Senate Bill sb1836c1

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    Florida Senate - 2005                           CS for SB 1836

    By the Committee on Children and Families; and Senator
    Argenziano




    586-1999-05

  1                      A bill to be entitled

  2         An act relating to assisted care communities;

  3         creating ch. 429, F.S., and transferring pt.

  4         III of ch. 400, F.S., relating to assisted

  5         living facilities, to pt. I of ch. 429, F.S.,

  6         and pt. VII of ch. 400, F.S., relating to adult

  7         family-care homes, to pt. II of ch. 429, F.S.,

  8         and pt. V of ch. 400, F.S., relating to adult

  9         day care centers, to pt. III of ch. 429, F.S.;

10         amending ss. 101.655, 189.428, 196.1975,

11         202.125, 205.1965, 212.031, 212.08, 296.02,

12         381.0035, 394.455, 394.4574, 394.463, 400.0063,

13         400.0069, 400.0073, 400.0077, 400.0239,

14         400.119, 400.141, 400.142, 400.191, 400.215,

15         400.23, 400.232, 400.401, 400.402, 400.404,

16         400.407, 400.408, 400.411, 400.412, 400.414,

17         400.415, 400.417, 400.4174, 400.4176, 400.4177,

18         400.4178, 400.418, 400.419, 400.4195, 400.42,

19         400.421, 400.422, 400.423, 400.424, 400.4255,

20         400.4256, 400.426, 400.427, 400.4275, 400.428,

21         400.429, 400.4293, 400.4294, 400.4295,

22         400.4296, 400.4297, 400.431, 400.434, 400.441,

23         400.442, 400.444, 400.4445, 400.447, 400.451,

24         400.452, 400.453, 400.462, 400.464, 400.497,

25         400.55, 400.551, 400.552, 400.553, 400.554,

26         400.555, 400.556, 400.5565, 400.557, 400.5571,

27         400.5572, 400.5575, 400.558, 400.559, 400.56,

28         400.562, 400.563, and 400.564, 400.601,

29         400.616, 400.617, 400.618, 400.619, 400.6194,

30         400.6196, 400.621, 400.6211, 400.622, 400.625,

31         400.6255, 400.628, 400.629, 400.93, 400.962,

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    Florida Senate - 2005                           CS for SB 1836
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 1         400.980, 400.9905, 400.9935, 401.23, 402.164,

 2         408.033, 408.831, 409.212, 409.907, 410.031,

 3         410.034, 415.1111, 430.601, 430.703, 435.03,

 4         435.04, 440.13, 456.0375, 465.0235, 468.505,

 5         477.025, 509.032, 509.241, 627.732, 651.011,

 6         651.022, 651.023, 651.055, 651.095, 651.118,

 7         765.1103, 765.205, 768.735, and 943.0585, F.S.;

 8         conforming references to changes made by the

 9         act; providing a directive to the Division of

10         Statutory Revision to make necessary conforming

11         changes to the Florida Statutes; providing an

12         effective date.

13  

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

15  

16         Section 1.  Sections 400.401, 400.402, 400.404,

17  400.407, 400.4075, 400.408, 400.411, 400.412, 400.414,

18  400.415, 400.417, 400.4174, 400.4176, 400.4177, 400.4178,

19  400.418, 400.419, 400.4195, 400.42, 400.421, 400.422, 400.423,

20  400.424, 400.4255, 400.4256, 400.426, 400.427, 400.4275,

21  400.428, 400.429, 400.4293, 400.4294, 400.4295, 400.4296,

22  400.4297, 400.4298, 400.431, 400.434, 400.435, 400.441,

23  400.442, 400.444, 400.4445, 400.447, 400.449, 400.451,

24  400.452, 400.453, and 400.454, Florida Statutes, are

25  renumbered as sections 429.01, 429.02, 429.04, 429.07,

26  429.075, 429.08, 429.11, 429.12, 429.14, 429.15, 429.17,

27  429.174, 429.176, 429.177, 429.178, 429.18, 429.19, 429.195,

28  429.20, 429.21, 429.22, 429.23, 429.24, 429.255, 429.256,

29  429.26, 429.27, 429.275, 429.28, 429.29, 429.293, 429.294,

30  429.295, 429.296, 429.297, 429.298, 429.31, 429.34, 429.35,

31  429.41, 429.42, 429.44, 429.445, 429.47, 429.49, 429.51,

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    Florida Senate - 2005                           CS for SB 1836
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 1  429.52, 429.53, and 429.54, Florida Statutes, respectively,

 2  and designated as part I of chapter 429, Florida Statutes,

 3  entitled "ASSISTED CARE COMMUNITIES."

 4         Section 2.  Sections 400.616, 400.617, 400.618,

 5  400.619, 400.6194, 400.6196, 400.621, 400.6211, 400.622,

 6  400.625, 400.6255, 400.628, 400.629, Florida Statutes, are

 7  renumbered as sections 429.60, 429.63, 429.65, 429.67, 429.69,

 8  429.71, 429.73, 429.75, 429.77, 429.81, 429.83, and 429.85,

 9  Florida Statutes, respectively, and designated as part II of

10  chapter 429, Florida Statutes, entitled "ASSISTED CARE

11  COMMUNITIES."

12         Section 3.  Sections 400.55, 400.551, 400.552, 400.553,

13  400.554, 400.555, 400.556, 400.5565, 400.557,  400.5571,

14  400.5572, 400.5575, 400.558, 400.559, 400.56, 400.562,

15  400.563, and 400.564, Florida Statutes, are renumbered as

16  Sections 429.90, 429.901, 429.903, 429.905, 429.907, 429.909,

17  429.911, 429.913, 429.915, 429.917, 429.919, 429.921, 429.923,

18  429.925, 429.927, 429.929, 429.931, and 429.933, Florida

19  Statutes, and designated as part III of Chapter 429, Florida

20  Statutes, entitled "ASSISTED CARE COMMUNITIES."

21         Section 4.  Subsection (1) of section 101.655, Florida

22  Statutes, is amended to read:

23         101.655  Supervised voting by absent electors in

24  certain facilities.--

25         (1)  The supervisor of elections of a county shall

26  provide supervised voting for absent electors residing in any

27  assisted living facility, as defined in s. 429.02 400.402, or

28  nursing home facility, as defined in s. 400.021, within that

29  county at the request of any administrator of such a facility.

30  Such request for supervised voting in the facility shall be

31  made by submitting a written request to the supervisor of

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 1  elections no later than 21 days prior to the election for

 2  which that request is submitted. The request shall specify the

 3  name and address of the facility and the name of the electors

 4  who wish to vote absentee in that election. If the request

 5  contains the names of fewer than five voters, the supervisor

 6  of elections is not required to provide supervised voting.

 7         Section 5.  Subsection (9) of section 189.428, Florida

 8  Statutes, is amended to read:

 9         189.428  Special districts; oversight review process.--

10         (9)  This section does not apply to a deepwater port

11  listed in s. 311.09(1) which is in compliance with a port

12  master plan adopted pursuant to s. 163.3178(2)(k), or to an

13  airport authority operating in compliance with an airport

14  master plan approved by the Federal Aviation Administration,

15  or to any special district organized to operate health systems

16  and facilities licensed under chapter 395, or chapter 400, or

17  chapter 429.

18         Section 6.  Paragraph (b) of subsection (2) of section

19  196.1975, Florida Statutes, is amended to read:

20         196.1975  Exemption for property used by nonprofit

21  homes for the aged.--Nonprofit homes for the aged are exempt

22  to the extent that they meet the following criteria:

23         (2)  A facility will not qualify as a "home for the

24  aged" unless at least 75 percent of the occupants are over the

25  age of 62 years or totally and permanently disabled.  For

26  homes for the aged which are exempt from paying income taxes

27  to the United States as specified in subsection (1), licensing

28  by the Agency for Health Care Administration is required for

29  ad valorem tax exemption hereunder only if the home:

30         (b)  Qualifies as an assisted living facility under

31  part III of chapter 429 400.

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    Florida Senate - 2005                           CS for SB 1836
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 1         Section 7.  Paragraph (c) of subsection (4) of section

 2  202.125, Florida Statutes, is amended to read:

 3         202.125  Sales of communications services; specified

 4  exemptions.--

 5         (4)  The sale of communications services to a home for

 6  the aged, religious institution or educational institution

 7  that is exempt from federal income tax under s. 501(c)(3) of

 8  the Internal Revenue Code, or by a religious institution that

 9  is exempt from federal income tax under s. 501(c)(3) of the

10  Internal Revenue Code having an established physical place for

11  worship at which nonprofit religious services and activities

12  are regularly conducted and carried on, is exempt from the

13  taxes imposed or administered pursuant to ss. 202.12 and

14  202.19. As used in this subsection, the term:

15         (c)  "Home for the aged" includes any nonprofit

16  corporation:

17         1.  In which at least 75 percent of the occupants are

18  62 years of age or older or totally and permanently disabled;

19  which qualifies for an ad valorem property tax exemption under

20  s. 196.196, s. 196.197, or s. 196.1975; and which is exempt

21  from the sales tax imposed under chapter 212.

22         2.  Licensed as a nursing home under chapter 400  or an

23  assisted living facility under chapter 429 400 and which is

24  exempt from the sales tax imposed under chapter 212.

25         Section 8.  Section 205.1965, Florida Statutes, is

26  amended to read:

27         205.1965  Assisted living facilities.--A county or

28  municipality may not issue an occupational license for the

29  operation of an assisted living facility pursuant to part III

30  of chapter 429 400 without first ascertaining that the

31  applicant has been licensed by the Agency for Health Care

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 1  Administration to operate such facility at the specified

 2  location or locations.  The Agency for Health Care

 3  Administration shall furnish to local agencies responsible for

 4  issuing occupational licenses sufficient instructions for

 5  making the above required determinations.

 6         Section 9.  Paragraph (b) of subsection (1) of section

 7  212.031, Florida Statutes, is amended to read:

 8         212.031  Tax on rental or license fee for use of real

 9  property.--

10         (1)

11         (b)  When a lease involves multiple use of real

12  property wherein a part of the real property is subject to the

13  tax herein, and a part of the property would be excluded from

14  the tax under subparagraph (a)1., subparagraph (a)2.,

15  subparagraph (a)3., or subparagraph (a)5., the department

16  shall determine, from the lease or license and such other

17  information as may be available, that portion of the total

18  rental charge which is exempt from the tax imposed by this

19  section. The portion of the premises leased or rented by a

20  for-profit entity providing a residential facility for the

21  aged will be exempt on the basis of a pro rata portion

22  calculated by combining the square footage of the areas used

23  for residential units by the aged and for the care of such

24  residents and dividing the resultant sum by the total square

25  footage of the rented premises. For purposes of this section,

26  the term "residential facility for the aged" means a facility

27  that is licensed or certified in whole or in part under

28  chapter 400, chapter 429, or chapter 651; or that provides

29  residences to the elderly and is financed by a mortgage or

30  loan made or insured by the United States Department of

31  Housing and Urban Development under s. 202, s. 202 with a s. 8

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 1  subsidy, s. 221(d)(3) or (4), s. 232, or s. 236 of the

 2  National Housing Act; or other such similar facility that

 3  provides residences primarily for the elderly.

 4         Section 10.  Paragraph (i) of subsection (7) of section

 5  212.08, Florida Statutes, is amended to read:

 6         212.08  Sales, rental, use, consumption, distribution,

 7  and storage tax; specified exemptions.--The sale at retail,

 8  the rental, the use, the consumption, the distribution, and

 9  the storage to be used or consumed in this state of the

10  following are hereby specifically exempt from the tax imposed

11  by this chapter.

12         (7)  MISCELLANEOUS EXEMPTIONS.--Exemptions provided to

13  any entity by this chapter do not inure to any transaction

14  that is otherwise taxable under this chapter when payment is

15  made by a representative or employee of the entity by any

16  means, including, but not limited to, cash, check, or credit

17  card, even when that representative or employee is

18  subsequently reimbursed by the entity. In addition, exemptions

19  provided to any entity by this subsection do not inure to any

20  transaction that is otherwise taxable under this chapter

21  unless the entity has obtained a sales tax exemption

22  certificate from the department or the entity obtains or

23  provides other documentation as required by the department.

24  Eligible purchases or leases made with such a certificate must

25  be in strict compliance with this subsection and departmental

26  rules, and any person who makes an exempt purchase with a

27  certificate that is not in strict compliance with this

28  subsection and the rules is liable for and shall pay the tax.

29  The department may adopt rules to administer this subsection.

30         (i)  Hospital meals and rooms.--Also exempt from

31  payment of the tax imposed by this chapter on rentals and

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 1  meals are patients and inmates of any hospital or other

 2  physical plant or facility designed and operated primarily for

 3  the care of persons who are ill, aged, infirm, mentally or

 4  physically incapacitated, or otherwise dependent on special

 5  care or attention. Residents of a home for the aged are exempt

 6  from payment of taxes on meals provided through the

 7  facility.  A home for the aged is defined as a facility that

 8  is licensed or certified in part or in whole under chapter

 9  400, chapter 429, or chapter 651, or that is financed by a

10  mortgage loan made or insured by the United States Department

11  of Housing and Urban Development under s. 202, s. 202 with a

12  s. 8 subsidy, s. 221(d)(3) or (4), s. 232, or s. 236 of the

13  National Housing Act, or other such similar facility designed

14  and operated primarily for the care of the aged.

15         Section 11.  Subsection (5) of section 296.02, Florida

16  Statutes, is amended to read:

17         296.02  Definitions.--For the purposes of this part,

18  except where the context clearly indicates otherwise:

19         (5)  "Extended congregate care" has the meaning given

20  to that term under s. 429.02 400.402.

21         Section 12.  Subsections (1) and (3) of section

22  381.0035, Florida Statutes, are amended to read:

23         381.0035  Educational course on HIV and AIDS; employees

24  and clients of certain health care facilities.--

25         (1)  The Department of Health shall require all

26  employees and clients of facilities licensed under chapters

27  393, 394, and 397 and employees of facilities licensed under

28  chapter 395, and parts II, III, IV, and VI of chapter 400, and

29  chapter 429 to complete, biennially, a continuing educational

30  course on the modes of transmission, infection control

31  procedures, clinical management, and prevention of human

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 1  immunodeficiency virus and acquired immune deficiency syndrome

 2  with an emphasis on appropriate behavior and attitude change.

 3  Such instruction shall include information on current Florida

 4  law and its impact on testing, confidentiality of test

 5  results, and treatment of patients and any protocols and

 6  procedures applicable to human immunodeficiency counseling and

 7  testing, reporting, the offering of HIV testing to pregnant

 8  women, and partner notification issues pursuant to ss. 381.004

 9  and 384.25.

10         (3)  Facilities licensed under chapters 393, 394, 395,

11  and 397, and parts II, III, IV, and VI of chapter 400, and

12  chapter 429 shall maintain a record of employees and dates of

13  attendance at human immunodeficiency virus and acquired immune

14  deficiency syndrome educational courses.

15         Section 13.  Subsection (10) of section 394.455,

16  Florida Statutes, is amended to read:

17         394.455  Definitions.--As used in this part, unless the

18  context clearly requires otherwise, the term:

19         (10)  "Facility" means any hospital, community

20  facility, public or private facility, or receiving or

21  treatment facility providing for the evaluation, diagnosis,

22  care, treatment, training, or hospitalization of persons who

23  appear to have a mental illness or have been diagnosed as

24  having a mental illness.  "Facility" does not include any

25  program or entity licensed pursuant to chapter 400 or chapter

26  429.

