s. 400.02348, F.S.;
43	providing for an appeal of an arbitration or apportionment
44	award; providing that an appeal does not stay an
45	arbitration or apportionment award; permitting a party to
46	an arbitration or apportionment proceeding to enforce an
47	arbitration award or an apportionment of financial
48	responsibility; providing enforcement procedures;
49	providing exceptions; creating s. 400.024, F.S.;
50	establishing a pretrial nursing home services review
51	panel; providing for membership and duties; authorizing
52	the discovery of relevant documents; authorizing the
53	obtaining of unsworn statements; requiring the panel to
54	submit a written opinion; providing for dissolution of the
55	panel and for the claimant to file suit or request
56	arbitration, under certain circumstances; limiting
57	information that is discoverable or admissible in certain
58	civil actions; prohibiting panel members from testifying,
59	under certain circumstances; authorizing the Division of
60	Administrative Hearings to adopt rules; providing for
61	fees; amending s. 400.141, F.S.; requiring a nursing home
62	facility to maintain general and professional liability
63	insurance with specified insurance carriers; providing
64	alternative methods to establish financial responsibility
65	for claims filed against the nursing home; directing that
66	the amount of financial responsibility be increased by the
67	annual rate of inflation; providing exceptions; amending
68	s. 400.151, F.S.; providing criteria for a resident's
69	contract which include arbitration or dispute-resolution
70	provisions; requiring prominent notice of arbitration
71	provisions; requiring notice of which claims are subject
72	to arbitration; amending s. 409.907, F.S.; prohibiting the
73	Agency for Health Care Administration from renewing a
74	Medicaid provider agreement with a chronically poor-
75	performing nursing home facility after a specified date;
76	amending s. 409.908, F.S.; deleting obsolete provisions;
77	requiring the agency to recognize increases in the costs
78	of professional liability insurance by providing a pass-
79	through of professional liability insurance in a specified
80	amount; authorizing the agency to impose an assessment fee
81	for quality assurance; reenacting s. 430.80(3)(h), F.S.,
82	relating to a teaching nursing home pilot project, to
83	incorporate the amendment to s. 400.141, F.S., in a
84	reference thereto; requiring that arbitration limits be
85	adjusted annually for inflation; providing legislative
86	intent that the Agency for Health Care Administration not
87	renew a Medicaid provider agreement with a nursing home
88	facility that has a pattern of harming its residents;
89	directing the agency to consult with certain specified
90	private organizations to identify and improve poor-
91	performing nursing homes; requiring the agency to prepare
92	a report of the Medicaid "Up-or-Out" Quality of Care
93	Contract Management Program; providing legislative intent
94	that a study be conducted by the Institute on Aging at the
95	University of South Florida of all federal and state
96	enforcement sanctions and remedies available to the agency
97	to use with nursing home facilities; providing the
98	subjects to be studied; requiring that a report of the
99	findings of the study be submitted by a specified date;
100	requiring each nursing home facility to pay an annual
101	assessment on each licensed bed after a specified date;
102	providing for the use of the funds collected; providing a
103	method by which the assessment will be determined;
104	providing for nonseverability; providing effective dates.
105
106	Be It Enacted by the Legislature of the State of Florida:
107
108	Section 1.  Section 400.0115, Florida Statutes, is created
109	to read:
110	400.0115  Legislative findings and intent.--
111	(1)  The Legislature makes the following findings:
112	(a)  Liability insurance premiums for nursing homes have
113	increased dramatically in recent years, resulting in increased
114	operating costs and functional unavailability of liability
115	insurance for most nursing home facilities.
116	(b)  The primary cause of the functional unavailability of
117	meaningful liability insurance is the pressure of loss payments
118	and the frequency of paid claims despite demonstrated,
119	consistent increases in quality of care provided to nursing home
120	patients and increased staffing at nursing home facilities.
121	(c)  An effective, reliable business model no longer exists
122	under which a nursing home that provides quality care to its
123	residents is able to obtain functional insurance. This situation
124	is contrary to the sound public policy of the state and
125	jeopardizes the state's continued commitment to ensuring that
126	quality nursing home services are available to the state's
127	elderly population.
128	(d)  The functional lack of insurance has created a crisis
129	that, if not addressed, will result in the inability of nursing
130	home facilities to continue to increase the quality of care
131	provided to residents.
132	(e)  The lack of functional insurance severely limits the
133	ability of facilities to pay legitimate claims and thus limits
134	the ability of residents to obtain appropriate access to courts.
135	(f)  The high cost of nursing home liability claims in the
136	state can be substantially alleviated by requiring that the
137	parties participate in a system that encourages the early
138	determination of the merit of claims by independent review of
139	claims by a qualified, impartial panel, by promoting the
140	arbitration of claims, and by imposing a reasonable limitation
141	on damages while preserving the right of either party to have a
142	claim heard by a jury.
143	(2)  It is the intent of the Legislature to respond to the
144	crisis facing nursing home residents and the facilities
145	themselves by providing a plan for prompt resolution of claims.
146	Such plan shall consist of three parts: presuit investigation, a
147	nursing home services review panel, and arbitration. Presuit
148	investigation shall be mandatory and shall apply to all nursing
149	home liability claims. Nursing home services review and
150	arbitration shall be voluntary except as specified.
151	(a)  A presuit investigation shall include verifiable
152	requirements that a reasonable investigation precede both
153	nursing home liability claims and defenses in order to deter
154	frivolous claims and defenses.
155	(b)  The nursing home services review panel shall provide a
156	prompt, unbiased, professional review as to whether there has
157	been negligence or a breach of an applicable standard of care as
158	otherwise provided in this part.
159	(c)  Arbitration shall provide:
160	1.  Substantial incentives for both claimants and
161	defendants to submit their cases to binding arbitration, thus
162	reducing attorney's fees, litigation costs, and delay.
163	2.  A conditional limitation on noneconomic damages if the
164	defendant elects not to contest liability.
165	3.  Limitations on the noneconomic damage components of
166	large awards in order to increase the predictability of outcomes
167	of claims in order for insurers to anticipate losses and to
168	facilitate early resolution of claims.
169	Section 2.  Subsections (4) and (6) of section 400.023,
170	Florida Statutes, are amended to read:
171	400.023  Civil enforcement.--
172	(4)  A licensee is liable for In any claim for resident's
173	rights violation or negligence by a nurse licensed under part I
174	of chapter 464 who is practicing under the direction of the
175	licensee., Such nurse shall have the duty to exercise care
176	consistent with the prevailing professional standard of care for
177	a nurse. The prevailing professional standard of care for a
178	nurse shall be that level of care, skill, and treatment which,
179	in light of all relevant surrounding circumstances, is
180	recognized as acceptable and appropriate by reasonably prudent
181	similar nurses.
182	(6)  The resident or the resident's legal representative
183	shall serve a copy of any complaint alleging in whole or in part
184	a violation of any rights specified in this part to the Agency
185	for Health Care Administration at the time of filing the initial
186	complaint with the clerk of the court for the county in which
187	the action is pursued. The initial complaint must contain a
188	certificate of counsel certifying compliance with this
189	subsection. The requirement of providing a copy of the complaint
190	to the agency and certifying compliance with this subsection
191	does not impair the resident's legal rights or ability to seek
192	relief for his or her claim.