27         Section 14.  Paragraphs (b), (c), and (e) of subsection

28  (2) of section 394.4574, Florida Statutes, are amended to

29  read:

30  

31  

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 1         394.4574  Department responsibilities for a mental

 2  health resident who resides in an assisted living facility

 3  that holds a limited mental health license.--

 4         (2)  The department must ensure that:

 5         (b)  A cooperative agreement, as required in s. 429.075

 6  400.4075, is developed between the mental health care services

 7  provider that serves a mental health resident and the

 8  administrator of the assisted living facility with a limited

 9  mental health license in which the mental health resident is

10  living. Any entity that provides Medicaid prepaid health plan

11  services shall ensure the appropriate coordination of health

12  care services with an assisted living facility in cases where

13  a Medicaid recipient is both a member of the entity's prepaid

14  health plan and a resident of the assisted living facility. If

15  the entity is at risk for Medicaid targeted case management

16  and behavioral health services, the entity shall inform the

17  assisted living facility of the procedures to follow should an

18  emergent condition arise.

19         (c)  The community living support plan, as defined in

20  s. 429.02 400.402, has been prepared by a mental health

21  resident and a mental health case manager of that resident in

22  consultation with the administrator of the facility or the

23  administrator's designee. The plan must be provided to the

24  administrator of the assisted living facility with a limited

25  mental health license in which the mental health resident

26  lives. The support plan and the agreement may be in one

27  document.

28         (e)  The mental health services provider assigns a case

29  manager to each mental health resident who lives in an

30  assisted living facility with a limited mental health license.

31  The case manager is responsible for coordinating the

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 1  development of and implementation of the community living

 2  support plan defined in s. 429.02 400.402. The plan must be

 3  updated at least annually.

 4         Section 15.  Paragraph (b) of subsection (2) of section

 5  394.463, Florida Statutes, is amended to read:

 6         394.463  Involuntary examination.--

 7         (2)  INVOLUNTARY EXAMINATION.--

 8         (b)  A person shall not be removed from any program or

 9  residential placement licensed under chapter 400 or chapter

10  429 and transported to a receiving facility for involuntary

11  examination unless an ex parte order, a professional

12  certificate, or a law enforcement officer's report is first

13  prepared.  If the condition of the person is such that

14  preparation of a law enforcement officer's report is not

15  practicable before removal, the report shall be completed as

16  soon as possible after removal, but in any case before the

17  person is transported to a receiving facility.  A receiving

18  facility admitting a person for involuntary examination who is

19  not accompanied by the required ex parte order, professional

20  certificate, or law enforcement officer's report shall notify

21  the Agency for Health Care Administration of such admission by

22  certified mail no later than the next working day.  The

23  provisions of this paragraph do not apply when transportation

24  is provided by the patient's family or guardian.

25         Section 16.  Paragraph (b) of subsection (3) of section

26  400.0063, Florida Statutes, is amended to read:

27         400.0063  Establishment of Office of State Long-Term

28  Care Ombudsman; designation of ombudsman and legal advocate.--

29         (3)

30         (b)  The duties of the legal advocate shall include,

31  but not be limited to:

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 1         1.  Assisting the ombudsman in carrying out the duties

 2  of the office with respect to the abuse, neglect, or violation

 3  of rights of residents of long-term care facilities.

 4         2.  Assisting the state and local ombudsman councils in

 5  carrying out their responsibilities under this part.

 6         3.  Initiating and prosecuting legal and equitable

 7  actions to enforce the rights of long-term care facility

 8  residents as defined in this chapter or chapter 429.

 9         4.  Serving as legal counsel to the state and local

10  ombudsman councils, or individual members thereof, against

11  whom any suit or other legal action is initiated in connection

12  with the performance of the official duties of the councils or

13  an individual member.

14         Section 17.  Subsection (3) of section 400.0069,

15  Florida Statutes, is amended to read:

16         400.0069  Local long-term care ombudsman councils;

17  duties; membership.--

18         (3)  In order to carry out the duties specified in

19  subsection (2), the local ombudsman council is authorized,

20  pursuant to ss. 400.19(1) and 429.34 400.434, to enter any

21  long-term care facility without notice or first obtaining a

22  warrant, subject to the provisions of s. 400.0073(5).

23         Section 18.  Paragraphs (c) and (f) of subsection (5)

24  and subsection (6) of section 400.0073, Florida Statutes, are

25  amended to read:

26         400.0073  State and local ombudsman council

27  investigations.--

28         (5)  Any onsite administrative inspection conducted by

29  an ombudsman council shall be subject to the following:

30         (c)  Inspections shall be conducted in a manner which

31  will impose no unreasonable burden on nursing homes or

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 1  long-term care facilities, consistent with the underlying

 2  purposes of this part and chapter 429. Unnecessary duplication

 3  of efforts among council members or the councils shall be

 4  reduced to the extent possible.

 5         (f)  All inspections shall be limited to compliance

 6  with part parts II, III, and VII of this chapter, chapter 429,

 7  and 42 U.S.C. ss. 1396(a) et seq., and any rules or

 8  regulations promulgated pursuant to such laws.

 9         (6)  An inspection may not be accomplished by forcible

10  entry. Refusal of a long-term care facility to allow entry of

11  any ombudsman council member constitutes a violation of part

12  II , part III, or part VII of this chapter or chapter 429.

13         Section 19.  Subsection (4) of section 400.0077,

14  Florida Statutes, is amended to read:

15         400.0077  Confidentiality.--

16         (4)  Members of any state or local ombudsman council

17  shall not be required to testify in any court with respect to

18  matters held to be confidential under s. 429.14 400.414 except

19  as may be necessary to enforce the provisions of this act.

20         Section 20.  Subsection (1) of section 400.0239,

21  Florida Statutes, is amended to read:

22         400.0239  Quality of Long-Term Care Facility

23  Improvement Trust Fund.--

24         (1)  There is created within the Agency for Health Care

25  Administration a Quality of Long-Term Care Facility

26  Improvement Trust Fund to support activities and programs

27  directly related to improvement of the care of nursing home

28  and assisted living facility residents. The trust fund shall

29  be funded through proceeds generated pursuant to ss. 400.0238

30  and 429.298 400.4298, through funds specifically appropriated

31  by the Legislature, through gifts, endowments, and other

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 1  charitable contributions allowed under federal and state law,

 2  and through federal nursing home civil monetary penalties

 3  collected by the Centers for Medicare and Medicaid Services

 4  and returned to the state. These funds must be utilized in

 5  accordance with federal requirements.

 6         Section 21.  Subsections (1) and (4) of section

 7  400.119, Florida Statutes, are amended to read:

 8         400.119  Confidentiality of records and meetings of

 9  risk management and quality assurance committees.--

10         (1)  Records of meetings of the risk management and

11  quality assurance committee of a long-term care facility

12  licensed under this part or part III of this chapter 429, as

13  well as incident reports filed with the facility's risk

14  manager and administrator, notifications of the occurrence of

15  an adverse incident, and adverse incident reports from the

16  facility are confidential and exempt from s. 119.07(1) and s.

17  24(a), Art. I of the State Constitution. However, if the

18  Agency for Health Care Administration has a reasonable belief

19  that conduct by a staff member or employee of a facility is

20  criminal activity or grounds for disciplinary action by a

21  regulatory board, the agency may disclose such records to the

22  appropriate law enforcement agency or regulatory board.

23         (4)  The meetings of an internal risk management and

24  quality assurance committee of a long-term care facility

25  licensed under this part or part III of this chapter 429 are

26  exempt from s. 286.011 and s. 24(b), Art. I of the State

27  Constitution and are not open to the public.

28         Section 22.  Subsections (4) and (7) of section

29  400.141, Florida Statutes, are amended to read:

30  

31  

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 1         400.141  Administration and management of nursing home

 2  facilities.--Every licensed facility shall comply with all

 3  applicable standards and rules of the agency and shall:

 4         (4)  Provide for resident use of a community pharmacy

 5  as specified in s. 400.022(1)(q). Any other law to the

 6  contrary notwithstanding, a registered pharmacist licensed in

 7  Florida, that is under contract with a facility licensed under

 8  this chapter or chapter 429, shall repackage a nursing

 9  facility resident's bulk prescription medication which has

10  been packaged by another pharmacist licensed in any state in

11  the United States into a unit dose system compatible with the

12  system used by the nursing facility, if the pharmacist is

13  requested to offer such service. In order to be eligible for

14  the repackaging, a resident or the resident's spouse must

15  receive prescription medication benefits provided through a

16  former employer as part of his or her retirement benefits, a

17  qualified pension plan as specified in s. 4972 of the Internal

18  Revenue Code, a federal retirement program as specified under

19  5 C.F.R. s. 831, or a long-term care policy as defined in s.

20  627.9404(1). A pharmacist who correctly repackages and

21  relabels the medication and the nursing facility which

22  correctly administers such repackaged medication under the

23  provisions of this subsection shall not be held liable in any

24  civil or administrative action arising from the repackaging.

25  In order to be eligible for the repackaging, a nursing

26  facility resident for whom the medication is to be repackaged

27  shall sign an informed consent form provided by the facility

28  which includes an explanation of the repackaging process and

29  which notifies the resident of the immunities from liability

30  provided herein. A pharmacist who repackages and relabels

31  prescription medications, as authorized under this subsection,

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 1  may charge a reasonable fee for costs resulting from the

 2  implementation of this provision.

 3         (7)  If the facility has a standard license or is a

 4  Gold Seal facility, exceeds the minimum required hours of

 5  licensed nursing and certified nursing assistant direct care

 6  per resident per day, and is part of a continuing care

 7  facility licensed under chapter 651 or a retirement community

 8  that offers other services pursuant to part III, part IV, or

 9  part V of this chapter or chapter 429 on a single campus, be

10  allowed to share programming and staff. At the time of

11  inspection and in the semiannual report required pursuant to

12  subsection (15), a continuing care facility or retirement

13  community that uses this option must demonstrate through

14  staffing records that minimum staffing requirements for the

15  facility were met. Licensed nurses and certified nursing

16  assistants who work in the nursing home facility may be used

17  to provide services elsewhere on campus if the facility

18  exceeds the minimum number of direct care hours required per

19  resident per day and the total number of residents receiving

20  direct care services from a licensed nurse or a certified

21  nursing assistant does not cause the facility to violate the

22  staffing ratios required under s. 400.23(3)(a). Compliance

23  with the minimum staffing ratios shall be based on total

24  number of residents receiving direct care services, regardless

25  of where they reside on campus. If the facility receives a

26  conditional license, it may not share staff until the

27  conditional license status ends. This subsection does not

28  restrict the agency's authority under federal or state law to

29  require additional staff if a facility is cited for

30  deficiencies in care which are caused by an insufficient

31  number of certified nursing assistants or licensed nurses. The

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 1  agency may adopt rules for the documentation necessary to

 2  determine compliance with this provision.

 3  

 4  Facilities that have been awarded a Gold Seal under the

 5  program established in s. 400.235 may develop a plan to

 6  provide certified nursing assistant training as prescribed by

 7  federal regulations and state rules and may apply to the

 8  agency for approval of their program.

 9         Section 23.  Subsection (1) of section 400.142, Florida

10  Statutes, is amended to read:

11         400.142  Emergency medication kits; orders not to

12  resuscitate.--

13         (1)  Other provisions of this chapter or of chapter

14  429, chapter 465, chapter 499, or chapter 893 to the contrary

15  notwithstanding, each nursing home operating pursuant to a

16  license issued by the agency may maintain an emergency

17  medication kit for the purpose of storing medicinal drugs to

18  be administered under emergency conditions to residents

19  residing in such facility.

20         Section 24.  Paragraph (a) of subsection (2) of section

21  400.191, Florida Statutes, is amended to read:

22         400.191  Availability, distribution, and posting of

23  reports and records.--

24         (2)  The agency shall provide additional information in

25  consumer-friendly printed and electronic formats to assist

26  consumers and their families in comparing and evaluating

27  nursing home facilities.

28         (a)  The agency shall provide an Internet site which

29  shall include at least the following information either

30  directly or indirectly through a link to another established

31  site or sites of the agency's choosing:

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 1         1.  A list by name and address of all nursing home

 2  facilities in this state.

 3         2.  Whether such nursing home facilities are

 4  proprietary or nonproprietary.

 5         3.  The current owner of the facility's license and the

 6  year that that entity became the owner of the license.

 7         4.  The name of the owner or owners of each facility

 8  and whether the facility is affiliated with a company or other

 9  organization owning or managing more than one nursing facility

10  in this state.

11         5.  The total number of beds in each facility.

12         6.  The number of private and semiprivate rooms in each

13  facility.

14         7.  The religious affiliation, if any, of each

15  facility.

16         8.  The languages spoken by the administrator and staff

17  of each facility.

18         9.  Whether or not each facility accepts Medicare or

19  Medicaid recipients or insurance, health maintenance

20  organization, Veterans Administration, CHAMPUS program, or

21  workers' compensation coverage.

22         10.  Recreational and other programs available at each

23  facility.

24         11.  Special care units or programs offered at each

25  facility.

26         12.  Whether the facility is a part of a retirement

27  community that offers other services pursuant to part III,

28  part IV, or part V of this chapter or chapter 429.

29         13.  Survey and deficiency information contained on the

30  Online Survey Certification and Reporting (OSCAR) system of

31  the federal Health Care Financing Administration, including

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 1  annual survey, revisit, and complaint survey information, for

 2  each facility for the past 45 months.  For noncertified

 3  nursing homes, state survey and deficiency information,

 4  including annual survey, revisit, and complaint survey

 5  information for the past 45 months shall be provided.

 6         14.  A summary of the Online Survey Certification and

 7  Reporting (OSCAR) data for each facility over the past 45

 8  months. Such summary may include a score, rating, or

 9  comparison ranking with respect to other facilities based on

10  the number of citations received by the facility of annual,

11  revisit, and complaint surveys; the severity and scope of the

12  citations; and the number of annual recertification surveys

13  the facility has had during the past 45 months. The score,

14  rating, or comparison ranking may be presented in either

15  numeric or symbolic form for the intended consumer audience.

16         Section 25.  Paragraph (b) of subsection (2) of section

17  400.215, Florida Statutes, is amended to read:

18         400.215  Personnel screening requirement.--

19         (2)  Employers and employees shall comply with the

20  requirements of s. 435.05.

21         (b)  Employees qualified under the provisions of

22  paragraph (a) who have not maintained continuous residency

23  within the state for the 5 years immediately preceding the

24  date of request for background screening must complete level 2

25  screening, as provided in chapter 435. Such employees may work

26  in a conditional status up to 180 days pending the receipt of

27  written findings evidencing the completion of level 2

28  screening. Level 2 screening shall not be required of

29  employees or prospective employees who attest in writing under

30  penalty of perjury that they meet the residency requirement.

31  Completion of level 2 screening shall require the employee or

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 1  prospective employee to furnish to the nursing facility a full

 2  set of fingerprints to enable a criminal background

 3  investigation to be conducted. The nursing facility shall

 4  submit the completed fingerprint card to the agency. The

 5  agency shall establish a record of the request in the database

 6  provided for in paragraph (c) and forward the request to the

 7  Department of Law Enforcement, which is authorized to submit

 8  the fingerprints to the Federal Bureau of Investigation for a

 9  national criminal history records check. The results of the

10  national criminal history records check shall be returned to

11  the agency, which shall maintain the results in the database

12  provided for in paragraph (c). The agency shall notify the

13  administrator of the requesting nursing facility or the

14  administrator of any other facility licensed under chapter

15  393, chapter 394, chapter 395, chapter 397, chapter 429, or

16  this chapter, as requested by such facility, as to whether or

17  not the employee has qualified under level 1 or level 2

18  screening. An employee or prospective employee who has

19  qualified under level 2 screening and has maintained such

20  continuous residency within the state shall not be required to

21  complete a subsequent level 2 screening as a condition of

22  employment at another facility.

23         Section 26.  Paragraph (f) of subsection (2) of section

24  400.23, Florida Statutes, is amended to read:

25         400.23  Rules; evaluation and deficiencies; licensure

26  status.--

27         (2)  Pursuant to the intention of the Legislature, the

28  agency, in consultation with the Department of Health and the

29  Department of Elderly Affairs, shall adopt and enforce rules

30  to implement this part, which shall include reasonable and

31  fair criteria in relation to:

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 1         (f)  The care, treatment, and maintenance of residents

 2  and measurement of the quality and adequacy thereof, based on

 3  rules developed under this chapter or chapter 429 and the

 4  Omnibus Budget Reconciliation Act of 1987 (Pub. L. No.

 5  100-203) (December 22, 1987), Title IV (Medicare, Medicaid,

 6  and Other Health-Related Programs), Subtitle C (Nursing Home

 7  Reform), as amended.

 8         Section 27.  Section 400.232, Florida Statutes, is

 9  amended to read:

10         400.232  Review and approval of plans; fees and

11  costs.--The design, construction, erection, alteration,

12  modification, repair, and demolition of all public and private

13  health care facilities are governed by the Florida Building

14  Code and the Florida Fire Prevention Code under ss. 553.73 and

15  633.022. In addition to the requirements of ss. 553.79 and

16  553.80, the agency shall review the facility plans and survey

17  the construction of facilities licensed under this chapter or

18  chapter 429.

19         (1)  The agency shall approve or disapprove the plans

20  and specifications within 60 days after receipt of the final

21  plans and specifications.  The agency may be granted one

22  15-day extension for the review period, if the director of the

23  agency so approves. If the agency fails to act within the

24  specified time, it shall be deemed to have approved the plans

25  and specifications. When the agency disapproves plans and

26  specifications, it shall set forth in writing the reasons for

27  disapproval. Conferences and consultations may be provided as

28  necessary.

29         (2)  The agency is authorized to charge an initial fee

30  of $2,000 for review of plans and construction on all

31  projects, no part of which is refundable.  The agency may also

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 1  collect a fee, not to exceed 1 percent of the estimated

 2  construction cost or the actual cost of review, whichever is

 3  less, for the portion of the review which encompasses initial

 4  review through the initial revised construction document

 5  review.  The agency is further authorized to collect its

 6  actual costs on all subsequent portions of the review and

 7  construction inspections.  Initial fee payment shall accompany

 8  the initial submission of plans and specifications.  Any

 9  subsequent payment that is due is payable upon receipt of the

10  invoice from the agency. Notwithstanding any other provisions

11  of law to the contrary, all money received by the agency

12  pursuant to the provisions of this section shall be deemed to

13  be trust funds, to be held and applied solely for the

14  operations required under this section.

15         Section 28.  Section 400.401, Florida Statutes, is

16  renumbered as section 429.01, Florida Statutes, and subsection

17  (3) is amended to read:

18         429.01 400.401  Popular name Short title; purpose.--

19         (3)  The principle that a license issued under this

20  chapter part is a public trust and a privilege and is not an

21  entitlement should guide the finder of fact or trier of law at

22  any administrative proceeding or in a court action initiated

23  by the Agency for Health Care Administration to enforce this

24  chapter part.

25         Section 29.  Section 400.402, Florida Statutes, is

26  renumbered as section 429.02, Florida Statutes, and amended to

27  read:

28         429.02 400.402  Definitions.--When used in this chapter

29  part, the term:

30  

31  

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 1         (1)  "Activities of daily living" means functions and

 2  tasks for self-care, including ambulation, bathing, dressing,

 3  eating, grooming, and toileting, and other similar tasks.

 4         (2)  "Administrator" means an individual at least 21

 5  years of age who is responsible for the operation and

 6  maintenance of an assisted living facility.

 7         (3)  "Agency" means the Agency for Health Care

 8  Administration.

 9         (4)  "Aging in place" or "age in place" means the

10  process of providing increased or adjusted services to a

11  person to compensate for the physical or mental decline that

12  may occur with the aging process, in order to maximize the

13  person's dignity and independence and permit them to remain in

14  a familiar, noninstitutional, residential environment for as

15  long as possible. Such services may be provided by facility

16  staff, volunteers, family, or friends, or through contractual

17  arrangements with a third party.

18         (5)  "Applicant" means an individual owner,

19  corporation, partnership, firm, association, or governmental

20  entity that applies for a license.

21         (6)  "Assisted living facility" means any building or

22  buildings, section or distinct part of a building, private

23  home, boarding home, home for the aged, or other residential

24  facility, whether operated for profit or not, which undertakes

25  through its ownership or management to provide housing, meals,

26  and one or more personal services for a period exceeding 24

27  hours to one or more adults who are not relatives of the owner

28  or administrator.

29         (7)  "Chemical restraint" means a pharmacologic drug

30  that physically limits, restricts, or deprives an individual

31  of movement or mobility, and is used for discipline or

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 1  convenience and not required for the treatment of medical

 2  symptoms.

 3         (8)  "Community living support plan" means a written

 4  document prepared by a mental health resident and the

 5  resident's mental health case manager in consultation with the

 6  administrator of an assisted living facility with a limited

 7  mental health license or the administrator's designee. A copy

 8  must be provided to the administrator. The plan must include

 9  information about the supports, services, and special needs of

10  the resident which enable the resident to live in the assisted

11  living facility and a method by which facility staff can

12  recognize and respond to the signs and symptoms particular to

13  that resident which indicate the need for professional

14  services.

15         (9)  "Cooperative agreement" means a written statement

16  of understanding between a mental health care provider and the

17  administrator of the assisted living facility with a limited

18  mental health license in which a mental health resident is

19  living. The agreement must specify directions for accessing

20  emergency and after-hours care for the mental health resident.

21  A single cooperative agreement may service all mental health

22  residents who are clients of the same mental health care

23  provider.

24         (10)  "Department" means the Department of Elderly

25  Affairs.

26         (11)  "Emergency" means a situation, physical

27  condition, or method of operation which presents imminent

28  danger of death or serious physical or mental harm to facility

29  residents.

30         (12)  "Extended congregate care" means acts beyond

31  those authorized in subsection (17) that may be performed

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 1  pursuant to part I of chapter 464 by persons licensed

 2  thereunder while carrying out their professional duties, and

 3  other supportive services which may be specified by rule.  The

 4  purpose of such services is to enable residents to age in

 5  place in a residential environment despite mental or physical

 6  limitations that might otherwise disqualify them from

 7  residency in a facility licensed under this chapter part.

 8         (13)  "Guardian" means a person to whom the law has

 9  entrusted the custody and control of the person or property,

10  or both, of a person who has been legally adjudged

11  incapacitated.

12         (14)  "Limited nursing services" means acts that may be

13  performed pursuant to part I of chapter 464 by persons

14  licensed thereunder while carrying out their professional

15  duties but limited to those acts which the department

16  specifies by rule.  Acts which may be specified by rule as

17  allowable limited nursing services shall be for persons who

18  meet the admission criteria established by the department for

19  assisted living facilities and shall not be complex enough to

20  require 24-hour nursing supervision and may include such

21  services as the application and care of routine dressings, and

22  care of casts, braces, and splints.

23         (15)  "Managed risk" means the process by which the

24  facility staff discuss the service plan and the needs of the

25  resident with the resident and, if applicable, the resident's

26  representative or designee or the resident's surrogate,

27  guardian, or attorney in fact, in such a way that the

28  consequences of a decision, including any inherent risk, are

29  explained to all parties and reviewed periodically in

30  conjunction with the service plan, taking into account changes

31  

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 1  in the resident's status and the ability of the facility to

 2  respond accordingly.

 3         (16)  "Mental health resident" means an individual who

 4  receives social security disability income due to a mental

 5  disorder as determined by the Social Security Administration

 6  or receives supplemental security income due to a mental

 7  disorder as determined by the Social Security Administration

 8  and receives optional state supplementation.

 9         (17)  "Personal services" means direct physical

10  assistance with or supervision of the activities of daily

11  living and the self-administration of medication and other

12  similar services which the department may define by

13  rule.  "Personal services" shall not be construed to mean the

14  provision of medical, nursing, dental, or mental health

15  services.

16         (18)  "Physical restraint" means a device which

17  physically limits, restricts, or deprives an individual of

18  movement or mobility, including, but not limited to, a

19  half-bed rail, a full-bed rail, a geriatric chair, and a posey

20  restraint. The term "physical restraint" shall also include

21  any device which was not specifically manufactured as a

22  restraint but which has been altered, arranged, or otherwise

23  used for this purpose. The term shall not include bandage

24  material used for the purpose of binding a wound or injury.

25         (19)  "Relative" means an individual who is the father,

26  mother, stepfather, stepmother, son, daughter, brother,

27  sister, grandmother, grandfather, great-grandmother,

28  great-grandfather, grandson, granddaughter, uncle, aunt, first

29  cousin, nephew, niece, husband, wife, father-in-law,

30  mother-in-law, son-in-law, daughter-in-law, brother-in-law,

31  

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 1  sister-in-law, stepson, stepdaughter, stepbrother, stepsister,

 2  half brother, or half sister of an owner or administrator.

 3         (20)  "Resident" means a person 18 years of age or

 4  older, residing in and receiving care from a facility.

 5         (21)  "Resident's representative or designee" means a

 6  person other than the owner, or an agent or employee of the

 7  facility, designated in writing by the resident, if legally

 8  competent, to receive notice of changes in the contract

 9  executed pursuant to s. 429.24 400.424; to receive notice of

10  and to participate in meetings between the resident and the

11  facility owner, administrator, or staff concerning the rights

12  of the resident; to assist the resident in contacting the

13  ombudsman council if the resident has a complaint against the

14  facility; or to bring legal action on behalf of the resident

15  pursuant to s. 400.429.

16         (22)  "Service plan" means a written plan, developed

17  and agreed upon by the resident and, if applicable, the

18  resident's representative or designee or the resident's

19  surrogate, guardian, or attorney in fact, if any, and the

20  administrator or designee representing the facility, which

21  addresses the unique physical and psychosocial needs,

22  abilities, and personal preferences of each resident receiving

23  extended congregate care services. The plan shall include a

24  brief written description, in easily understood language, of

25  what services shall be provided, who shall provide the

26  services, when the services shall be rendered, and the

27  purposes and benefits of the services.

28         (23)  "Shared responsibility" means exploring the

29  options available to a resident within a facility and the

30  risks involved with each option when making decisions

31  pertaining to the resident's abilities, preferences, and

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 1  service needs, thereby enabling the resident and, if

 2  applicable, the resident's representative or designee, or the

 3  resident's surrogate, guardian, or attorney in fact, and the

 4  facility to develop a service plan which best meets the

 5  resident's needs and seeks to improve the resident's quality

 6  of life.

 7         (24)  "Supervision" means reminding residents to engage

 8  in activities of daily living and the self-administration of

 9  medication, and, when necessary, observing or providing verbal

10  cuing to residents while they perform these activities.

11         (25)  "Supplemental security income," Title XVI of the

12  Social Security Act, means a program through which the Federal

13  Government guarantees a minimum monthly income to every person

14  who is age 65 or older, or disabled, or blind and meets the

15  income and asset requirements.

16         (26)  "Supportive services" means services designed to

17  encourage and assist aged persons or adults with disabilities

18  to remain in the least restrictive living environment and to

19  maintain their independence as long as possible.

20         (27)  "Twenty-four-hour nursing supervision" means

21  services that are ordered by a physician for a resident whose

22  condition requires the supervision of a physician and

23  continued monitoring of vital signs and physical status.  Such

24  services shall be: medically complex enough to require

25  constant supervision, assessment, planning, or intervention by

26  a nurse; required to be performed by or under the direct

27  supervision of licensed nursing personnel or other

28  professional personnel for safe and effective performance;

29  required on a daily basis; and consistent with the nature and

30  severity of the resident's condition or the disease state or

31  stage.

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 1         Section 30.  Section 400.404, Florida Statutes, is

 2  renumbered as section 429.04, Florida Statutes, and amended to

 3  read:

 4         429.04 400.404  Facilities to be licensed;

 5  exemptions.--

 6         (1)  For the administration of this chapter part,

 7  facilities to be licensed by the agency shall include all

 8  assisted living facilities as defined in this chapter part.

 9         (2)  The following are exempt from licensure under this

10  chapter part:

11         (a)  Any facility, institution, or other place operated

12  by the Federal Government or any agency of the Federal

13  Government.

14         (b)  Any facility or part of a facility licensed under

15  chapter 393 or chapter 394.

16         (c)  Any facility licensed as an adult family-care home

17  under part VII of chapter 400.

18         (d)  Any person who provides housing, meals, and one or

19  more personal services on a 24-hour basis in the person's own

20  home to not more than two adults who do not receive optional

21  state supplementation. The person who provides the housing,

22  meals, and personal services must own or rent the home and

23  reside therein.

24         (e)  Any home or facility approved by the United States

25  Department of Veterans Affairs as a residential care home

26  wherein care is provided exclusively to three or fewer

27  veterans.

28         (f)  Any facility that has been incorporated in this

29  state for 50 years or more on or before July 1, 1983, and the

30  board of directors of which is nominated or elected by the

31  residents, until the facility is sold or its ownership is

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 1  transferred; or any facility, with improvements or additions

 2  thereto, which has existed and operated continuously in this

 3  state for 60 years or more on or before July 1, 1989, is

 4  directly or indirectly owned and operated by a nationally

 5  recognized fraternal organization, is not open to the public,

 6  and accepts only its own members and their spouses as

 7  residents.

 8         (g)  Any facility certified under chapter 651, or a

 9  retirement community, may provide services authorized under

10  this chapter part or part IV of this chapter 400 to its

11  residents who live in single-family homes, duplexes,

12  quadruplexes, or apartments located on the campus without

13  obtaining a license to operate an assisted living facility if

14  residential units within such buildings are used by residents

15  who do not require staff supervision for that portion of the

16  day when personal services are not being delivered and the

17  owner obtains a home health license to provide such

18  services.  However, any building or distinct part of a

19  building on the campus that is designated for persons who

20  receive personal services and require supervision beyond that

21  which is available while such services are being rendered must

22  be licensed in accordance with this chapter part. If a

23  facility provides personal services to residents who do not

24  otherwise require supervision and the owner is not licensed as

25  a home health agency, the buildings or distinct parts of

26  buildings where such services are rendered must be licensed

27  under this chapter part. A resident of a facility that obtains

28  a home health license may contract with a home health agency

29  of his or her choice, provided that the home health agency

30  provides liability insurance and workers' compensation

31  coverage for its employees. Facilities covered by this

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 1  exemption may establish policies that give residents the

 2  option of contracting for services and care beyond that which

 3  is provided by the facility to enable them to age in

 4  place.  For purposes of this section, a retirement community

 5  consists of a facility licensed under this chapter part or

 6  under part II of chapter 400, and apartments designed for

 7  independent living located on the same campus.

 8         (h)  Any residential unit for independent living which

 9  is located within a facility certified under chapter 651, or

10  any residential unit which is colocated with a nursing home

11  licensed under part II of chapter 400 or colocated with a

12  facility licensed under this chapter part in which services

13  are provided through an outpatient clinic or a nursing home on

14  an outpatient basis.

15         Section 31.  Section 400.407, Florida Statutes, is

16  renumbered as section 429.07, Florida Statutes, and paragraphs

17  (a), (b), and (c) of subsection (3), paragraphs (b) and (c) of

18  subsection (4), and subsection (5) are amended to read:

19         429.07 400.407  License required; fee, display.--

20         (3)  Any license granted by the agency must state the

21  maximum resident capacity of the facility, the type of care

22  for which the license is granted, the date the license is

23  issued, the expiration date of the license, and any other

24  information deemed necessary by the agency. Licenses shall be

25  issued for one or more of the following categories of care:

26  standard, extended congregate care, limited nursing services,

27  or limited mental health.