193	Section 3.  Section 400.0233, Florida Statutes, is amended
194	to read:
195	400.0233  Presuit notice; investigation; notification of
196	violation of resident's rights or alleged negligence; claims
197	evaluation procedure; informal discovery; review; settlement
198	offer; mediation.--
199	(1)  As used in this section, the term:
200	(a)  "Claim for resident's rights violation or negligence"
201	means a negligence claim alleging injury to or the death of a
202	resident arising out of an asserted violations violation of the
203	rights of a resident under s. 400.022 or an asserted deviations
204	deviation from the applicable standard of care. At the time of
205	the filing of the notice of claim, all known incidents alleged
206	to have caused injury or damages to the resident shall be
207	included. This paragraph shall not abrogate the rights of
208	parties to amend claims subject to the Florida Rules of Civil
209	Procedure.
210	(b)  "Claimant" means a person, including a decedent's
211	estate, who files a claim for a resident's rights violation or
212	negligence under this chapter. All persons claiming to have
213	sustained damages as a result of the bodily injury or death of a
214	resident are considered a single claimant with the exception of
215	minor children.
216	(c)  "Collateral sources" means any payments made to the
217	claimant, or made on his or her behalf, by or pursuant to the
218	United States Social Security Act; any federal, state, or local
219	income disability act; or any other public program that provides
220	coverage of medical expenses, disability payments, or other
221	similar benefits, except as prohibited by federal law.
222	(d)  "Economic damages" means financial losses that would
223	not have occurred but for the injury giving rise to that cause
224	of action, including, but not limited to, past and future
225	medical expenses and loss of earning capacity to the extent the
226	claimant is entitled to recover such damages under general law,
227	including the Wrongful Death Act.
228	(e)  "Incident" means any event, action, or conduct alleged
229	to have caused injury or damages to the resident.
230	(f)(b)  "Insurer" means any self-insurer authorized under
231	s. 627.357, liability insurance carrier, joint underwriting
232	association, or uninsured prospective defendant.
233	(g)  "Financial responsibility" means demonstrating the
234	minimum financial responsibility requirements as provided in s.
235	400.141(20).
236	(h)  "Noneconomic damages" means nonfinancial losses that
237	would not have occurred but for the injury giving rise to the
238	cause of action, including pain and suffering, inconvenience,
239	physical impairment, mental anguish, disfigurement, loss of
240	capacity for enjoyment of life, and other nonfinancial losses to
241	the extent the claimant is entitled to recover those damages
242	under general law, including noneconomic damages under the
243	Wrongful Death Act.
244	(2)  A claimant's initial notice Prior to filing a claim
245	for a violation of a resident's rights or a claim for
246	negligence, a claimant alleging injury to or the death of a
247	resident shall be provided to notify each prospective defendant
248	by certified mail, return receipt requested, asserting a of an
249	asserted violation of a resident's rights provided in s. 400.022
250	or deviation from the standard of care. Such notification shall
251	be made prior to filing a claim and shall include an
252	identification of the rights the prospective defendant has
253	violated and the negligence alleged to have caused the incident
254	or incidents and a brief description of the injuries sustained
255	by the resident which are reasonably identifiable at the time of
256	notice. The notice shall contain a certificate of counsel that
257	counsel's reasonable investigation gave rise to a good faith
258	belief that grounds exist for an action against each prospective
259	defendant. The notice of intent must contain a medical
260	information release that allows a defendant or his or her legal
261	representative to obtain all medical records potentially
262	relevant to the claimant's alleged injury, including all records
263	of nonparty care, death certificates, autopsy records, and other
264	records related to the claim. If the initial notice of claim
265	does not contain a medical release as provided in this
266	subsection, the time period for the defendant to provide a
267	written response pursuant to paragraph (3)(b) is tolled until
268	such release is provided.
269	(3)(a)  No suit may be filed for a period of 75 days after
270	notice is mailed to any prospective defendant. During the 75-day
271	period, the prospective defendants or their insurers shall
272	conduct an evaluation of the claim to determine the liability of
273	each defendant and to evaluate the damages of the claimants.
274	Each defendant or insurer of the defendant shall have a
275	procedure for the prompt evaluation of claims during the 75-day
276	period. The procedure shall include one or more of the
277	following:
278	1.  Internal review by a duly qualified facility risk
279	manager or claims adjuster;
280	2.  Internal review by counsel for each prospective
281	defendant;
282	3.  A quality assurance committee authorized under any
283	applicable state or federal statutes or regulations; or
284	4.  Any other similar procedure that fairly and promptly
285	evaluates the claims.
286
287	Each defendant or insurer of the defendant shall evaluate the
288	claim in good faith.
289	(b)  At or before the end of the 75 days, the defendant or
290	insurer of the defendant shall provide the claimant with a
291	written response:
292	1.  Rejecting the claim; or
293	2.  Making a settlement offer;.
294	3.  Requesting a nursing home services review panel as
295	provided in s. 400.024. A defendant or insurer that requests a
296	review panel is not precluded from subsequently requesting
297	arbitration pursuant to s. 400.024(11); or
298	4.  Requesting voluntary binding arbitration pursuant to s.
299	400.02342.
300	(c)  The response shall be delivered to the claimant if not
301	represented by counsel or to the claimant's attorney, by
302	certified mail, return receipt requested. Failure of the
303	prospective defendant or insurer of the defendant to reply to
304	the notice within 75 days after receipt shall be deemed a
305	rejection of the claim for purposes of this section.
306	(4)  The notification of a violation of a resident's rights
307	or alleged negligence shall be served within the applicable
308	statute of limitations period; however, during the 75-day
309	period, the statute of limitations is tolled as to all
310	prospective defendants. Upon stipulation by the parties, the 75-
311	day period may be extended and the statute of limitations is
312	tolled during any such extension. Upon receiving written notice
313	by certified mail, return receipt requested, of termination of
314	negotiations in an extended period, the claimant shall have 60
315	days or the remainder of the period of the statute of
316	limitations, whichever is greater, within which to file suit.
317	(5)  No statement, discussion, written document, report, or
318	other work product generated by presuit claims evaluation
319	procedures under this section is discoverable or admissible in
320	any civil action for any purpose by the opposing party. All
321	participants, including, but not limited to, physicians,
322	investigators, witnesses, and employees or associates of the
323	defendant, are immune from civil liability arising from
324	participation in the presuit claims evaluation procedure. Any
325	licensed physician or registered nurse may be retained by either
326	party to provide an opinion regarding the reasonable basis of
327	the claim. The presuit opinions of the expert are not
328	discoverable or admissible in any civil action for any purpose
329	by the opposing party.
330	(6)  Upon receipt by a prospective defendant of a notice of
331	claim, the parties shall make discoverable information available
332	without formal discovery as provided in subsection (7).
333	(7)  Informal discovery may be used by a party to obtain
334	unsworn statements and the production of documents or things as
335	follows:
336	(a)  Unsworn statements.--Any party may require other
337	parties to appear for the taking of an unsworn statement. Such
338	statements may be used only for the purpose of claims evaluation
339	and are not discoverable or admissible in any civil action for
340	any purpose by any party. A party seeking to take the unsworn
341	statement of any party must give reasonable notice in writing to
342	all parties. The notice must state the time and place for taking
343	the statement and the name and address of the party to be
344	examined. Unless otherwise impractical, the examination of any
345	party must be done at the same time by all other parties. Any
346	party may be represented by counsel at the taking of an unsworn
347	statement. An unsworn statement may be recorded electronically,
348	stenographically, or on videotape. The taking of unsworn
349	statements is subject to the provisions of the Florida Rules of
350	Civil Procedure and may be terminated for abuses.
351	(b)  Documents or things.--Any party may request discovery
352	of relevant documents or things. The documents or things must be
353	produced, at the expense of the requesting party, within 20 days
354	after the date of receipt of the request. A party is required to
355	produce relevant and discoverable documents or things within
356	that party's possession or control, if in good faith it can
357	reasonably be done within the timeframe of the claims evaluation
358	process.
359	(8)  Each request for and notice concerning informal
360	discovery pursuant to this section must be in writing, and a
361	copy thereof must be sent to all parties. Such a request or
362	notice must bear a certificate of service identifying the name
363	and address of the person to whom the request or notice is
364	served, the date of the request or notice, and the manner of
365	service thereof.
366	(9)  In the event of a dispute regarding the right to or
367	access to discovery, either party may petition a court of
368	competent jurisdiction to enter an order permitting such
369	discovery. If the court or administrative law judge determines
370	that discoverable information was not available before the
371	defendant was required to determine whether to request voluntary
372	binding arbitration, the court or administrative law judge shall
373	allow the defendant to either request binding arbitration or
374	withdraw the offer to admit liability within 15 days after
375	receipt of the ordered production.
376	(10)(9)  If a prospective defendant makes a written
377	settlement offer, the claimant shall have 15 days from the date
378	of receipt to accept the offer. An offer shall be deemed
379	rejected unless accepted by delivery of a written notice of
380	acceptance.
381	(11)(10)  To the extent not inconsistent with this part,
382	the provisions of the Florida Mediation Code, Florida Rules of
383	Civil Procedure, shall be applicable to such proceedings.
384	(12)(11)  Within 30 days After the claimant's receipt of
385	the defendant's response to the claim, the parties or their
386	designated representatives may stipulate to toll the statute of
387	limitations for 30 days in order to shall meet in mediation to
388	discuss the issues of liability and damages in accordance with
389	the mediation rules of practice and procedures adopted by the
390	Supreme Court. Upon stipulation of the parties, this 30-day
391	period may be extended and the statute of limitations is tolled
392	during the mediation and any such extension. At the conclusion
393	of mediation, the claimant shall have 60 days or the remainder
394	of the period of the statute of limitations, whichever is
395	greater, within which to file suit.
396	Section 4.  Section 400.02342, Florida Statutes, is created
397	to read:
398	400.02342  Voluntary binding arbitration of claims for
399	violation of residents' rights or negligence.--
400	(1)  Voluntary binding arbitration under this part does not
401	apply to causes of action involving the state or its agencies or
402	subdivisions, or the officers, employees, or agents thereof
403	under s. 768.28.
404	(2)  Any party may elect, with respect only to claims
405	arising out of the rendering of or the failure to render nursing
406	home services, to voluntarily submit the issue of damages to
407	binding arbitration and have damages determined by the
408	arbitration panel. For purposes of arbitration under this part,
409	"nursing home services" means those services that are rendered
410	to a resident as a result of the resident's needs or condition
411	and that would be customarily within the scope of care provided
412	by the nursing facility, including:
413	(a)  Skin care.
414	(b)  Mobility and walking assistance.
415	(c)  Nourishment.
416	(d)  Hydration.
417	(e)  Prevention of elopement.
418	(f)  Therapy.
419	(g)  Nursing services.
420	(h)  Activities of daily living.
421	(3)  Any party may initiate the process to elect voluntary
422	binding arbitration by serving a request for voluntary binding
423	arbitration of damages as provided in s. 400.0233(3)(b) within
424	60 days after the conclusion of the nursing home services review
425	panel process or the remainder of the period of the statute of
426	limitations, whichever is greater, or within 30 days from the
427	date of filing of an amended complaint containing new claims
428	which are subject to an offer of voluntary binding arbitration
429	under this act. The evidentiary standards for voluntary binding
430	arbitration of claims arising out of the rendering of or the
431	failure to render nursing home services shall be as provided in
432	s. 400.0233(2) and chapter 90.
433	(4)  The opposing party may accept the offer of voluntary
434	binding arbitration no later than 30 days after receiving the
435	other party's request for arbitration. Acceptance within the
436	time period is a binding commitment to comply with the decision
437	of the arbitration panel as to the appropriate level of damages,
438	if any, which may be awarded.
439	(5)  The arbitration panel shall be composed of three
440	arbitrators: one selected by the claimant, one selected by the
441	defendant, and one administrative law judge furnished by the
442	Division of Administrative Hearings who shall serve as the chief
443	arbitrator. If the claim involves multiple claimants or multiple
444	defendants, one arbitrator shall be selected by the side with
445	multiple parties as the choice of those parties. If the multiple
446	parties cannot reach agreement as to their arbitrator, each of
447	the multiple parties shall submit a nominee to the director of
448	the division who shall choose the arbitrator for the side with
449	multiple parties.
450	(6)  The arbitrators shall be independent of all parties,
451	witnesses, and legal counsel; and an officer, director,
452	affiliate, subsidiary, or employee of a party, witness, or legal
453	counsel may not serve as an arbitrator in the proceeding.
454	(7)  The rate of compensation for arbitrators, other than
455	the administrative law judge, shall be set by the Division of
456	Administrative Hearings and may not exceed the ordinary and
457	customary fees paid to court-approved mediators in the circuit
458	in which the claim would be filed.
459	(8)  A party participating in arbitration under this
460	section may not use any other forum against a participating
461	defendant during the course of the arbitration.
462	(9)  A participating claimant agrees that damages shall be
463	awarded in a manner consistent with this part, subject to the
464	following limitations:
465	(a)  The defendant has offered not to contest liability and
466	causation and has agreed to arbitration on the issue of damages
467	as provided in this section.
468	(b)  Net economic damages, if any, are awardable,
469	including, but not limited to, past and future medical and
470	health care expenses, offset by collateral source payments, to
471	the extent the claimant is entitled to recover such damages
472	under general law, including the Wrongful Death Act.
473	(c)  Total noneconomic damages, if any, which may be
474	awarded for the claim arising out of the care and services
475	rendered to a nursing home resident, including any claim
476	available under the Wrongful Death Act, are limited to a maximum
477	of $500,000, regardless of the number of individual claimants or
478	defendants, except that minor children shall each have a
479	separate claim.
480	(d)  Punitive damages may not be awarded.
481	(e)  The defendant is responsible for the payment of
482	interest on all accrued damages with respect to which interest
483	would be awarded at trial.
484	(f)  The party requesting binding arbitration shall pay the
485	fees of the arbitrators and the costs of the Division of
486	Administrative Hearings associated with arbitration as assessed
487	by the division. If the division determines that the plaintiff
488	is indigent and unable to pay, the defendant shall pay the fees
489	and costs assessed by the division, and the defendant shall have
490	a claim for reimbursement against the estate of the plaintiff.
491	(g)  A defendant who agrees to participate in arbitration
492	under this section is jointly and severally liable for all
493	damages assessed under this section.
494	(h)  A defendant's obligation to pay the claimant's damages
495	applies only to arbitration under this part. A defendant's or
496	claimant's offer to arbitrate may not be used in evidence or in
497	argument during any subsequent litigation of the claim following
498	rejection thereof.
499	(i)  The fact of making or rejecting an offer to arbitrate
500	is not admissible as evidence of liability in any collateral or
501	subsequent proceeding on the claim.