28         (a)  A standard license shall be issued to facilities

29  providing one or more of the personal services identified in

30  s. 429.02 400.402. Such facilities may also employ or contract

31  with a person licensed under part I of chapter 464 to

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 1  administer medications and perform other tasks as specified in

 2  s. 429.255 400.4255.

 3         (b)  An extended congregate care license shall be

 4  issued to facilities providing, directly or through contract,

 5  services beyond those authorized in paragraph (a), including

 6  acts performed pursuant to part I of chapter 464 by persons

 7  licensed thereunder, and supportive services defined by rule

 8  to persons who otherwise would be disqualified from continued

 9  residence in a facility licensed under this chapter part.

10         1.  In order for extended congregate care services to

11  be provided in a facility licensed under this chapter part,

12  the agency must first determine that all requirements

13  established in law and rule are met and must specifically

14  designate, on the facility's license, that such services may

15  be provided and whether the designation applies to all or part

16  of a facility.  Such designation may be made at the time of

17  initial licensure or relicensure, or upon request in writing

18  by a licensee under this chapter part. Notification of

19  approval or denial of such request shall be made within 90

20  days after receipt of such request and all necessary

21  documentation. Existing facilities qualifying to provide

22  extended congregate care services must have maintained a

23  standard license and may not have been subject to

24  administrative sanctions during the previous 2 years, or since

25  initial licensure if the facility has been licensed for less

26  than 2 years, for any of the following reasons:

27         a.  A class I or class II violation;

28         b.  Three or more repeat or recurring class III

29  violations of identical or similar resident care standards as

30  specified in rule from which a pattern of noncompliance is

31  found by the agency;

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 1         c.  Three or more class III violations that were not

 2  corrected in accordance with the corrective action plan

 3  approved by the agency;

 4         d.  Violation of resident care standards resulting in a

 5  requirement to employ the services of a consultant pharmacist

 6  or consultant dietitian;

 7         e.  Denial, suspension, or revocation of a license for

 8  another facility under this chapter part in which the

 9  applicant for an extended congregate care license has at least

10  25 percent ownership interest; or

11         f.  Imposition of a moratorium on admissions or

12  initiation of injunctive proceedings.

13         2.  Facilities that are licensed to provide extended

14  congregate care services shall maintain a written progress

15  report on each person who receives such services, which report

16  describes the type, amount, duration, scope, and outcome of

17  services that are rendered and the general status of the

18  resident's health.  A registered nurse, or appropriate

19  designee, representing the agency shall visit such facilities

20  at least quarterly to monitor residents who are receiving

21  extended congregate care services and to determine if the

22  facility is in compliance with this chapter part and with

23  rules that relate to extended congregate care. One of these

24  visits may be in conjunction with the regular survey.  The

25  monitoring visits may be provided through contractual

26  arrangements with appropriate community agencies.  A

27  registered nurse shall serve as part of the team that inspects

28  such facility. The agency may waive one of the required yearly

29  monitoring visits for a facility that has been licensed for at

30  least 24 months to provide extended congregate care services,

31  if, during the inspection, the registered nurse determines

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 1  that extended congregate care services are being provided

 2  appropriately, and if the facility has no class I or class II

 3  violations and no uncorrected class III violations. Before

 4  such decision is made, the agency shall consult with the

 5  long-term care ombudsman council for the area in which the

 6  facility is located to determine if any complaints have been

 7  made and substantiated about the quality of services or

 8  care.  The agency may not waive one of the required yearly

 9  monitoring visits if complaints have been made and

10  substantiated.

11         3.  Facilities that are licensed to provide extended

12  congregate care services shall:

13         a.  Demonstrate the capability to meet unanticipated

14  resident service needs.

15         b.  Offer a physical environment that promotes a

16  homelike setting, provides for resident privacy, promotes

17  resident independence, and allows sufficient congregate space

18  as defined by rule.

19         c.  Have sufficient staff available, taking into

20  account the physical plant and firesafety features of the

21  building, to assist with the evacuation of residents in an

22  emergency, as necessary.

23         d.  Adopt and follow policies and procedures that

24  maximize resident independence, dignity, choice, and

25  decisionmaking to permit residents to age in place to the

26  extent possible, so that moves due to changes in functional

27  status are minimized or avoided.

28         e.  Allow residents or, if applicable, a resident's

29  representative, designee, surrogate, guardian, or attorney in

30  fact to make a variety of personal choices, participate in

31  

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 1  developing service plans, and share responsibility in

 2  decisionmaking.

 3         f.  Implement the concept of managed risk.

 4         g.  Provide, either directly or through contract, the

 5  services of a person licensed pursuant to part I of chapter

 6  464.

 7         h.  In addition to the training mandated in s. 429.52

 8  400.452, provide specialized training as defined by rule for

 9  facility staff.

10         4.  Facilities licensed to provide extended congregate

11  care services are exempt from the criteria for continued

12  residency as set forth in rules adopted under s. 429.41

13  400.441.  Facilities so licensed shall adopt their own

14  requirements within guidelines for continued residency set

15  forth by the department in rule. However, such facilities may

16  not serve residents who require 24-hour nursing supervision.

17  Facilities licensed to provide extended congregate care

18  services shall provide each resident with a written copy of

19  facility policies governing admission and retention.

20         5.  The primary purpose of extended congregate care

21  services is to allow residents, as they become more impaired,

22  the option of remaining in a familiar setting from which they

23  would otherwise be disqualified for continued residency.  A

24  facility licensed to provide extended congregate care services

25  may also admit an individual who exceeds the admission

26  criteria for a facility with a standard license, if the

27  individual is determined appropriate for admission to the

28  extended congregate care facility.

29         6.  Before admission of an individual to a facility

30  licensed to provide extended congregate care services, the

31  individual must undergo a medical examination as provided in

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 1  s. 429.26 400.426(4) and the facility must develop a

 2  preliminary service plan for the individual.

 3         7.  When a facility can no longer provide or arrange

 4  for services in accordance with the resident's service plan

 5  and needs and the facility's policy, the facility shall make

 6  arrangements for relocating the person in accordance with s.

 7  429.28 400.428(1)(k).

 8         8.  Failure to provide extended congregate care

 9  services may result in denial of extended congregate care

10  license renewal.

11         9.  No later than January 1 of each year, the

12  department, in consultation with the agency, shall prepare and

13  submit to the Governor, the President of the Senate, the

14  Speaker of the House of Representatives, and the chairs of

15  appropriate legislative committees, a report on the status of,

16  and recommendations related to, extended congregate care

17  services. The status report must include, but need not be

18  limited to, the following information:

19         a.  A description of the facilities licensed to provide

20  such services, including total number of beds licensed under

21  this chapter part.

22         b.  The number and characteristics of residents

23  receiving such services.

24         c.  The types of services rendered that could not be

25  provided through a standard license.

26         d.  An analysis of deficiencies cited during licensure

27  inspections.

28         e.  The number of residents who required extended

29  congregate care services at admission and the source of

30  admission.

31  

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 1         f.  Recommendations for statutory or regulatory

 2  changes.

 3         g.  The availability of extended congregate care to

 4  state clients residing in facilities licensed under this

 5  chapter part and in need of additional services, and

 6  recommendations for appropriations to subsidize extended

 7  congregate care services for such persons.

 8         h.  Such other information as the department considers

 9  appropriate.

10         (c)  A limited nursing services license shall be issued

11  to a facility that provides services beyond those authorized

12  in paragraph (a) and as specified in this paragraph.

13         1.  In order for limited nursing services to be

14  provided in a facility licensed under this chapter part, the

15  agency must first determine that all requirements established

16  in law and rule are met and must specifically designate, on

17  the facility's license, that such services may be provided.

18  Such designation may be made at the time of initial licensure

19  or relicensure, or upon request in writing by a licensee under

20  this chapter part. Notification of approval or denial of such

21  request shall be made within 90 days after receipt of such

22  request and all necessary documentation. Existing facilities

23  qualifying to provide limited nursing services shall have

24  maintained a standard license and may not have been subject to

25  administrative sanctions that affect the health, safety, and

26  welfare of residents for the previous 2 years or since initial

27  licensure if the facility has been licensed for less than 2

28  years.

29         2.  Facilities that are licensed to provide limited

30  nursing services shall maintain a written progress report on

31  each person who receives such nursing services, which report

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 1  describes the type, amount, duration, scope, and outcome of

 2  services that are rendered and the general status of the

 3  resident's health.  A registered nurse representing the agency

 4  shall visit such facilities at least twice a year to monitor

 5  residents who are receiving limited nursing services and to

 6  determine if the facility is in compliance with applicable

 7  provisions of this chapter part and with related rules. The

 8  monitoring visits may be provided through contractual

 9  arrangements with appropriate community agencies.  A

10  registered nurse shall also serve as part of the team that

11  inspects such facility.

12         3.  A person who receives limited nursing services

13  under this chapter part must meet the admission criteria

14  established by the agency for assisted living

15  facilities.  When a resident no longer meets the admission

16  criteria for a facility licensed under this chapter part,

17  arrangements for relocating the person shall be made in

18  accordance with s. 429.28 400.428(1)(k), unless the facility

19  is licensed to provide extended congregate care services.

20         (4)

21         (b)  In addition to the total fee assessed under

22  paragraph (a), the agency shall require facilities that are

23  licensed to provide extended congregate care services under

24  this chapter part to pay an additional fee per licensed

25  facility.  The amount of the biennial fee shall be $400 per

26  license, with an additional fee of $10 per resident based on

27  the total licensed resident capacity of the facility. No part

28  of this fee shall be returned to the facility. The agency may

29  adjust the per bed license fee and the annual license fee once

30  each year by not more than the average rate of inflation for

31  the 12 months immediately preceding the increase.

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 1         (c)  In addition to the total fee assessed under

 2  paragraph (a), the agency shall require facilities that are

 3  licensed to provide limited nursing services under this

 4  chapter part to pay an additional fee per licensed

 5  facility.  The amount of the biennial fee shall be $250 per

 6  license, with an additional fee of $10 per resident based on

 7  the total licensed resident capacity of the facility.  No part

 8  of this fee shall be returned to the facility.  The agency may

 9  adjust the per bed license fee and the biennial license fee

10  once each year by not more than the average rate of inflation

11  for the 12 months immediately preceding the increase.

12         (5)  Counties or municipalities applying for licenses

13  under this chapter part are exempt from the payment of license

14  fees.

15         Section 32.  Section 400.408, Florida Statutes, is

16  renumbered as section 429.08, Florida Statutes, and paragraphs

17  (a), (d), (e), (f), and (g) of subsection (1) and paragraph

18  (f) of subsection (2) are amended to read:

19         429.08 400.408  Unlicensed facilities; referral of

20  person for residency to unlicensed facility; penalties;

21  verification of licensure status.--

22         (1)(a)  It is unlawful to own, operate, or maintain an

23  assisted living facility without obtaining a license under

24  this chapter part.

25         (d)  Any person who owns, operates, or maintains an

26  unlicensed assisted living facility due to a change in this

27  chapter part or a modification in department rule within 6

28  months after the effective date of such change and who, within

29  10 working days after receiving notification from the agency,

30  fails to cease operation or apply for a license under this

31  chapter part commits a felony of the third degree, punishable

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 1  as provided in s. 775.082, s. 775.083, or s. 775.084. Each day

 2  of continued operation is a separate offense.

 3         (e)  Any facility that fails to cease operation after

 4  agency notification may be fined for each day of noncompliance

 5  pursuant to s. 429.19 400.419.

 6         (f)  When a licensee has an interest in more than one

 7  assisted living facility, and fails to license any one of

 8  these facilities, the agency may revoke the license, impose a

 9  moratorium, or impose a fine pursuant to s. 429.19 400.419, on

10  any or all of the licensed facilities until such time as the

11  unlicensed facility is licensed or ceases operation.

12         (g)  If the agency determines that an owner is

13  operating or maintaining an assisted living facility without

14  obtaining a license and determines that a condition exists in

15  the facility that poses a threat to the health, safety, or

16  welfare of a resident of the facility, the owner is subject to

17  the same actions and fines imposed against a licensed facility

18  as specified in ss. 429.14 and 429.19 400.414 and 400.419.

19         (2)  It is unlawful to knowingly refer a person for

20  residency to an unlicensed assisted living facility; to an

21  assisted living facility the license of which is under denial

22  or has been suspended or revoked; or to an assisted living

23  facility that has a moratorium on admissions.  Any person who

24  violates this subsection commits a noncriminal violation,

25  punishable by a fine not exceeding $500 as provided in s.

26  775.083.

27         (f)  At least annually, the agency shall notify, in

28  appropriate trade publications, physicians licensed under

29  chapter 458 or chapter 459, hospitals licensed under chapter

30  395, nursing home facilities licensed under part II of this

31  chapter 400, and employees of the agency or the department, or

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 1  the Department of Children and Family Services, who are

 2  responsible for referring persons for residency, that it is

 3  unlawful to knowingly refer a person for residency to an

 4  unlicensed assisted living facility and shall notify them of

 5  the penalty for violating such prohibition. The department and

 6  the Department of Children and Family Services shall, in turn,

 7  notify service providers under contract to the respective

 8  departments who have responsibility for resident referrals to

 9  facilities. Further, the notice must direct each noticed

10  facility and individual to contact the appropriate agency

11  office in order to verify the licensure status of any facility

12  prior to referring any person for residency. Each notice must

13  include the name, telephone number, and mailing address of the

14  appropriate office to contact.

15         Section 33.  Section 400.411, Florida Statutes, is

16  renumbered as section 429.11, Florida Statutes, and paragraph

17  (c) of subsection (3) and subsections (4), (11), and (13) are

18  amended to read:

19         429.11 400.411  Initial application for license;

20  provisional license.--

21         (3)  The application must be signed by the applicant

22  under oath and must contain the following:

23         (c)  The name and address of any long-term care

24  facility with which the applicant, administrator, or financial

25  officer has been affiliated through ownership or employment

26  within 5 years of the date of this license application; and a

27  signed affidavit disclosing any financial or ownership

28  interest that the applicant, or any person listed in paragraph

29  (a), holds or has held within the last 5 years in any facility

30  licensed under this chapter part, or in any other entity

31  licensed by this state or another state to provide health or

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 1  residential care, which facility or entity closed or ceased to

 2  operate as a result of financial problems, or has had a

 3  receiver appointed or a license denied, suspended or revoked,

 4  or was subject to a moratorium on admissions, or has had an

 5  injunctive proceeding initiated against it.

 6         (4)  The applicant shall furnish satisfactory proof of

 7  financial ability to operate and conduct the facility in

 8  accordance with the requirements of this chapter part. A

 9  certificate of authority, pursuant to chapter 651, may be

10  provided as proof of financial ability.

11         (11)  The applicant must furnish proof of compliance

12  with level 2 background screening as required under s. 429.174

13  400.4174.

14         (13)  A county or municipality may not issue an

15  occupational license that is being obtained for the purpose of

16  operating a facility regulated under this chapter part without

17  first ascertaining that the applicant has been licensed to

18  operate such facility at the specified location or locations

19  by the agency. The agency shall furnish to local agencies

20  responsible for issuing occupational licenses sufficient

21  instruction for making such determinations.

22         Section 34.  Section 400.412, Florida Statutes, is

23  renumbered as section 429.12, Florida Statutes, and subsection

24  (1) is amended to read:

25         429.12 400.412  Sale or transfer of ownership of a

26  facility.--It is the intent of the Legislature to protect the

27  rights of the residents of an assisted living facility when

28  the facility is sold or the ownership thereof is transferred.

29  Therefore, whenever a facility is sold or the ownership

30  thereof is transferred, including leasing:

31  

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 1         (1)  The transferee shall make application to the

 2  agency for a new license at least 60 days before the date of

 3  transfer of ownership. The application must comply with the

 4  provisions of s. 429.11 400.411.