502	(j)  An offer by a claimant to arbitrate must be made to
503	each defendant against whom the claimant has made a claim. An
504	offer by a defendant to arbitrate must be made to each claimant.
505	A defendant who rejects a claimant's offer to arbitrate is
506	subject to s. 400.02344(3). A claimant who rejects a defendant's
507	offer to arbitrate is subject to s. 400.02344(4).
508	(k)  The hearing shall be conducted by all the arbitrators,
509	but a majority may determine any question of fact and render a
510	final decision. The chief arbitrator shall decide all
511	evidentiary matters in accordance with the Florida Evidence Code
512	and the Florida Rules of Civil Procedure. The chief arbitrator
513	shall file a copy of the final decision with the Agency for
514	Health Care Administration. If any member of such arbitration
515	panel becomes unavailable, and as a result of the unavailability
516	the panel is unable to reach a final majority decision, the
517	chief arbitrator shall dissolve the arbitration panel, declare
518	misarbitration, and empanel a new arbitration panel under
519	subsection (5).
520	(l)  This part does not preclude a settlement at any time
521	by mutual agreement of the parties.
522	(m)  If an award of damages is made to a claimant by the
523	arbitration panel, the defendant must pay the damages no later
524	than 20 days after entry of the decision of the arbitration
525	panel.
526	(n)  Damages and costs that are not paid within 20 days are
527	subject to postjudgment interest.
528	(o)  This part does not relieve a defendant who voluntarily
529	participates in binding arbitration from the responsibility to
530	timely pay damages and costs awarded by an arbitration panel.
531	(10)  Any issue between the defendant and the defendant's
532	insurer or self-insurer as to who shall control the defense of
533	the claim and any responsibility for payment of an arbitration
534	award shall be determined under existing principles of law,
535	except that the insurer or self-insurer may not offer to
536	arbitrate or accept a claimant's offer to arbitrate without the
537	written consent of the defendant.
538	(11)(a)  The Division of Administrative Hearings may adopt
539	rules to implement this section.
540	(b)  Rules adopted by the division under this section, s.
541	120.54, or s. 120.65 may authorize a reasonable sanction, except
542	contempt, including, but not limited to, any sanction authorized
543	by s. 57.105, against a party for violating a rule of the
544	division or failing to comply with an order issued by an
545	administrative law judge which is not under judicial review.
546	(12)  The Division of Administrative Hearings may charge
547	the party requesting binding arbitration an administrative fee
548	for conducting the arbitration. The administrative fee may not
549	exceed $1,000.
550	(13)  This section does not prevent the parties from using
551	a private arbitrator or arbitrators, in which instance the same
552	procedures and limitations set forth in this section apply.
553	Section 5.  Section 400.02343, Florida Statutes, is created
554	to read:
555	400.02343  Arbitration to apportion financial
556	responsibility among multiple defendants.--
557	(1)  This section applies when more than one defendant
558	participates in voluntary binding arbitration under s.
559	400.02342.
560	(2)(a)  Defendants who agreed to voluntary binding
561	arbitration must submit any dispute amongst themselves
562	concerning apportionment of financial responsibility to a
563	separate binding arbitration proceeding. The defendants must
564	file a notice of the dispute with the administrative law judge
565	of the arbitration panel no later than 20 days after a
566	determination of damages by the arbitration panel.
567	(b)  The apportionment proceeding shall be conducted before
568	a panel of three arbitrators. The panel must include the
569	administrative law judge who presided in the arbitration
570	proceeding and two nursing home arbitrators appointed by the
571	defendants. If the defendants cannot agree on their selections
572	to the apportionment panel, a list of not more than five
573	nominees shall be submitted by each defendant to the director of
574	the Division of Administrative Hearings. The director shall
575	select the other arbitrators but may not select more than one
576	from the list of nominees of any defendant.
577	(3)  The administrative law judge shall serve as the chief
578	arbitrator. The judge shall convene the apportionment panel no
579	later than 65 days after the arbitration panel issues a damage
580	award.
581	(4)  The apportionment panel shall allocate financial
582	responsibility among all defendants named in the notice of an
583	asserted violation of a resident's rights or deviation from the
584	standard of care, regardless of whether the defendant had
585	submitted to arbitration. The defendants in the apportionment
586	proceeding are responsible to one another for their
587	proportionate share of the damage award, attorney's fees, and
588	costs awarded by the arbitration panel. All defendants in the
589	apportionment proceeding are jointly and severally liable for
590	any damages assessed in arbitration. The determination of the
591	percentage of fault of any nonarbitrating defendant is not
592	binding against that defendant but is admissible in any
593	subsequent legal proceeding.
594	(5)  Payment by a defendant of the damages awarded by the
595	arbitration panel in the arbitration proceeding extinguishes the
596	defendant's liability to the claimant for the incident described
597	in the first arbitration and extinguishes the defendant's
598	liability for contribution to any defendant who did not
599	participate in arbitration.
600	(6)  A defendant paying damages assessed under this section
601	or s. 400.02342 has a cause of action for contribution against
602	any arbitrating or nonarbitrating defendant whose negligence
603	contributed to the injury.
604	Section 6.  Section 400.02344, Florida Statutes, is created
605	to read:
606	400.02344  Effects of failure to offer or accept voluntary
607	binding arbitration.--
608	(1)  A proceeding for voluntary binding arbitration is an
609	alternative to a jury trial and shall not supersede the right of
610	any party to a jury trial.
611	(2)  If neither party requests or agrees to voluntary
612	binding arbitration, the claim shall proceed to trial or to any
613	available legal alternative such as offer of and demand for
614	judgment under s. 768.79 or offer of settlement under s. 45.061.
615	(3)  If the defendant rejects a claimant's offer to enter
616	voluntary binding arbitration, the claim shall proceed to trial
617	as otherwise provided in this part without limits on noneconomic
618	damages.
619	(4)  If the claimant rejects a defendant's offer to
620	participate in voluntary binding arbitration:
621	(a)  Damages are limited to net economic damages and
622	noneconomic damages of no more than $500,000 per claim. The
623	total noneconomic damages, if any, which may be awarded for the
624	claim arising out of the care and services rendered to the
625	resident, including any claim under the Wrongful Death Act, are
626	limited to a maximum of $500,000, regardless of the number of
627	individual claimants or defendants, except that minor children
628	shall each have a separate claim. The Legislature expressly
629	finds that such conditional limit on noneconomic damages is
630	warranted by the claimant's refusal to accept arbitration and
631	represents an appropriate balance between the interests of all
632	residents who ultimately pay for rights and negligence losses
633	and the interests of those residents who are injured as a result
634	of negligence and violations of rights.
635	(b)  Attorney's fees may not be awarded.
636	(c)  Net economic damages may be awarded, including, but
637	not limited to, past and future medical and health care
638	expenses, loss of wages, and loss of earning capacity, offset by
639	collateral source payments.
640	(d)  Punitive damages may not be awarded under ss. 400.0237
641	and 400.0238.
642	(5)  Jury trial shall proceed in accordance with existing
643	principles of law.
644	Section 7.  Section 400.02345, Florida Statutes, is created
645	to read:
646	400.02345  Determination of whether claim is subject to
647	arbitration.--
648	(1)  A court of competent jurisdiction shall determine if a
649	claim is subject to voluntary arbitration under ss. 400.02342
650	and 400.02348 if the parties cannot agree. If a court determines
651	that a claim is subject to binding arbitration, the parties must
652	decide whether to voluntarily arbitrate the claim no later than
653	30 days after the date the court enters its order. If the
654	parties choose not to arbitrate, the limitations imposed by s.
655	400.02344 apply.
656	(2)  If a plaintiff amends a complaint to allege facts that
657	render the claim subject to binding arbitration under ss.
658	400.02342 and 400.02348, the parties must decide whether to
659	participate in binding arbitration no later than 30 days after
660	the plaintiff files the amended complaint. If the parties choose
661	not to arbitrate, the limitations imposed upon the parties under
662	ss. 400.02343 and 400.02344 apply.
663	Section 8.  Section 400.02347, Florida Statutes, is created
664	to read:
665	400.02347  Payment of arbitration award; interest.--
666	(1)  Within 20 days after the determination of damages by
667	the arbitration panel under s. 400.02342, the defendant shall:
668	(a)  Pay the arbitration award to the claimant.
669	(b)  Submit any dispute among multiple defendants to
670	arbitration under s. 400.02343.
671	(2)  Beginning 20 days after a damage award is issued by
672	the arbitration panel under s. 400.02342, the award shall begin
673	to accrue interest at the rate of 18 percent per year.
674	Section 9.  Section 400.02348, Florida Statutes, is created
675	to read:
676	400.02348  Appeal of arbitration awards and apportionment
677	of financial responsibility.--
678	(1)  An arbitration award and an apportionment of financial
679	responsibility are final agency action for purposes of s.
680	120.68. An appeal shall be taken to the district court of appeal
681	for the district in which the arbitration or apportionment took
682	place. The appeal is limited to a review of the record and must
683	proceed according to s. 120.68. The amount of an arbitration
684	award or an order apportioning financial responsibility, the
685	evidence in support of either, and the procedure by which either
686	is determined are subject to judicial review only in a
687	proceeding instituted pursuant to this section.
688	(2)  An appeal does not stay an arbitration or
689	apportionment award. An arbitration or apportionment panel,
690	arbitration panel member, or circuit court may not stay an
691	arbitration or apportionment award. A district court of appeal
692	may stay an award to prevent manifest injustice, but a district
693	court of appeal may not abrogate the provisions of s.
694	400.02347(2).
695	(3)  A party to an arbitration proceeding may enforce an
696	arbitration award or an apportionment of financial
697	responsibility by filing a petition in the circuit court for the
698	circuit in which the arbitration took place. A petition may not
699	be granted unless the time for appeal has expired. If an appeal
700	has been taken, a petition may not be granted with respect to an
701	arbitration award or an apportionment of financial
702	responsibility that has been stayed.
703	(4)  If the petitioner establishes the authenticity of the
704	arbitration award or of the apportionment of financial
705	responsibility, shows that the time for appeal has expired, and
706	demonstrates that no stay is in place, the court shall enter
707	such orders and judgments as are required to carry out the terms
708	of the arbitration award or apportionment of financial
709	responsibility. The orders are enforceable by the contempt
710	powers of the court, and execution shall issue upon the request
711	of a party for the judgment.
712	Section 10.  Section 400.024, Florida Statutes, is created
713	to read:
714	400.024  Pretrial nursing home services review
715	panel.--Either party may file a claim to be considered by a
716	nursing home services review panel at any time after service of
717	the written response by the defendant or insurer pursuant to s.
718	400.0233(3)(b) and prior to the filing of a suit. Only claims
719	meeting the definition of nursing home services pursuant to s.
720	400.02342(2) may be considered by the panel. Either party may
721	request voluntary binding arbitration upon the conclusion of
722	such proceedings.
723	(1)  The pretrial nursing home services review panel shall
724	be composed of three members, one of whom shall be an
725	administrative law judge furnished by the Division of
726	Administrative Hearings who shall serve as chair of the panel
727	and act in an advisory capacity. The chair shall establish,
728	consistent with this chapter, a schedule not to exceed 120 days
729	for the submission of evidence to the panel and allow for the
730	testimony of authorities and the presentation of facts related
731	to the claim. The chair shall vote to break a tie in the event
732	of a split opinion between the other two panel members.
733	(2)(a)  The chair shall appoint the other two panel members
734	and issue a scheduling order consistent with subsection (1)
735	within 15 days after a request to convene a nursing home
736	services review panel is received by the Division of
737	Administrative Hearings.
738	(b)  The chief judge of each circuit shall develop and
739	maintain a list of panel members. Panel members must be
740	practitioners licensed under the Division of Medical Quality
741	Assurance of the Department of Health and have the knowledge,
742	training, experience, and temperament necessary to analyze the
743	evidence and make a fair determination regarding the appropriate
744	standard of care for the provision of nursing home services
745	required by state law. The Division of Administrative Hearings
746	shall adopt rules providing criteria for serving on a panel
747	which shall include, but not be limited to, that panel members
748	have an appropriate level of expertise in the review of nursing
749	home care, that they have the knowledge and temperament to serve
750	on the panel, and that they have a lack of bias toward the
751	claimant or the facility.
752	(c)  A person who has previously acted as an expert witness
753	in a chapter 400 civil proceeding may not be a panel member.
754	(3)  The administrative law judge shall convene the
755	meetings of the panel, shall advise and assist panel members in
756	meeting their responsibilities, shall have the authority to rule
757	on all matters of discovery and procedure related to the panel,
758	and shall vote on matters of substance only in the case of a
759	tie.
760	(4)  Parties may promptly submit written evidence to be
761	considered by the panel. The evidence may consist of medical
762	charts, X rays, lab tests, excerpts of treatises, sworn
763	statements of witnesses, including the parties, and other forms
764	of evidence as determined by the panel.
765	(5)  The chair shall ensure that before the review panel
766	renders its decision, each member has the opportunity to review
767	every item of evidence submitted by the parties.
768	(6)  Before considering any evidence or deliberating with
769	other panel members, each member of the review panel shall take
770	an oath in writing on a form provided by the panel, which shall
771	read as follows:
772
773	I swear or affirm under penalty of perjury that I will well and
774	truly consider the evidence submitted by the parties, that I
775	will render my opinion without bias based upon the evidence
776	submitted by the parties, and that I have not communicated with
777	and will not communicate with any party before rendering my
778	opinion, except as authorized by law.
779
780	(7)  The chair shall advise the panel on any legal issues
781	involved in the review process and shall prepare and serve the
782	parties with a copy of the written opinion of the panel.
783	(8)  All parties shall have full access to any material
784	received by the review panel. A party shall provide copies of
785	any materials submitted to the panel to the opposing party.
786	(9)  The panel shall render its findings within 60 days
787	after the close of presentation of evidence to the panel. The
788	chair may extend the 60-day time period for an additional 30
789	days for good cause. The chair shall serve the parties with a
790	copy of the panel's written opinion within 15 days after the
791	panel renders its opinion.
792	(10)  The sole duty of the panel shall be to express the
793	opinion of the panel as to each allegation presented to it. The
794	panel's opinion shall be in writing, signed by the panel chair,
795	and shall state one of the following:
796	(a)  The evidence supports the conclusion that the
797	defendant or defendants failed to act within the appropriate
798	standard of care required by state law or was negligent and that
799	such conduct may have caused the injuries suffered by the
800	plaintiff to a reasonable degree of medical or nursing
801	certainty.
802	(b)  The evidence does not support the conclusion that the
803	defendant or defendants failed to act within the appropriate
804	standard of care required by state law or was negligent and that
805	such conduct may have caused the injuries suffered by the
806	plaintiff to a reasonable degree of medical or nursing
807	certainty.