 5         Section 35.  Section 400.414, Florida Statutes, is

 6  renumbered as section 429.14, Florida Statutes, and

 7  subsections (1), (3), and (5) are amended to read:

 8         429.14 400.414  Denial, revocation, or suspension of

 9  license; imposition of administrative fine; grounds.--

10         (1)  The agency may deny, revoke, or suspend any

11  license issued under this chapter part, or impose an

12  administrative fine in the manner provided in chapter 120, for

13  any of the following actions by an assisted living facility,

14  for the actions of any person subject to level 2 background

15  screening under s. 429.174 400.4174, or for the actions of any

16  facility employee:

17         (a)  An intentional or negligent act seriously

18  affecting the health, safety, or welfare of a resident of the

19  facility.

20         (b)  The determination by the agency that the owner

21  lacks the financial ability to provide continuing adequate

22  care to residents.

23         (c)  Misappropriation or conversion of the property of

24  a resident of the facility.

25         (d)  Failure to follow the criteria and procedures

26  provided under part I of chapter 394 relating to the

27  transportation, voluntary admission, and involuntary

28  examination of a facility resident.

29         (e)  A citation of any of the following deficiencies as

30  defined in s. 429.19 400.419:

31         1.  One or more cited class I deficiencies.

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 1         2.  Three or more cited class II deficiencies.

 2         3.  Five or more cited class III deficiencies that have

 3  been cited on a single survey and have not been corrected

 4  within the times specified.

 5         (f)  A determination that a person subject to level 2

 6  background screening under s. 429.174 400.4174(1) does not

 7  meet the screening standards of s. 435.04 or that the facility

 8  is retaining an employee subject to level 1 background

 9  screening standards under s. 429.174 400.4174(2) who does not

10  meet the screening standards of s. 435.03 and for whom

11  exemptions from disqualification have not been provided by the

12  agency.

13         (g)  A determination that an employee, volunteer,

14  administrator, or owner, or person who otherwise has access to

15  the residents of a facility does not meet the criteria

16  specified in s. 435.03(2), and the owner or administrator has

17  not taken action to remove the person. Exemptions from

18  disqualification may be granted as set forth in s. 435.07. No

19  administrative action may be taken against the facility if the

20  person is granted an exemption.

21         (h)  Violation of a moratorium.

22         (i)  Failure of the license applicant, the licensee

23  during relicensure, or a licensee that holds a provisional

24  license to meet the minimum license requirements of this

25  chapter part, or related rules, at the time of license

26  application or renewal.

27         (j)  A fraudulent statement or omission of any material

28  fact on an application for a license or any other document

29  required by the agency, including the submission of a license

30  application that conceals the fact that any board member,

31  officer, or person owning 5 percent or more of the facility

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 1  may not meet the background screening requirements of s.

 2  429.174 400.4174, or that the applicant has been excluded,

 3  permanently suspended, or terminated from the Medicaid or

 4  Medicare programs.

 5         (k)  An intentional or negligent life-threatening act

 6  in violation of the uniform firesafety standards for assisted

 7  living facilities or other firesafety standards that threatens

 8  the health, safety, or welfare of a resident of a facility, as

 9  communicated to the agency by the local authority having

10  jurisdiction or the State Fire Marshal.

11         (l)  Exclusion, permanent suspension, or termination

12  from the Medicare or Medicaid programs.

13         (m)  Knowingly operating any unlicensed facility or

14  providing without a license any service that must be licensed

15  under this chapter or chapter 400.

16         (n)  Any act constituting a ground upon which

17  application for a license may be denied.

18  

19  Administrative proceedings challenging agency action under

20  this subsection shall be reviewed on the basis of the facts

21  and conditions that resulted in the agency action.

22         (3)  The agency may deny a license to any applicant or

23  to any officer or board member of an applicant who is a firm,

24  corporation, partnership, or association or who owns 5 percent

25  or more of the facility, if the applicant, officer, or board

26  member has or had a 25-percent or greater financial or

27  ownership interest in any other facility licensed under this

28  chapter part, or in any entity licensed by this state or

29  another state to provide health or residential care, which

30  facility or entity during the 5 years prior to the application

31  for a license closed due to financial inability to operate;

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 1  had a receiver appointed or a license denied, suspended, or

 2  revoked; was subject to a moratorium on admissions; had an

 3  injunctive proceeding initiated against it; or has an

 4  outstanding fine assessed under this chapter or chapter 400.

 5         (5)  An action taken by the agency to suspend, deny, or

 6  revoke a facility's license under this chapter part, in which

 7  the agency claims that the facility owner or an employee of

 8  the facility has threatened the health, safety, or welfare of

 9  a resident of the facility be heard by the Division of

10  Administrative Hearings of the Department of Management

11  Services within 120 days after receipt of the facility's

12  request for a hearing, unless that time limitation is waived

13  by both parties. The administrative law judge must render a

14  decision within 30 days after receipt of a proposed

15  recommended order.

16         Section 36.  Section 400.415, Florida Statutes, is

17  renumbered as section 429.15, Florida Statutes, and subsection

18  (1) is amended to read:

19         429.15 400.415  Moratorium on admissions; notice.--The

20  agency may impose an immediate moratorium on admissions to any

21  assisted living facility if the agency determines that any

22  condition in the facility presents a threat to the health,

23  safety, or welfare of the residents in the facility.

24         (1)  A facility the license of which is denied,

25  revoked, or suspended pursuant to s. 429.14 400.414  may be

26  subject to immediate imposition of a moratorium on admissions

27  to run concurrently with licensure denial, revocation, or

28  suspension.

29         Section 37.  Section 400.417, Florida Statutes, is

30  renumbered as section 429.17, Florida Statutes, and

31  subsections (2) and (3) are amended to read:

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 1         429.17 400.417  Expiration of license; renewal;

 2  conditional license.--

 3         (2)  A license shall be renewed within 90 days upon the

 4  timely filing of an application on forms furnished by the

 5  agency and the provision of satisfactory proof of ability to

 6  operate and conduct the facility in accordance with the

 7  requirements of this chapter part and adopted rules, including

 8  proof that the facility has received a satisfactory firesafety

 9  inspection, conducted by the local authority having

10  jurisdiction or the State Fire Marshal, within the preceding

11  12 months and an affidavit of compliance with the background

12  screening requirements of s. 429.174 400.4174.

13         (3)  An applicant for renewal of a license who has

14  complied with the provisions of s. 429.11 400.411 with respect

15  to proof of financial ability to operate shall not be required

16  to provide further proof unless the facility or any other

17  facility owned or operated in whole or in part by the same

18  person has demonstrated financial instability as provided

19  under s. 429.47 400.447(2) or unless the agency suspects that

20  the facility is not financially stable as a result of the

21  annual survey or complaints from the public or a report from

22  the State Long-Term Care Ombudsman Council.  Each facility

23  must report to the agency any adverse court action concerning

24  the facility's financial viability, within 7 days after its

25  occurrence.  The agency shall have access to books, records,

26  and any other financial documents maintained by the facility

27  to the extent necessary to determine the facility's financial

28  stability.  A license for the operation of a facility shall

29  not be renewed if the licensee has any outstanding fines

30  assessed pursuant to this chapter part which are in final

31  order status.

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 1         Section 38.  Section 400.4174, Florida Statutes, is

 2  renumbered as section 429.174, Florida Statutes, and

 3  subsection (2) is amended to read:

 4         429.174 400.4174  Background screening; exemptions.--

 5         (2)  The owner or administrator of an assisted living

 6  facility must conduct level 1 background screening, as set

 7  forth in chapter 435, on all employees hired on or after

 8  October 1, 1998, who perform personal services as defined in

 9  s. 429.02 400.402(17). The agency may exempt an individual

10  from employment disqualification as set forth in chapter 435.

11  Such persons shall be considered as having met this

12  requirement if:

13         (a)  Proof of compliance with level 1 screening

14  requirements obtained to meet any professional license

15  requirements in this state is provided and accompanied, under

16  penalty of perjury, by a copy of the person's current

17  professional license and an affidavit of current compliance

18  with the background screening requirements.

19         (b)  The person required to be screened has been

20  continuously employed in the same type of occupation for which

21  the person is seeking employment without a breach in service

22  which exceeds 180 days, and proof of compliance with the level

23  1 screening requirement which is no more than 2 years old is

24  provided. Proof of compliance shall be provided directly from

25  one employer or contractor to another, and not from the person

26  screened. Upon request, a copy of screening results shall be

27  provided by the employer retaining documentation of the

28  screening to the person screened.

29         (c)  The person required to be screened is employed by

30  a corporation or business entity or related corporation or

31  business entity that owns, operates, or manages more than one

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 1  facility or agency licensed under this chapter or chapter 400,

 2  and for whom a level 1 screening was conducted by the

 3  corporation or business entity as a condition of initial or

 4  continued employment.

 5         Section 39.  Section 400.4176, Florida Statutes, is

 6  renumbered as section 429.176, Florida Statutes, and amended

 7  to read:

 8         429.176 400.4176  Notice of change of

 9  administrator.--If, during the period for which a license is

10  issued, the owner changes administrators, the owner must

11  notify the agency of the change within 10 days and provide

12  documentation within 90 days that the new administrator has

13  completed the applicable core educational requirements under

14  s. 429.52 400.452. Background screening shall be completed on

15  any new administrator as specified in s. 429.174 400.4174.

16         Section 40.  Section 400.4177, Florida Statutes, is

17  renumbered as section 429.177, Florida Statutes, and amended

18  to read:

19         429.177 400.4177  Patients with Alzheimer's disease or

20  other related disorders; certain disclosures.--A facility

21  licensed under this chapter part which claims that it provides

22  special care for persons who have Alzheimer's disease or other

23  related disorders must disclose in its advertisements or in a

24  separate document those services that distinguish the care as

25  being especially applicable to, or suitable for, such

26  persons.  The facility must give a copy of all such

27  advertisements or a copy of the document to each person who

28  requests information about programs and services for persons

29  with Alzheimer's disease or other related disorders offered by

30  the facility and must maintain a copy of all such

31  advertisements and documents in its records. The agency shall

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 1  examine all such advertisements and documents in the

 2  facility's records as part of the license renewal procedure.

 3         Section 41.  Section 400.4178, Florida Statutes, is

 4  renumbered as section 429.178, Florida Statutes, and

 5  paragraphs (a) and (b) of subsection (2) are amended to read:

 6         429.178 400.4178  Special care for persons with

 7  Alzheimer's disease or other related disorders.--

 8         (2)(a)  An individual who is employed by a facility

 9  that provides special care for residents with Alzheimer's

10  disease or other related disorders, and who has regular

11  contact with such residents, must complete up to 4 hours of

12  initial dementia-specific training developed or approved by

13  the department. The training shall be completed within 3

14  months after beginning employment and shall satisfy the core

15  training requirements of s. 429.52 400.452(2)(g).

16         (b)  A direct caregiver who is employed by a facility

17  that provides special care for residents with Alzheimer's

18  disease or other related disorders, and who provides direct

19  care to such residents, must complete the required initial

20  training and 4 additional hours of training developed or

21  approved by the department. The training shall be completed

22  within 9 months after beginning employment and shall satisfy

23  the core training requirements of s. 429.52 400.452(2)(g).

24         Section 42.  Section 400.418, Florida Statutes, is

25  renumbered as section 429.18, Florida Statutes, and amended to

26  read:

27         429.18 400.418  Disposition of fees and administrative

28  fines.--

29         (1)  Income from license fees, inspection fees, late

30  fees, and administrative fines generated pursuant to ss.

31  429.07, 429.08, 429.17, 429.19, and 429.31 400.407, 400.408,

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 1  400.417, 400.419, and 400.431 shall be deposited in the Health

 2  Care Trust Fund administered by the agency.  Such funds shall

 3  be directed to and used by the agency for the following

 4  purposes:

 5         (a)  Up to 50 percent of the trust funds accrued each

 6  fiscal year under this chapter part may be used to offset the

 7  expenses of receivership, pursuant to s. 429.22 400.422, if

 8  the court determines that the income and assets of the

 9  facility are insufficient to provide for adequate management

10  and operation.

11         (b)  An amount of $5,000 of the trust funds accrued

12  each year under this chapter part shall be allocated to pay

13  for inspection-related physical and mental health examinations

14  requested by the agency pursuant to s. 429.26 400.426 for

15  residents who are either recipients of supplemental security

16  income or have monthly incomes not in excess of the maximum

17  combined federal and state cash subsidies available to

18  supplemental security income recipients, as provided for in s.

19  409.212.  Such funds shall only be used where the resident is

20  ineligible for Medicaid.

21         (c)  Any trust funds accrued each year under this

22  chapter part and not used for the purposes specified in

23  paragraphs (a) and (b) shall be used to offset the costs of

24  the licensure program, including the costs of conducting

25  background investigations, verifying information submitted,

26  defraying the costs of processing the names of applicants, and

27  conducting inspections and monitoring visits pursuant to this

28  chapter part.

29         (2)  Income from fees generated pursuant to s. 429.41

30  400.441(5) shall be deposited in the Health Care Trust Fund

31  and used to offset the costs of printing and postage.

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 1         Section 43.  Section 400.419, Florida Statutes, is

 2  renumbered as section 429.19, Florida Statutes, and

 3  subsections (1), (2), (9), (10), (11), and (12) are amended to

 4  read:

 5         429.19 400.419  Violations; imposition of

 6  administrative fines; grounds.--

 7         (1)  The agency shall impose an administrative fine in

 8  the manner provided in chapter 120 for any of the actions or

 9  violations as set forth within this section by an assisted

10  living facility, for the actions of any person subject to

11  level 2 background screening under s. 429.174 400.4174, for

12  the actions of any facility employee, or for an intentional or

13  negligent act seriously affecting the health, safety, or

14  welfare of a resident of the facility.

15         (2)  Each violation of this chapter part and adopted

16  rules shall be classified according to the nature of the

17  violation and the gravity of its probable effect on facility

18  residents. The agency shall indicate the classification on the

19  written notice of the violation as follows:

20         (a)  Class "I" violations are those conditions or

21  occurrences related to the operation and maintenance of a

22  facility or to the personal care of residents which the agency

23  determines present an imminent danger to the residents or

24  guests of the facility or a substantial probability that death

25  or serious physical or emotional harm would result therefrom.

26  The condition or practice constituting a class I violation

27  shall be abated or eliminated within 24 hours, unless a fixed

28  period, as determined by the agency, is required for

29  correction. The agency shall impose an administrative fine for

30  a cited class I violation in an amount not less than $5,000

31  

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 1  and not exceeding $10,000 for each violation. A fine may be

 2  levied notwithstanding the correction of the violation.

 3         (b)  Class "II" violations are those conditions or

 4  occurrences related to the operation and maintenance of a

 5  facility or to the personal care of residents which the agency

 6  determines directly threaten the physical or emotional health,

 7  safety, or security of the facility residents, other than

 8  class I violations. The agency shall impose an administrative

 9  fine for a cited class II violation in an amount not less than

10  $1,000 and not exceeding $5,000 for each violation. A fine

11  shall be levied notwithstanding the correction of the

12  violation.

13         (c)  Class "III" violations are those conditions or

14  occurrences related to the operation and maintenance of a

15  facility or to the personal care of residents which the agency

16  determines indirectly or potentially threaten the physical or

17  emotional health, safety, or security of facility residents,

18  other than class I or class II violations. The agency shall

19  impose an administrative fine for a cited class III violation

20  in an amount not less than $500 and not exceeding $1,000 for

21  each violation. A citation for a class III violation must

22  specify the time within which the violation is required to be

23  corrected. If a class III violation is corrected within the

24  time specified, no fine may be imposed, unless it is a

25  repeated offense.