808	(c)  The panel is unable to reach an opinion regarding
809	whether the defendant or defendants failed to act within the
810	appropriate standard of care required by state law or was
811	negligent and that such conduct may have caused the injuries
812	suffered by the plaintiff to a reasonable degree of medical or
813	nursing certainty.
814	(11)  If the panel fails to timely render its findings, the
815	chair shall issue an order dissolving the panel, and the
816	claimant shall have 60 days or the remainder of the period of
817	the statute of limitations, whichever is greater, within which
818	to file suit or request arbitration. No subsequent panel shall
819	be convened.
820	(12)  Unless otherwise discoverable, a statement,
821	discussion, written document, report, or other work product
822	generated after a presuit claim is referred to a review panel
823	under this part is not discoverable or admissible in any civil
824	action for any purpose. The final written opinion of the panel
825	is admissible in any subsequent action, including arbitration. A
826	member of the panel may not be called to testify in any
827	subsequent proceeding.
828	(13)  The Division of Administrative Hearings may adopt
829	rules to carry out the provisions of this section, including the
830	assessment and payment of fees.
831	(14)  The Division of Administrative Hearings may charge
832	the requesting party a fee not to exceed $1,000 for conducting a
833	nursing home services review panel.
834	(15)  The Division of Administrative Hearings may charge
835	the requesting party a fee to compensate the panel members other
836	than the chair. Panel member fees shall be determined by the
837	division and may not exceed the customary fee paid to court-
838	approved mediators in the circuit in which the claim would be
839	filed.
840	(16)  The requesting party shall pay the fees of the panel
841	members and the costs assessed by the Division of Administrative
842	Hearings associated with the nursing home services review panel.
843	If the division determines that the plaintiff is indigent and
844	unable to pay, the defendant shall pay the fees and costs
845	assessed by the division and have a claim for reimbursement
846	against the estate of the plaintiff.
847	Section 11.  Subsection (20) of section 400.141, Florida
848	Statutes, is amended, subsections (21) through (24) are
849	renumbered as subsections (22) through (25), respectively, and a
850	new subsection (22) is added to said section, to read:
851	400.141  Administration and management of nursing home
852	facilities.--Every licensed facility shall comply with all
853	applicable standards and rules of the agency and shall:
854	(20)  Effective July 1, 2005, maintain general and
855	professional liability insurance coverage, written through
856	admitted carriers, surplus carriers, or offshore captives, in an
857	amount not less than $800 per licensed nursing home bed that is
858	in force at all times. In lieu of general and professional
859	liability insurance coverage, a state-designated teaching
860	nursing home and its affiliated assisted living facilities
861	created under s. 430.80 may demonstrate proof of financial
862	responsibility as provided in s. 430.80(3)(h); the exception
863	provided in this paragraph shall expire July 1, 2005.
864	(21)(a)  Effective July 1, 2005, in lieu of general and
865	professional liability insurance coverage, demonstrate proof of
866	financial responsibility in one of the following ways:
867	1.  Establishing an escrow account consisting of cash or
868	assets eligible for deposit in accordance with s. 625.52 in an
869	annual amount not less than $800 per licensed nursing home bed,
870	to be funded in 12 monthly installments at the inception of the
871	escrow account; or
872	2.  Obtaining an unexpired, irrevocable letter of credit,
873	established under chapter 675, in an annual amount not less than
874	$800 per licensed nursing home bed. The letter of credit shall
875	be payable to the facility as beneficiary upon presentment of a
876	final judgment indicating liability and awarding damages to be
877	paid by the facility or upon presentment of a settlement
878	agreement signed by all parties to the agreement when the final
879	judgment or settlement is a result of a liability claim against
880	the facility. The letter of credit shall be nonassignable and
881	nontransferable. The letter of credit shall be issued by any
882	bank or savings association organized and existing under the
883	laws of this state or any bank or savings association organized
884	under the laws of the United States which has its principal
885	place of business in this state or has a branch office that is
886	authorized under the laws of this state or of the United States
887	to receive deposits in this state.
888	(b)  In lieu of general and professional liability
889	insurance coverage, a state-designated teaching nursing home and
890	its affiliated assisted living facilities created under s.
891	430.80 may demonstrate proof of financial responsibility as
892	provided in s. 430.80(3)(h).
893	(c)  The required amount of general and professional
894	liability insurance or financial responsibility shall be
895	recalculated beginning January 1, 2007, and continue each
896	January 1, by the rate of inflation for the preceding year,
897	using the Consumer Price Index-Urban B-All Items, as published
898	by the United States Bureau of Labor Statistics.
899	(d)  General and professional liability coverage or
900	financial responsibility must be demonstrated at the time of
901	initial licensure and at the time of relicensure in order to
902	maintain the license.
903	(e)  Notwithstanding any provision to the contrary, a
904	nursing home facility that is part of a continuing care facility
905	certified under chapter 651 and owned by the same corporation
906	may use the liability insurance or financial responsibility that
907	is in effect for the continuing care facility as proof of
908	compliance if the total amount of coverage or financial
909	responsibility is no less than the minimum amount required for
910	its nursing home facility based on $800 per licensed nursing
911	home bed under the requirements of this section and as adjusted
912	for inflation as provided in paragraph (c).
913	(f)  A corporation that owns a nursing home facility and
914	offers other long-term care or housing services under the same
915	corporate entity or a holding company through which nursing home
916	care and other services are offered, including, but not limited
917	to, assisted living, home health, apartments or units for
918	independent living, or any combination thereof, may use the
919	liability insurance or financial responsibility in effect for
920	the corporation or holding company as proof of compliance if the
921	amount of coverage or financial responsibility is no less than
922	the minimum amount required for its nursing home facility based
923	on $800 per licensed nursing home bed under the requirements of
924	this section and as adjusted for inflation as provided in
925	paragraph (c).
926
927	Facilities that have been awarded a Gold Seal under the program
928	established in s. 400.235 may develop a plan to provide
929	certified nursing assistant training as prescribed by federal
930	regulations and state rules and may apply to the agency for
931	approval of their program.
932	Section 12.  Subsection (3) is added to section 400.151,
933	Florida Statutes, to read:
934	400.151  Contracts.--
935	(3)  If a contract to which this section applies contains a
936	provision that provides for binding arbitration of any dispute
937	that may arise under, or is related to, the duties, obligations,
938	or services set forth in the contract, the binding arbitration
939	provision must comply with the following criteria:
940	(a)  The provision must be distinguishable from the
941	remainder of the contract by the use of uppercase boldface type
942	to denominate the provision as one providing for "DISPUTE
943	RESOLUTION" or, alternatively, "ARBITRATION." The provision must
944	also use upper case and boldface type to notify the resident
945	that signing the contract means that the party agrees to waive
946	any right to a jury trial and consents to engage in voluntary
947	binding arbitration.
948	(b)  The provision must include a short, easily
949	understandable explanation of the arbitration process and what
950	claims are subject to arbitration. The provision must clearly
951	inform the resident, or the resident's designee, that he or she
952	has the right to consult an attorney and have the agreement
953	reviewed by an attorney of his or her choice. A representative
954	of the licensee must read the provision to the resident and
955	answer any questions asked by the resident. If a resident
956	requires special accommodations for reading or hearing the
957	provision, the licensee must ensure that appropriate
958	accommodations are made.