26         (d)  Class "IV" violations are those conditions or

27  occurrences related to the operation and maintenance of a

28  building or to required reports, forms, or documents that do

29  not have the potential of negatively affecting residents.

30  These violations are of a type that the agency determines do

31  not threaten the health, safety, or security of residents of

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 1  the facility. The agency shall impose an administrative fine

 2  for a cited class IV violation in an amount not less than $100

 3  and not exceeding $200 for each violation. A citation for a

 4  class IV violation must specify the time within which the

 5  violation is required to be corrected. If a class IV violation

 6  is corrected within the time specified, no fine shall be

 7  imposed. Any class IV violation that is corrected during the

 8  time an agency survey is being conducted will be identified as

 9  an agency finding and not as a violation.

10         (9)  Any facility whose owner fails to apply for a

11  change-of-ownership license in accordance with s. 429.12

12  400.412 and operates the facility under the new ownership is

13  subject to a fine of $5,000.

14         (10)  In addition to any administrative fines imposed,

15  the agency may assess a survey fee, equal to the lesser of one

16  half of the facility's biennial license and bed fee or $500,

17  to cover the cost of conducting initial complaint

18  investigations that result in the finding of a violation that

19  was the subject of the complaint or monitoring visits

20  conducted under s. 429.28 400.428(3)(c) to verify the

21  correction of the violations.

22         (11)  The agency, as an alternative to or in

23  conjunction with an administrative action against a facility

24  for violations of this chapter part and adopted rules, shall

25  make a reasonable attempt to discuss each violation and

26  recommended corrective action with the owner or administrator

27  of the facility, prior to written notification. The agency,

28  instead of fixing a period within which the facility shall

29  enter into compliance with standards, may request a plan of

30  corrective action from the facility which demonstrates a good

31  

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 1  faith effort to remedy each violation by a specific date,

 2  subject to the approval of the agency.

 3         (12)  Administrative fines paid by any facility under

 4  this section shall be deposited into the Health Care Trust

 5  Fund and expended as provided in s. 429.18 400.418.

 6         Section 44.  Section 400.4195, Florida Statutes, is

 7  renumbered as section 429.195, Florida Statutes, and

 8  subsection  (1) is amended to read:

 9         429.195 400.4195  Rebates prohibited; penalties.--

10         (1)  It is unlawful for any assisted living facility

11  licensed under this chapter part to contract or promise to pay

12  or receive any commission, bonus, kickback, or rebate or

13  engage in any split-fee arrangement in any form whatsoever

14  with any physician, surgeon, organization, agency, or person,

15  either directly or indirectly, for residents referred to an

16  assisted living facility licensed under this chapter part. A

17  facility may employ or contract with persons to market the

18  facility, provided the employee or contract provider clearly

19  indicates that he or she represents the facility. A person or

20  agency independent of the facility may provide placement or

21  referral services for a fee to individuals seeking assistance

22  in finding a suitable facility; however, any fee paid for

23  placement or referral services must be paid by the individual

24  looking for a facility, not by the facility.

25         Section 45.  Section 400.42, Florida Statutes, is

26  renumbered as section 429.20, Florida Statutes, and

27  subsection  (3) is amended to read:

28         429.20 400.42  Certain solicitation prohibited;

29  third-party supplementation.--

30         (3)  The admission or maintenance of assisted living

31  facility residents whose care is supported, in whole or in

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 1  part, by state funds may not be conditioned upon the receipt

 2  of any manner of contribution or donation from any person. The

 3  solicitation or receipt of contributions in violation of this

 4  subsection is grounds for denial, suspension, or revocation of

 5  license, as provided in s. 429.14 400.414, for any assisted

 6  living facility by or on behalf of which such contributions

 7  were solicited.

 8         Section 46.  Section 400.421, Florida Statutes, is

 9  renumbered as section 429.21, Florida Statutes, and

10  subsection  (1) is amended to read:

11         429.21 400.421  Injunctive proceedings.--

12         (1)  The agency may institute injunctive proceedings in

13  a court of competent jurisdiction to:

14         (a)  Enforce the provisions of this chapter part or any

15  minimum standard, rule, or order issued or entered into

16  pursuant thereto when the attempt by the agency to correct a

17  violation through administrative fines has failed or when the

18  violation materially affects the health, safety, or welfare of

19  residents; or

20         (b)  Terminate the operation of a facility when

21  violations of any provisions of this chapter part or of any

22  standard or rule promulgated pursuant thereto exist which

23  materially affect the health, safety, or welfare of residents.

24         Section 47.  Section 400.422, Florida Statutes, is

25  renumbered as section 429.22, Florida Statutes, and paragraph

26  (a) of subsection (1) and subsection (9) are amended to read:

27         429.22 400.422  Receivership proceedings.--

28         (1)  As an alternative to or in conjunction with an

29  injunctive proceeding, the agency may petition a court of

30  competent jurisdiction for the appointment of a receiver, if

31  

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 1  suitable alternate placements are not available, when any of

 2  the following conditions exist:

 3         (a)  The facility is operating without a license and

 4  refuses to make application for a license as required by ss.

 5  429.07 400.407 and 429.08 400.408.

 6         (9)  The court may direct the agency to allocate funds

 7  from the Health Care Trust Fund to the receiver, subject to

 8  the provisions of s. 429.18 400.418(1).

 9         Section 48.  Section 400.423, Florida Statutes, is

10  renumbered as section 429.23, Florida Statutes, and

11  subsections (1), (2), (5), and (8) are amended to read:

12         429.23 400.423  Internal risk management and quality

13  assurance program; adverse incidents and reporting

14  requirements.--

15         (1)  Every facility licensed under this chapter part

16  may, as part of its administrative functions, voluntarily

17  establish a risk management and quality assurance program, the

18  purpose of which is to assess resident care practices,

19  facility incident reports, deficiencies cited by the agency,

20  adverse incident reports, and resident grievances and develop

21  plans of action to correct and respond quickly to identify

22  quality differences.

23         (2)  Every facility licensed under this chapter part is

24  required to maintain adverse incident reports. For purposes of

25  this section, the term, "adverse incident" means:

26         (a)  An event over which facility personnel could

27  exercise control rather than as a result of the resident's

28  condition and results in:

29         1.  Death;

30         2.  Brain or spinal damage;

31         3.  Permanent disfigurement;

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 1         4.  Fracture or dislocation of bones or joints;

 2         5.  Any condition that required medical attention to

 3  which the resident has not given his or her consent, including

 4  failure to honor advanced directives;

 5         6.  Any condition that requires the transfer of the

 6  resident from the facility to a unit providing more acute care

 7  due to the incident rather than the resident's condition

 8  before the incident.

 9         (b)  Abuse, neglect, or exploitation as defined in s.

10  415.102;

11         (c)  Events reported to law enforcement; or

12         (d)  Elopement.

13         (5)  Each facility shall report monthly to the agency

14  any liability claim filed against it. The report must include

15  the name of the resident, the dates of the incident leading to

16  the claim, if applicable, and the type of injury or violation

17  of rights alleged to have occurred. This report is not

18  discoverable in any civil or administrative action, except in

19  such actions brought by the agency to enforce the provisions

20  of this chapter part.

21         (8)  If the agency, through its receipt of the adverse

22  incident reports prescribed in this chapter part or through

23  any investigation, has reasonable belief that conduct by a

24  staff member or employee of a licensed facility is grounds for

25  disciplinary action by the appropriate board, the agency shall

26  report this fact to such regulatory board.

27         Section 49.  Section 400.424, Florida Statutes, is

28  renumbered as section 429.24, Florida Statutes, and

29  subsection  (2), paragraph (a) of subsection (3), and

30  subsection (5) are amended to read:

31         429.24 400.424  Contracts.--

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 1         (2)  Each contract must contain express provisions

 2  specifically setting forth the services and accommodations to

 3  be provided by the facility; the rates or charges; provision

 4  for at least 30 days' written notice of a rate increase; the

 5  rights, duties, and obligations of the residents, other than

 6  those specified in s. 429.28 400.428; and other matters that

 7  the parties deem appropriate. Whenever money is deposited or

 8  advanced by a resident in a contract as security for

 9  performance of the contract agreement or as advance rent for

10  other than the next immediate rental period:

11         (a)  Such funds shall be deposited in a banking

12  institution in this state that is located, if possible, in the

13  same community in which the facility is located; shall be kept

14  separate from the funds and property of the facility; may not

15  be represented as part of the assets of the facility on

16  financial statements; and shall be used, or otherwise

17  expended, only for the account of the resident.

18         (b)  The licensee shall, within 30 days of receipt of

19  advance rent or a security deposit, notify the resident or

20  residents in writing of the manner in which the licensee is

21  holding the advance rent or security deposit and state the

22  name and address of the depository where the moneys are being

23  held. The licensee shall notify residents of the facility's

24  policy on advance deposits.

25         (3)(a)  The contract shall include a refund policy to

26  be implemented at the time of a resident's transfer,

27  discharge, or death. The refund policy shall provide that the

28  resident or responsible party is entitled to a prorated refund

29  based on the daily rate for any unused portion of payment

30  beyond the termination date after all charges, including the

31  cost of damages to the residential unit resulting from

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 1  circumstances other than normal use, have been paid to the

 2  licensee. For the purpose of this paragraph, the termination

 3  date shall be the date the unit is vacated by the resident and

 4  cleared of all personal belongings. If the amount of

 5  belongings does not preclude renting the unit, the facility

 6  may clear the unit and charge the resident or his or her

 7  estate for moving and storing the items at a rate equal to the

 8  actual cost to the facility, not to exceed 20 percent of the

 9  regular rate for the unit, provided that 14 days' advance

10  written notification is given. If the resident's possessions

11  are not claimed within 45 days after notification, the

12  facility may dispose of them. The contract shall also specify

13  any other conditions under which claims will be made against

14  the refund due the resident. Except in the case of death or a

15  discharge due to medical reasons, the refunds shall be

16  computed in accordance with the notice of relocation

17  requirements specified in the contract. However, a resident

18  may not be required to provide the licensee with more than 30

19  days' notice of termination. If after a contract is

20  terminated, the facility intends to make a claim against a

21  refund due the resident, the facility shall notify the

22  resident or responsible party in writing of the claim and

23  shall provide said party with a reasonable time period of no

24  less than 14 calendar days to respond. The facility shall

25  provide a refund to the resident or responsible party within

26  45 days after the transfer, discharge, or death of the

27  resident. The agency shall impose a fine upon a facility that

28  fails to comply with the refund provisions of the paragraph,

29  which fine shall be equal to three times the amount due to the

30  resident. One-half of the fine shall be remitted to the

31  resident or his or her estate, and the other half to the

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 1  Health Care Trust Fund to be used for the purpose specified in

 2  s. 429.18 400.418.

 3         (5)  Neither the contract nor any provision thereof

 4  relieves any licensee of any requirement or obligation imposed

 5  upon it by this chapter part or rules adopted under this

 6  chapter part.

 7         Section 50.  Section 400.4255, Florida Statutes, is

 8  renumbered as section 429.255, Florida Statutes, and

 9  paragraphs (a) and (b) of subsection (1) and subsection (2)

10  are amended to read:

11         429.255 400.4255  Use of personnel; emergency care.--

12         (1)(a)  Persons under contract to the facility,

13  facility staff, or volunteers, who are licensed according to

14  part I of chapter 464, or those persons exempt under s.

15  464.022(1), and others as defined by rule, may administer

16  medications to residents, take residents' vital signs, manage

17  individual weekly pill organizers for residents who

18  self-administer medication, give prepackaged enemas ordered by

19  a physician, observe residents, document observations on the

20  appropriate resident's record, report observations to the

21  resident's physician, and contract or allow residents or a

22  resident's representative, designee, surrogate, guardian, or

23  attorney in fact to contract with a third party, provided

24  residents meet the criteria for appropriate placement as

25  defined in s. 429.26 400.426. Nursing assistants certified

26  pursuant to part II of chapter 464 may take residents' vital

27  signs as directed by a licensed nurse or physician.

28         (b)  All staff in facilities licensed under this

29  chapter part shall exercise their professional responsibility

30  to observe residents, to document observations on the

31  appropriate resident's record, and to report the observations

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 1  to the resident's physician.  However, the owner or

 2  administrator of the facility shall be responsible for

 3  determining that the resident receiving services is

 4  appropriate for residence in the facility.

 5         (2)  In facilities licensed to provide extended

 6  congregate care, persons under contract to the facility,

 7  facility staff, or volunteers, who are licensed according to

 8  part I of chapter 464, or those persons exempt under s.

 9  464.022(1), or those persons certified as nursing assistants

10  pursuant to part II of chapter 464, may also perform all

11  duties within the scope of their license or certification, as

12  approved by the facility administrator and pursuant to this

13  chapter part.

14         Section 51.  Section 400.4256, Florida Statutes, is

15  renumbered as section 429.256, Florida Statutes, and paragraph

16  (b) of subsection (1) is amended to read:

17         429.256 400.4256  Assistance with self-administration

18  of medication.--

19         (1)  For the purposes of this section, the term:

20         (b)  "Unlicensed person" means an individual not

21  currently licensed to practice nursing or medicine who is

22  employed by or under contract to an assisted living facility

23  and who has received training with respect to assisting with

24  the self-administration of medication in an assisted living

25  facility as provided under s. 429.52 400.452 prior to

26  providing such assistance as described in this section.

27         Section 52.  Section 400.426, Florida Statutes, is

28  renumbered as section 429.26, Florida Statutes, and

29  subsections  (1), (4), (5), (9), and (12) are amended to read:

30         429.26 400.426  Appropriateness of placements;

31  examinations of residents.--

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 1         (1)  The owner or administrator of a facility is

 2  responsible for determining the appropriateness of admission

 3  of an individual to the facility and for determining the

 4  continued appropriateness of residence of an individual in the

 5  facility. A determination shall be based upon an assessment of

 6  the strengths, needs, and preferences of the resident, the

 7  care and services offered or arranged for by the facility in

 8  accordance with facility policy, and any limitations in law or

 9  rule related to admission criteria or continued residency for

10  the type of license held by the facility under this chapter

11  part. A resident may not be moved from one facility to another

12  without consultation with and agreement from the resident or,

13  if applicable, the resident's representative or designee or

14  the resident's family, guardian, surrogate, or attorney in

15  fact. In the case of a resident who has been placed by the

16  department or the Department of Children and Family Services,

17  the administrator must notify the appropriate contact person

18  in the applicable department.

19         (4)  If possible, each resident shall have been

20  examined by a licensed physician or a licensed nurse

21  practitioner within 60 days before admission to the facility.

22  The signed and completed medical examination report shall be

23  submitted to the owner or administrator of the facility who

24  shall use the information contained therein to assist in the

25  determination of the appropriateness of the resident's

26  admission and continued stay in the facility. The medical

27  examination report shall become a permanent part of the record

28  of the resident at the facility and shall be made available to

29  the agency during inspection or upon request. An assessment

30  that has been completed through the Comprehensive Assessment

31  and Review for Long-Term Care Services (CARES) Program

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 1  fulfills the requirements for a medical examination under this

 2  subsection and s. 429.07 400.407(3)(b)6.

 3         (5)  Except as provided in s. 429.07 400.407, if a

 4  medical examination has not been completed within 60 days

 5  before the admission of the resident to the facility, a

 6  licensed physician or licensed nurse practitioner shall

 7  examine the resident and complete a medical examination form

 8  provided by the agency within 30 days following the admission

 9  to the facility to enable the facility owner or administrator

10  to determine the appropriateness of the admission. The medical

11  examination form shall become a permanent part of the record

12  of the resident at the facility and shall be made available to

13  the agency during inspection by the agency or upon request.