959	(c)  The provision must comply with chapter 682, including,
960	but not limited to, the right to participate in discovery, the
961	right to counsel, the right to present evidence, the right to
962	cross-examine witnesses, and the right to present expert
963	testimony.
964	(d)  The provision shall not place any limitation on the
965	amount of the damages, if any, that may be awarded by the
966	arbitrator, except that the election of remedies as set forth in
967	s. 400.023(1) shall apply and, to the extent a claimant seeks to
968	assert a claim for punitive damages, the provisions of ss.
969	400.0237 and 400.0238 shall apply in determining whether such a
970	claim may be brought and the amount of damages, if any, that may
971	be awarded.
972	(e)  The provision must state that the laws of this state
973	apply to any legal issue presented to the arbitration panel and
974	must state that the arbitration will be held in the county where
975	the nursing home facility is located.
976	(f)  The provision does not limit the resident from
977	bringing a claim in the arbitration based upon an alleged
978	deprivation of his or her resident rights as set forth in s.
979	400.022, and in accordance with the standards set forth in s.
980	400.023(2)-(5).
981	(g)  The resident or, if the resident is unable to sign the
982	contract due to any physical or mental impairment, the
983	resident's health care surrogate, health care proxy, spouse, or
984	other person holding a power of attorney or durable family power
985	of attorney has 14 calendar days after the date of execution of
986	the agreement, excluding state holidays, in which to rescind the
987	arbitration provision. The rescission does not affect the other
988	duties and obligations set forth in the agreement by and between
989	the parties.
990	(h)  The page on which the dispute resolution or
991	arbitration provision appears must include a signature line or
992	other area where the resident or the resident's designee can
993	sign or initial that he or she has read the page and that the
994	contents of the page have been explained to him or her.
995	(i)  The provision may not require the resident or the
996	resident's designee to incur any initiation fees for the binding
997	arbitration process which would be greater than the filing fee
998	applicable to the initiation of a civil action in the circuit
999	where the claim could be brought.
1000	(j)  This subsection applies only to contracts having
1001	arbitration provisions signed on or after July 1, 2005. This
1002	subsection does not apply to continuing care contracts governed
1003	under chapter 651.
1004	Section 13.  Subsection (13) is added to section 409.907,
1005	Florida Statutes, to read:
1006	409.907  Medicaid provider agreements.--The agency may make
1007	payments for medical assistance and related services rendered to
1008	Medicaid recipients only to an individual or entity who has a
1009	provider agreement in effect with the agency, who is performing
1010	services or supplying goods in accordance with federal, state,
1011	and local law, and who agrees that no person shall, on the
1012	grounds of handicap, race, color, or national origin, or for any
1013	other reason, be subjected to discrimination under any program
1014	or activity for which the provider receives payment from the
1015	agency.
1016	(13)  Effective January 1, 2007, and notwithstanding s.
1017	409.905(8), the agency may not renew a Medicaid provider
1018	agreement with a chronically poor-performing nursing facility.
1019	Section 14.  Paragraph (b) of subsection (2) of section
1020	409.908, Florida Statutes, is amended to read:
1021	409.908  Reimbursement of Medicaid providers.--Subject to
1022	specific appropriations, the agency shall reimburse Medicaid
1023	providers, in accordance with state and federal law, according
1024	to methodologies set forth in the rules of the agency and in
1025	policy manuals and handbooks incorporated by reference therein.
1026	These methodologies may include fee schedules, reimbursement
1027	methods based on cost reporting, negotiated fees, competitive
1028	bidding pursuant to s. 287.057, and other mechanisms the agency
1029	considers efficient and effective for purchasing services or
1030	goods on behalf of recipients. If a provider is reimbursed based
1031	on cost reporting and submits a cost report late and that cost
1032	report would have been used to set a lower reimbursement rate
1033	for a rate semester, then the provider's rate for that semester
1034	shall be retroactively calculated using the new cost report, and
1035	full payment at the recalculated rate shall be effected
1036	retroactively. Medicare-granted extensions for filing cost
1037	reports, if applicable, shall also apply to Medicaid cost
1038	reports. Payment for Medicaid compensable services made on
1039	behalf of Medicaid eligible persons is subject to the
1040	availability of moneys and any limitations or directions
1041	provided for in the General Appropriations Act or chapter 216.
1042	Further, nothing in this section shall be construed to prevent
1043	or limit the agency from adjusting fees, reimbursement rates,
1044	lengths of stay, number of visits, or number of services, or
1045	making any other adjustments necessary to comply with the
1046	availability of moneys and any limitations or directions
1047	provided for in the General Appropriations Act, provided the
1048	adjustment is consistent with legislative intent.
1049	(2)
1050	(b)  Subject to any limitations or directions provided for
1051	in the General Appropriations Act, the agency shall establish
1052	and implement a Florida Title XIX Long-Term Care Reimbursement
1053	Plan (Medicaid) for nursing home care in order to provide care
1054	and services in conformance with the applicable state and
1055	federal laws, rules, regulations, and quality and safety
1056	standards and to ensure that individuals eligible for medical
1057	assistance have reasonable geographic access to such care.
1058	1.  Changes of ownership or of licensed operator do not
1059	qualify for increases in reimbursement rates associated with the
1060	change of ownership or of licensed operator. The agency shall
1061	amend the Title XIX Long Term Care Reimbursement Plan to provide
1062	that the initial nursing home reimbursement rates, for the
1063	operating, patient care, and MAR components, associated with
1064	related and unrelated party changes of ownership or licensed
1065	operator filed on or after September 1, 2001, are equivalent to
1066	the previous owner's reimbursement rate.
1067	2.  The agency shall amend the long-term care reimbursement
1068	plan and cost reporting system to create direct care and
1069	indirect care subcomponents of the patient care component of the
1070	per diem rate. These two subcomponents together shall equal the
1071	patient care component of the per diem rate. Separate cost-based
1072	ceilings shall be calculated for each patient care subcomponent.
1073	The direct care subcomponent of the per diem rate shall be
1074	limited by the cost-based class ceiling, and the indirect care
1075	subcomponent shall be limited by the lower of the cost-based
1076	class ceiling, by the target rate class ceiling, or by the
1077	individual provider target. The agency shall adjust the patient
1078	care component effective January 1, 2002. The cost to adjust the
1079	direct care subcomponent shall be net of the total funds
1080	previously allocated for the case mix add-on. The agency shall
1081	make the required changes to the nursing home cost reporting
1082	forms to implement this requirement effective January 1, 2002.
1083	3.  The direct care subcomponent shall include salaries and
1084	benefits of direct care staff providing nursing services
1085	including registered nurses, licensed practical nurses, and
1086	certified nursing assistants who deliver care directly to
1087	residents in the nursing home facility. This excludes nursing
1088	administration, MDS, and care plan coordinators, staff
1089	development, and staffing coordinator.
1090	4.  All other patient care costs shall be included in the
1091	indirect care cost subcomponent of the patient care per diem
1092	rate. There shall be no costs directly or indirectly allocated
1093	to the direct care subcomponent from a home office or management
1094	company.
1095	5.  On July 1 of each year, the agency shall report to the
1096	Legislature direct and indirect care costs, including average
1097	direct and indirect care costs per resident per facility and
1098	direct care and indirect care salaries and benefits per category
1099	of staff member per facility.
1100	6.  In order to offset the cost of general and professional
1101	liability insurance, the agency shall amend the plan to allow
1102	for interim rate adjustments to reflect increases in the cost of
1103	general or professional liability insurance for nursing homes.
1104	This provision shall be implemented to the extent existing
1105	appropriations are available.
1106	7.  Effective October 1, 2005, the agency shall amend the
1107	plan to recognize increases in professional liability insurance
1108	costs incurred by a nursing home facility. The agency shall
1109	provide a pass-through of professional liability insurance,
1110	including contributions establishing financial responsibility
1111	under s. 400.141(20), in an amount that does not exceed $800 per
1112	licensed nursing home bed. Any portion of the costs of
1113	professional liability insurance which exceed $800 per bed is
1114	recognized as an operating cost and is subject to the operating
1115	cost ceiling and target.
1116	8.  The agency may impose a quality assurance assessment on
1117	all nursing home facilities licensed under part II of chapter
1118	400 as a provider contribution for making payments, including
1119	federal matching funds, through the methodologies for Medicaid
1120	nursing home reimbursement. Funds received for this purpose must
1121	be accounted for separately and may not be commingled with other
1122	state or local funds in any manner.
1123
1124	It is the intent of the Legislature that the reimbursement plan
1125	achieve the goal of providing access to health care for nursing
1126	home residents who require large amounts of care while
1127	encouraging diversion services as an alternative to nursing home
1128	care for residents who can be served within the community. The
1129	agency shall base the establishment of any maximum rate of
1130	payment, whether overall or component, on the available moneys
1131	as provided for in the General Appropriations Act. The agency
1132	may base the maximum rate of payment on the results of
1133	scientifically valid analysis and conclusions derived from
1134	objective statistical data pertinent to the particular maximum
1135	rate of payment.
1136	Section 15.  For the purpose of incorporating the amendment
1137	to section 400.141, Florida Statutes, in a reference thereto,
1138	paragraph (h) of subsection (3) of section 430.80, Florida
1139	Statutes, is reenacted to read:
1140	430.80  Implementation of a teaching nursing home pilot
1141	project.--
1142	(3)  To be designated as a teaching nursing home, a nursing
1143	home licensee must, at a minimum:
1144	(h)  Maintain insurance coverage pursuant to s. 400.141(20)
1145	or proof of financial responsibility in a minimum amount of
1146	$750,000. Such proof of financial responsibility may include:
1147	1.  Maintaining an escrow account consisting of cash or
1148	assets eligible for deposit in accordance with s. 625.52; or
1149	2.  Obtaining and maintaining pursuant to chapter 675 an
1150	unexpired, irrevocable, nontransferable and nonassignable letter
1151	of credit issued by any bank or savings association organized
1152	and existing under the laws of this state or any bank or savings
1153	association organized under the laws of the United States that
1154	has its principal place of business in this state or has a
1155	branch office which is authorized to receive deposits in this
1156	state. The letter of credit shall be used to satisfy the
1157	obligation of the facility to the claimant upon presentment of a
1158	final judgment indicating liability and awarding damages to be
1159	paid by the facility or upon presentment of a settlement
1160	agreement signed by all parties to the agreement when such final
1161	judgment or settlement is a result of a liability claim against
1162	the facility.
1163	Section 16.  Adjustment of arbitration limits.-- Effective
1164	January 1, 2008, the arbitration limits set forth in sections
1165	400.02342(7) and 400.02344(4)(a), Florida Statutes, shall be
1166	adjusted annually for inflation as measured by the Consumer
1167	Price Index for All Urban Consumers published by the Bureau of
1168	Labor Statistics of the United States Department of Labor.
1169	Section 17.  Chronically poor-performing nursing home
1170	facilities.--
1171	(1)  It is the intent of the Legislature that the Agency
1172	for Health Care Administration not renew Medicaid provider
1173	agreements with any nursing home facility that has a pattern,
1174	over time, of citations for actual harm or immediate jeopardy
1175	citations in accordance with state and federal licensure and
1176	certification requirements. These facilities are known as
1177	chronically poor-performing nursing home facilities. In order to
1178	carry out the intent of the Legislature, the agency, after
1179	consulting with the Florida Health Care Association, the Florida
1180	Association of Homes for the Aging, and the Association for the
1181	Advancement of Retired Persons, shall:
1182	(a)  Define a chronically poor-performing nursing home
1183	facility with a specific period of time for determining a
1184	pattern.
1185	(b)  Identify, notify, monitor, measure improvement, and,
1186	when appropriate, decline to renew the Medicaid agreements for
1187	chronically poor-performing nursing facilities.
1188	(c)  Foster the improvement of chronically poor-performing
1189	nursing facilities by including time limits for demonstrating
1190	measurable improvement, including identifying criteria that
1191	measure the improvement.
1192	(d)  Analyze and prepare a report regarding the existing
1193	Medicaid "Up-or-Out" Quality of Care Contract Management Program
1194	authorized in s. 400.148, Florida Statutes, including the
1195	progress of participating nursing home facilities, benefits of
1196	the program, and success in achieving the intended goals.
1197	(e)  Review all administrative procedures and barriers
1198	relating to identifying and eliminating chronically poor-
1199	performing nursing home facilities and make recommendations for
1200	necessary statutory changes to eliminate those barriers.
1201	(2)  It is the intent of the Legislature that the Institute
1202	on Aging at the University of South Florida conduct a study of
1203	all federal and state enforcement sanctions and remedies
1204	available to the Agency for Health Care Administration for use
1205	with nursing home facilities. The study must include, but need
1206	not be limited to, a review and evaluation of the agency's use
1207	over the past 5 years of receivership, civil monetary penalties,
1208	and denial of payment for new admissions. The study must also
1209	evaluate the state survey process, including statewide
1210	consistency in survey findings by state area office, the
1211	systemic costs for survey appeals, the effectiveness and
1212	objectivity of the informal dispute-resolution process in
1213	resolving disputes, and recent experiences of reversals of final
1214	orders of the agency and modifications of the state's
1215	administrative actions concerning surveys and ratings. The
1216	results of the study shall be presented to the Governor, the
1217	President of the Senate, and the Speaker of the House of
1218	Representatives by February 1, 2006.
1219	Section 18.  Assessments of nursing home facilities
1220	assessments.--
1221	(1)  Effective July 1, 2006, each nursing home facility
1222	licensed under chapter 400, Florida Statutes, shall pay an
1223	annual assessment for each licensed bed in the facility. The
1224	funds raised by the assessment are intended to ensure access to
1225	nursing home services by the state's elderly population. The
1226	funds raised by the assessment shall be used as provided in this
1227	section.
1228	(2)  The amount of the annual assessment shall be
1229	determined in the following manner:
1230	(a)  The initial annual assessment shall be $800 per bed.
1231	Thereafter, the assessment shall be adjusted annually for
1232	inflation as measured by the Consumer Price Index for All Urban
1233	Consumers published by the Bureau of Labor Statistics of the
1234	United States Department of Labor.
1235	(b)  The initial assessment shall be determined by the
1236	Agency for Health Care Administration and shall be based upon
1237	the agency's determination of the needs that will be paid for by
1238	the assessment and the ability of nursing home service providers
1239	to pay the assessment.
1240	(3)  It is the intent of the Legislature that funds derived
1241	from the assessment may not be used to supplement existing
1242	funding of programs providing nursing home services, but rather
1243	to enhance the services provided by the current funding.
1244	Section 19.  If any portion of this act is found to be
1245	unconstitutional, then the entire act shall be null, void, and
1246	of no effect.
1247	Section 20.  Except as otherwise provided herein, this act
1248	shall take effect July 1, 2005.

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