14         (9)  If, at any time after admission to a facility, a

15  resident appears to need care beyond that which the facility

16  is licensed to provide, the agency shall require the resident

17  to be physically examined by a licensed physician or licensed

18  nurse practitioner. This examination shall, to the extent

19  possible, be performed by the resident's preferred physician

20  or nurse practitioner and shall be paid for by the resident

21  with personal funds, except as provided in s. 429.18

22  400.418(1)(b). Following this examination, the examining

23  physician or licensed nurse practitioner shall complete and

24  sign a medical form provided by the agency. The completed

25  medical form shall be submitted to the agency within 30 days

26  after the date the facility owner or administrator is notified

27  by the agency that the physical examination is required. After

28  consultation with the physician or licensed nurse practitioner

29  who performed the examination, a medical review team

30  designated by the agency shall then determine whether the

31  resident is appropriately residing in the facility. The

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 1  medical review team shall base its decision on a comprehensive

 2  review of the resident's physical and functional status,

 3  including the resident's preferences, and not on an isolated

 4  health-related problem. In the case of a mental health

 5  resident, if the resident appears to have needs in addition to

 6  those identified in the community living support plan, the

 7  agency may require an evaluation by a mental health

 8  professional, as determined by the Department of Children and

 9  Family Services. A facility may not be required to retain a

10  resident who requires more services or care than the facility

11  is able to provide in accordance with its policies and

12  criteria for admission and continued residency. Members of the

13  medical review team making the final determination may not

14  include the agency personnel who initially questioned the

15  appropriateness of a resident's placement. Such determination

16  is final and binding upon the facility and the resident. Any

17  resident who is determined by the medical review team to be

18  inappropriately residing in a facility shall be given 30 days'

19  written notice to relocate by the owner or administrator,

20  unless the resident's continued residence in the facility

21  presents an imminent danger to the health, safety, or welfare

22  of the resident or a substantial probability exists that death

23  or serious physical harm would result to the resident if

24  allowed to remain in the facility.

25         (12)  No resident who requires 24-hour nursing

26  supervision, except for a resident who is an enrolled hospice

27  patient pursuant to part VI of this chapter 400, shall be

28  retained in a facility licensed under this chapter part.

29         Section 53.  Section 400.427, Florida Statutes, is

30  renumbered as section 429.27, Florida Statutes, and paragraph

31  (a) of subsection (6) is amended to read:

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 1         429.27 400.427  Property and personal affairs of

 2  residents.--

 3         (6)(a)  In addition to any damages or civil penalties

 4  to which a person is subject, any person who:

 5         1.  Intentionally withholds a resident's personal

 6  funds, personal property, or personal needs allowance, or who

 7  demands, beneficially receives, or contracts for payment of

 8  all or any part of a resident's personal property or personal

 9  needs allowance in satisfaction of the facility rate for

10  supplies and services; or

11         2.  Borrows from or pledges any personal funds of a

12  resident, other than the amount agreed to by written contract

13  under s. 429.24 400.424,

14  

15  commits a misdemeanor of the first degree, punishable as

16  provided in s. 775.082 or s. 775.083.

17         Section 54.  Section 400.4275, Florida Statutes, is

18  renumbered as section 429.275, Florida Statutes, and

19  subsection  (2) is amended to read:

20         429.275 400.4275  Business practice; personnel records;

21  liability insurance.--The assisted living facility shall be

22  administered on a sound financial basis that is consistent

23  with good business practices.

24         (2)  The administrator or owner of a facility shall

25  maintain personnel records for each staff member which

26  contain, at a minimum, documentation of background screening,

27  if applicable, documentation of compliance with all training

28  requirements of this chapter part or applicable rule, and a

29  copy of all licenses or certification held by each staff who

30  performs services for which licensure or certification is

31  required under this chapter part or rule.

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 1         Section 55.  Section 400.428, Florida Statutes, is

 2  renumbered as section 429.28, Florida Statutes, and paragraph

 3  (f) of subsection (1), subsection (2), paragraph (e) of

 4  subsection (3), paragraph (c) of subsection (5), and

 5  subsection (7) are amended to read:

 6         429.28 400.428  Resident bill of rights.--

 7         (1)  No resident of a facility shall be deprived of any

 8  civil or legal rights, benefits, or privileges guaranteed by

 9  law, the Constitution of the State of Florida, or the

10  Constitution of the United States as a resident of a facility.

11  Every resident of a facility shall have the right to:

12         (f)  Manage his or her financial affairs unless the

13  resident or, if applicable, the resident's representative,

14  designee, surrogate, guardian, or attorney in fact authorizes

15  the administrator of the facility to provide safekeeping for

16  funds as provided in s. 429.27 400.427.

17         (2)  The administrator of a facility shall ensure that

18  a written notice of the rights, obligations, and prohibitions

19  set forth in this chapter part is posted in a prominent place

20  in each facility and read or explained to residents who cannot

21  read. This notice shall include the name, address, and

22  telephone numbers of the local ombudsman council and central

23  abuse hotline and, when applicable, the Advocacy Center for

24  Persons with Disabilities, Inc., and the Florida local

25  advocacy council, where complaints may be lodged.  The

26  facility must ensure a resident's access to a telephone to

27  call the local ombudsman council, central abuse hotline,

28  Advocacy Center for Persons with Disabilities, Inc., and the

29  Florida local advocacy council.

30         (3)

31  

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 1         (e)  The agency may conduct complaint investigations as

 2  warranted to investigate any allegations of noncompliance with

 3  requirements required under this chapter part or rules adopted

 4  under this chapter part.

 5         (5)  No facility or employee of a facility may serve

 6  notice upon a resident to leave the premises or take any other

 7  retaliatory action against any person who:

 8         (c)  Files a civil action alleging a violation of the

 9  provisions of this chapter part or notifies a state attorney

10  or the Attorney General of a possible violation of such

11  provisions.

12         (7)  Any person who submits or reports a complaint

13  concerning a suspected violation of the provisions of this

14  chapter part or concerning services and conditions in

15  facilities, or who testifies in any administrative or judicial

16  proceeding arising from such a complaint, shall have immunity

17  from any civil or criminal liability therefor, unless such

18  person has acted in bad faith or with malicious purpose or the

19  court finds that there was a complete absence of a justiciable

20  issue of either law or fact raised by the losing party.

21         Section 56.  Section 400.429, Florida Statutes, is

22  renumbered as section 429.29, Florida Statutes, and

23  subsections (1), (2), and (7) are amended to read:

24         429.29 400.429  Civil actions to enforce rights.--

25         (1)  Any person or resident whose rights as specified

26  in this chapter part are violated shall have a cause of

27  action.  The action may be brought by the resident or his or

28  her guardian, or by a person or organization acting on behalf

29  of a resident with the consent of the resident or his or her

30  guardian, or by the personal representative of the estate of a

31  deceased resident regardless of the cause of death. If the

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 1  action alleges a claim for the resident's rights or for

 2  negligence that caused the death of the resident, the claimant

 3  shall be required to elect either survival damages pursuant to

 4  s. 46.021 or wrongful death damages pursuant to s. 768.21. If

 5  the action alleges a claim for the resident's rights or for

 6  negligence that did not cause the death of the resident, the

 7  personal representative of the estate may recover damages for

 8  the negligence that caused injury to the resident. The action

 9  may be brought in any court of competent jurisdiction to

10  enforce such rights and to recover actual damages, and

11  punitive damages for violation of the rights of a resident or

12  negligence. Any resident who prevails in seeking injunctive

13  relief or a claim for an administrative remedy is entitled to

14  recover the costs of the action and a reasonable attorney's

15  fee assessed against the defendant not to exceed $25,000. Fees

16  shall be awarded solely for the injunctive or administrative

17  relief and not for any claim or action for damages whether

18  such claim or action is brought together with a request for an

19  injunction or administrative relief or as a separate action,

20  except as provided under s. 768.79 or the Florida Rules of

21  Civil Procedure. Sections 429.29-429.298 400.429-400.4303

22  provide the exclusive remedy for a cause of action for

23  recovery of damages for the personal injury or death of a

24  resident arising out of negligence or a violation of rights

25  specified in s. 429.28 400.428. This section does not preclude

26  theories of recovery not arising out of negligence or s.

27  429.28 400.428 which are available to a resident or to the

28  agency. The provisions of chapter 766 do not apply to any

29  cause of action brought under ss. 429.29-429.298

30  400.429-400.4303.

31  

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 1         (2)  In any claim brought pursuant to this chapter part

 2  alleging a violation of resident's rights or negligence

 3  causing injury to or the death of a resident, the claimant

 4  shall have the burden of proving, by a preponderance of the

 5  evidence, that:

 6         (a)  The defendant owed a duty to the resident;

 7         (b)  The defendant breached the duty to the resident;

 8         (c)  The breach of the duty is a legal cause of loss,

 9  injury, death, or damage to the resident; and

10         (d)  The resident sustained loss, injury, death, or

11  damage as a result of the breach.

12  

13  Nothing in this chapter part shall be interpreted to create

14  strict liability. A violation of the rights set forth in s.

15  429.28 400.428 or in any other standard or guidelines

16  specified in this chapter part or in any applicable

17  administrative standard or guidelines of this state or a

18  federal regulatory agency shall be evidence of negligence but

19  shall not be considered negligence per se.

20         (7)  The resident or the resident's legal

21  representative shall serve a copy of any complaint alleging in

22  whole or in part a violation of any rights specified in this

23  chapter part to the Agency for Health Care Administration at

24  the time of filing the initial complaint with the clerk of the

25  court for the county in which the action is pursued. The

26  requirement of providing a copy of the complaint to the agency

27  does not impair the resident's legal rights or ability to seek

28  relief for his or her claim.

29         Section 57.  Section 400.4293, Florida Statutes, is

30  renumbered as section 429.293, Florida Statutes, and paragraph

31  

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 1  (a) of subsection (1) and subsections (2) and (10) are amended

 2  to read:

 3         429.293 400.4293  Presuit notice; investigation;

 4  notification of violation of residents' rights or alleged

 5  negligence; claims evaluation procedure; informal discovery;

 6  review; settlement offer; mediation.--

 7         (1)  As used in this section, the term:

 8         (a)  "Claim for residents' rights violation or

 9  negligence" means a negligence claim alleging injury to or the

10  death of a resident arising out of an asserted violation of

11  the rights of a resident under s. 429.28 400.428 or an

12  asserted deviation from the applicable standard of care.

13         (2)  Prior to filing a claim for a violation of a

14  resident's rights or a claim for negligence, a claimant

15  alleging injury to or the death of a resident shall notify

16  each prospective defendant by certified mail, return receipt

17  requested, of an asserted violation of a resident's rights

18  provided in s. 429.28 400.428 or deviation from the standard

19  of care. Such notification shall include an identification of

20  the rights the prospective defendant has violated and the

21  negligence alleged to have caused the incident or incidents

22  and a brief description of the injuries sustained by the

23  resident which are reasonably identifiable at the time of

24  notice. The notice shall contain a certificate of counsel that

25  counsel's reasonable investigation gave rise to a good faith

26  belief that grounds exist for an action against each

27  prospective defendant.

28         (10)  To the extent not inconsistent with this chapter

29  part, the provisions of the Florida Mediation Code, Florida

30  Rules of Civil Procedure, shall be applicable to such

31  proceedings.

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 1         Section 58.  Section 400.4294, Florida Statutes, is

 2  renumbered as section 429.294, Florida Statutes, and

 3  subsection (1) is amended to read:

 4         429.294 400.4294  Availability of facility records for

 5  investigation of resident's rights violations and defenses;

 6  penalty.--

 7         (1)  Failure to provide complete copies of a resident's

 8  records, including, but not limited to, all medical records

 9  and the resident's chart, within the control or possession of

10  the facility within 10 days, in accordance with the provisions

11  of s. 400.145, shall constitute evidence of failure of that

12  party to comply with good faith discovery requirements and

13  shall waive the good faith certificate and presuit notice

14  requirements under this chapter part by the requesting party.

15         Section 59.  Section 400.4295, Florida Statutes, is

16  renumbered as section 429.295, Florida Statutes, and amended

17  to read:

18         429.295 400.4295  Certain provisions not applicable to

19  actions under this chapter part.--An action under this chapter

20  part for a violation of rights or negligence recognized herein

21  is not a claim for medical malpractice, and the provisions of

22  s. 768.21(8) do not apply to a claim alleging death of the

23  resident.

24         Section 60.  Section 400.4296, Florida Statutes, is

25  renumbered as section 429.296, Florida Statutes, and

26  subsection (1) is amended to read:

27         429.296 400.4296  Statute of limitations.--

28         (1)  Any action for damages brought under this chapter

29  part shall be commenced within 2 years from the time the

30  incident giving rise to the action occurred or within 2 years

31  from the time the incident is discovered, or should have been

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 1  discovered with the exercise of due diligence; however, in no

 2  event shall the action be commenced later than 4 years from

 3  the date of the incident or occurrence out of which the cause

 4  of action accrued.

 5         Section 61.  Section 400.4297, Florida Statutes, is

 6  renumbered as section 429.297, Florida Statutes, and

 7  subsection (1) is amended to read:

 8         429.297 400.4297  Punitive damages; pleading; burden of

 9  proof.--

10         (1)  In any action for damages brought under this

11  chapter part, no claim for punitive damages shall be permitted

12  unless there is a reasonable showing by evidence in the record

13  or proffered by the claimant which would provide a reasonable

14  basis for recovery of such damages. The claimant may move to

15  amend her or his complaint to assert a claim for punitive

16  damages as allowed by the rules of civil procedure. The rules

17  of civil procedure shall be liberally construed so as to allow

18  the claimant discovery of evidence which appears reasonably

19  calculated to lead to admissible evidence on the issue of

20  punitive damages. No discovery of financial worth shall

21  proceed until after the pleading concerning punitive damages

22  is permitted.

23         Section 62.  Section 400.431, Florida Statutes, is

24  renumbered as section 429.31, Florida Statutes, and

25  subsections (1) and (5) are amended to read:

26         429.31 400.431  Closing of facility; notice; penalty.--

27         (1)  Whenever a facility voluntarily discontinues

28  operation, it shall inform the agency in writing at least 90

29  days prior to the discontinuance of operation. The facility

30  shall also inform each resident or the next of kin, legal

31  representative, or agency acting on each resident's behalf, of

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 1  the fact and the proposed time of such discontinuance,

 2  following the notification requirements provided in s. 429.28

 3  400.428(1)(k). In the event a resident has no person to

 4  represent him or her, the facility shall be responsible for

 5  referral to an appropriate social service agency for

 6  placement.

 7         (5)  The agency may levy a fine in an amount no greater

 8  than $5,000 upon each person or business entity that owns any

 9  interest in a facility that terminates operation without

10  providing notice to the agency and the residents of the

11  facility at least 30 days before operation ceases. This fine

12  shall not be levied against any facility involuntarily closed

13  at the initiation of the agency. The agency shall use the

14  proceeds of the fines to operate the facility until all

15  residents of the facility are relocated and shall deposit any

16  balance of the proceeds into the Health Care Trust Fund

17  established pursuant to s. 429.18 400.418.

18         Section 63.  Section 400.434, Florida Statutes, is

19  renumbered as section 429.34, Florida Statutes, and amended to

20  read:

21         429.34 400.434  Right of entry and inspection.--Any

22  duly designated officer or employee of the department, the

23  Department of Children and Family Services, the agency, the

24  Medicaid Fraud Control Unit of the Department of Legal

25  Affairs, the state or local fire marshal, or a member of the

26  state or local long-term care ombudsman council shall have the

27  right to enter unannounced upon and into the premises of any

28  facility licensed pursuant to this chapter part in order to

29  determine the state of compliance with the provisions of this

30  chapter part and of rules or standards in force pursuant

31  thereto. The right of entry and inspection shall also extend

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 1  to any premises which the agency has reason to believe is

 2  being operated or maintained as a facility without a license;

 3  but no such entry or inspection of any premises may be made

 4  without the permission of the owner or person in charge

 5  thereof, unless a warrant is first obtained from the circuit

 6  court authorizing such entry.  The warrant requirement shall

 7  extend only to a facility which the agency has reason to

 8  believe is being operated or maintained as a facility without

 9  a license.  Any application for a license or renewal thereof

10  made pursuant to this chapter part shall constitute permission

11  for, and complete acquiescence in, any entry or inspection of

12  the premises for which the license is sought, in order to

13  facilitate verification of the information submitted on or in

14  connection with the application; to discover, investigate, and

15  determine the existence of abuse or neglect; or to elicit,

16  receive, respond to, and resolve complaints. Any current valid

17  license shall constitute unconditional permission for, and

18  complete acquiescence in, any entry or inspection of the

19  premises by authorized personnel. The agency shall retain the

20  right of entry and inspection of facilities that have had a

21  license revoked or suspended within the previous 24 months, to

22  ensure that the facility is not operating unlawfully. However,

23  before entering the facility, a statement of probable cause

24  must be filed with the director of the agency, who must

25  approve or disapprove the action within 48 hours. Probable

26  cause shall include, but is not limited to, evidence that the

27  facility holds itself out to the public as a provider of

28  personal care services or the receipt of a complaint by the

29  long-term care ombudsman council about the facility. Data

30  collected by the state or local long-term care ombudsman

31  councils or the state or local advocacy councils may be used

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 1  by the agency in investigations involving violations of

 2  regulatory standards.

 3         Section 64.  Section 400.441, Florida Statutes, is

 4  renumbered as section 429.41, Florida Statutes, and

 5  subsections (1) and (2), paragraph (b) of subsection (3), and

 6  subsection (5) are amended to read:

 7         429.41 400.441  Rules establishing standards.--

 8         (1)  It is the intent of the Legislature that rules

 9  published and enforced pursuant to this section shall include

10  criteria by which a reasonable and consistent quality of

11  resident care and quality of life may be ensured and the

12  results of such resident care may be demonstrated.  Such rules

13  shall also ensure a safe and sanitary environment that is

14  residential and noninstitutional in design or nature.  It is

15  further intended that reasonable efforts be made to

16  accommodate the needs and preferences of residents to enhance

17  the quality of life in a facility. In order to provide safe

18  and sanitary facilities and the highest quality of resident

19  care accommodating the needs and preferences of residents, the

20  department, in consultation with the agency, the Department of

21  Children and Family Services, and the Department of Health,

22  shall adopt rules, policies, and procedures to administer this

23  chapter part, which must include reasonable and fair minimum

24  standards in relation to:

25         (a)  The requirements for and maintenance of

26  facilities, not in conflict with the provisions of chapter

27  553, relating to plumbing, heating, cooling, lighting,

28  ventilation, living space, and other housing conditions, which

29  will ensure the health, safety, and comfort of residents and

30  protection from fire hazard, including adequate provisions for

31  fire alarm and other fire protection suitable to the size of

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 1  the structure. Uniform firesafety standards shall be

 2  established and enforced by the State Fire Marshal in

 3  cooperation with the agency, the department, and the

 4  Department of Health.

 5         1.  Evacuation capability determination.--

 6         a.  The provisions of the National Fire Protection

 7  Association, NFPA 101A, Chapter 5, 1995 edition, shall be used

 8  for determining the ability of the residents, with or without

 9  staff assistance, to relocate from or within a licensed

10  facility to a point of safety as provided in the fire codes

11  adopted herein. An evacuation capability evaluation for

12  initial licensure shall be conducted within 6 months after the

13  date of licensure. For existing licensed facilities that are

14  not equipped with an automatic fire sprinkler system, the

15  administrator shall evaluate the evacuation capability of

16  residents at least annually. The evacuation capability

17  evaluation for each facility not equipped with an automatic

18  fire sprinkler system shall be validated, without liability,

19  by the State Fire Marshal, by the local fire marshal, or by

20  the local authority having jurisdiction over firesafety,

21  before the license renewal date. If the State Fire Marshal,

22  local fire marshal, or local authority having jurisdiction

23  over firesafety has reason to believe that the evacuation

24  capability of a facility as reported by the administrator may

25  have changed, it may, with assistance from the facility

26  administrator, reevaluate the evacuation capability through

27  timed exiting drills. Translation of timed fire exiting drills

28  to evacuation capability may be determined:

29         (I)  Three minutes or less: prompt.

30         (II)  More than 3 minutes, but not more than 13

31  minutes: slow.

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 1         (III)  More than 13 minutes: impractical.

 2         b.  The Office of the State Fire Marshal shall provide

 3  or cause the provision of training and education on the proper

 4  application of Chapter 5, NFPA 101A, 1995 edition, to its

 5  employees, to staff of the Agency for Health Care

 6  Administration who are responsible for regulating facilities

 7  under this chapter part, and to local governmental inspectors.

 8  The Office of the State Fire Marshal shall provide or cause

 9  the provision of this training within its existing budget, but

10  may charge a fee for this training to offset its costs. The

11  initial training must be delivered within 6 months after July

12  1, 1995, and as needed thereafter.

13         c.  The Office of the State Fire Marshal, in

14  cooperation with provider associations, shall provide or cause

15  the provision of a training program designed to inform

16  facility operators on how to properly review bid documents

17  relating to the installation of automatic fire sprinklers. The

18  Office of the State Fire Marshal shall provide or cause the

19  provision of this training within its existing budget, but may

20  charge a fee for this training to offset its costs. The

21  initial training must be delivered within 6 months after July

22  1, 1995, and as needed thereafter.

23         d.  The administrator of a licensed facility shall sign

24  an affidavit verifying the number of residents occupying the

25  facility at the time of the evacuation capability evaluation.

26         2.  Firesafety requirements.--

27         a.  Except for the special applications provided

28  herein, effective January 1, 1996, the provisions of the

29  National Fire Protection Association, Life Safety Code, NFPA

30  101, 1994 edition, Chapter 22 for new facilities and Chapter

31  23 for existing facilities shall be the uniform fire code

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 1  applied by the State Fire Marshal for assisted living

 2  facilities, pursuant to s. 633.022.

 3         b.  Any new facility, regardless of size, that applies

 4  for a license on or after January 1, 1996, must be equipped

 5  with an automatic fire sprinkler system. The exceptions as

 6  provided in section 22-2.3.5.1, NFPA 101, 1994 edition, as

 7  adopted herein, apply to any new facility housing eight or

 8  fewer residents. On July 1, 1995, local governmental entities

 9  responsible for the issuance of permits for construction shall

10  inform, without liability, any facility whose permit for

11  construction is obtained prior to January 1, 1996, of this

12  automatic fire sprinkler requirement. As used in this chapter

13  part, the term "a new facility" does not mean an existing

14  facility that has undergone change of ownership.

15         c.  Notwithstanding any provision of s. 633.022 or of

16  the National Fire Protection Association, NFPA 101A, Chapter

17  5, 1995 edition, to the contrary, any existing facility

18  housing eight or fewer residents is not required to install an

19  automatic fire sprinkler system, nor to comply with any other

20  requirement in Chapter 23, NFPA 101, 1994 edition, that

21  exceeds the firesafety requirements of NFPA 101, 1988 edition,

22  that applies to this size facility, unless the facility has

23  been classified as impractical to evacuate. Any existing

24  facility housing eight or fewer residents that is classified

25  as impractical to evacuate must install an automatic fire

26  sprinkler system within the timeframes granted in this

27  section.

28         d.  Any existing facility that is required to install

29  an automatic fire sprinkler system under this paragraph need

30  not meet other firesafety requirements of Chapter 23, NFPA

31  101, 1994 edition, which exceed the provisions of NFPA 101,

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 1  1988 edition. The mandate contained in this paragraph which

 2  requires certain facilities to install an automatic fire

 3  sprinkler system supersedes any other requirement.

 4         e.  This paragraph does not supersede the exceptions

 5  granted in NFPA 101, 1988 edition or 1994 edition.

 6         f.  This paragraph does not exempt facilities from

 7  other firesafety provisions adopted under s. 633.022 and local

 8  building code requirements in effect before July 1, 1995.

 9         g.  A local government may charge fees only in an

10  amount not to exceed the actual expenses incurred by local

11  government relating to the installation and maintenance of an

12  automatic fire sprinkler system in an existing and properly

13  licensed assisted living facility structure as of January 1,

14  1996.

15         h.  If a licensed facility undergoes major

16  reconstruction or addition to an existing building on or after

17  January 1, 1996, the entire building must be equipped with an

18  automatic fire sprinkler system. Major reconstruction of a

19  building means repair or restoration that costs in excess of

20  50 percent of the value of the building as reported on the tax

21  rolls, excluding land, before reconstruction. Multiple

22  reconstruction projects within a 5-year period the total costs

23  of which exceed 50 percent of the initial value of the

24  building at the time the first reconstruction project was

25  permitted are to be considered as major reconstruction.

26  Application for a permit for an automatic fire sprinkler

27  system is required upon application for a permit for a

28  reconstruction project that creates costs that go over the

29  50-percent threshold.

30         i.  Any facility licensed before January 1, 1996, that

31  is required to install an automatic fire sprinkler system

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 1  shall ensure that the installation is completed within the

 2  following timeframes based upon evacuation capability of the

 3  facility as determined under subparagraph 1.:

 4         (I)  Impractical evacuation capability, 24 months.

 5         (II)  Slow evacuation capability, 48 months.

 6         (III)  Prompt evacuation capability, 60 months.

 7  

 8  The beginning date from which the deadline for the automatic

 9  fire sprinkler installation requirement must be calculated is

10  upon receipt of written notice from the local fire official

11  that an automatic fire sprinkler system must be installed. The

12  local fire official shall send a copy of the document

13  indicating the requirement of a fire sprinkler system to the

14  Agency for Health Care Administration.

15         j.  It is recognized that the installation of an

16  automatic fire sprinkler system may create financial hardship

17  for some facilities. The appropriate local fire official

18  shall, without liability, grant two 1-year extensions to the

19  timeframes for installation established herein, if an

20  automatic fire sprinkler installation cost estimate and proof

21  of denial from two financial institutions for a construction

22  loan to install the automatic fire sprinkler system are

23  submitted. However, for any facility with a class I or class

24  II, or a history of uncorrected class III, firesafety

25  deficiencies, an extension must not be granted. The local fire

26  official shall send a copy of the document granting the time

27  extension to the Agency for Health Care Administration.

28         k.  A facility owner whose facility is required to be

29  equipped with an automatic fire sprinkler system under Chapter

30  23, NFPA 101, 1994 edition, as adopted herein, must disclose

31  to any potential buyer of the facility that an installation of

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 1  an automatic fire sprinkler requirement exists. The sale of

 2  the facility does not alter the timeframe for the installation

 3  of the automatic fire sprinkler system.

 4         l.  Existing facilities required to install an

 5  automatic fire sprinkler system as a result of

 6  construction-type restrictions in Chapter 23, NFPA 101, 1994

 7  edition, as adopted herein, or evacuation capability

 8  requirements shall be notified by the local fire official in

 9  writing of the automatic fire sprinkler requirement, as well

10  as the appropriate date for final compliance as provided in

11  this subparagraph. The local fire official shall send a copy

12  of the document to the Agency for Health Care Administration.

13         m.  Except in cases of life-threatening fire hazards,

14  if an existing facility experiences a change in the evacuation

15  capability, or if the local authority having jurisdiction

16  identifies a construction-type restriction, such that an

17  automatic fire sprinkler system is required, it shall be

18  afforded time for installation as provided in this

19  subparagraph.

20  

21  Facilities that are fully sprinkled and in compliance with

22  other firesafety standards are not required to conduct more

23  than one of the required fire drills between the hours of 11

24  p.m. and 7 a.m., per year. In lieu of the remaining drills,

25  staff responsible for residents during such hours may be

26  required to participate in a mock drill that includes a review

27  of evacuation procedures. Such standards must be included or

28  referenced in the rules adopted by the State Fire Marshal.

29  Pursuant to s. 633.022(1)(b), the State Fire Marshal is the

30  final administrative authority for firesafety standards

31  established and enforced pursuant to this section. All

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 1  licensed facilities must have an annual fire inspection

 2  conducted by the local fire marshal or authority having

 3  jurisdiction.

 4         3.  Resident elopement requirements.--Facilities are

 5  required to conduct a minimum of two resident elopement

 6  prevention and response drills per year. All administrators

 7  and direct care staff must participate in the drills which

 8  shall include a review of procedures to address resident

 9  elopement. Facilities must document the implementation of the

10  drills and ensure that the drills are conducted in a manner

11  consistent with the facility's resident elopement policies and

12  procedures.

13         (b)  The preparation and annual update of a

14  comprehensive emergency management plan.  Such standards must

15  be included in the rules adopted by the department after

16  consultation with the Department of Community Affairs.  At a

17  minimum, the rules must provide for plan components that

18  address emergency evacuation transportation; adequate

19  sheltering arrangements; postdisaster activities, including

20  provision of emergency power, food, and water; postdisaster

21  transportation; supplies; staffing; emergency equipment;

22  individual identification of residents and transfer of

23  records; communication with families; and responses to family

24  inquiries.  The comprehensive emergency management plan is

25  subject to review and approval by the local emergency

26  management agency. During its review, the local emergency

27  management agency shall ensure that the following agencies, at

28  a minimum, are given the opportunity to review the plan:  the

29  Department of Elderly Affairs, the Department of Health, the

30  Agency for Health Care Administration, and the Department of

31  Community Affairs.  Also, appropriate volunteer organizations

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 1  must be given the opportunity to review the plan.  The local

 2  emergency management agency shall complete its review within

 3  60 days and either approve the plan or advise the facility of

 4  necessary revisions.

 5         (c)  The number, training, and qualifications of all

 6  personnel having responsibility for the care of

 7  residents.  The rules must require adequate staff to provide

 8  for the safety of all residents.  Facilities licensed for 17

 9  or more residents are required to maintain an alert staff for

10  24 hours per day.

11         (d)  All sanitary conditions within the facility and

12  its surroundings which will ensure the health and comfort of

13  residents.  The rules must clearly delineate the

14  responsibilities of the agency's licensure and survey staff,

15  the county health departments, and the local authority having

16  jurisdiction over fire safety and ensure that inspections are

17  not duplicative.  The agency may collect fees for food service

18  inspections conducted by the county health departments and

19  transfer such fees to the Department of Health.

20         (e)  License application and license renewal, transfer

21  of ownership, proper management of resident funds and personal

22  property, surety bonds, resident contracts, refund policies,

23  financial ability to operate, and facility and staff records.

24         (f)  Inspections, complaint investigations,

25  moratoriums, classification of deficiencies, levying and

26  enforcement of penalties, and use of income from fees and

27  fines.

28         (g)  The enforcement of the resident bill of rights

29  specified in s. 429.28 400.428.

30         (h)  The care and maintenance of residents, which must

31  include, but is not limited to:

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 1         1.  The supervision of residents;

 2         2.  The provision of personal services;

 3         3.  The provision of, or arrangement for, social and

 4  leisure activities;

 5         4.  The arrangement for appointments and transportation

 6  to appropriate medical, dental, nursing, or mental health

 7  services, as needed by residents;

 8         5.  The management of medication;

 9         6.  The nutritional needs of residents;

10         7.  Resident records; and

11         8.  Internal risk management and quality assurance.

12         (i)  Facilities holding a limited nursing, extended

13  congregate care, or limited mental health license.

14         (j)  The establishment of specific criteria to define

15  appropriateness of resident admission and continued residency

16  in a facility holding a standard, limited nursing, extended

17  congregate care, and limited mental health license.

18         (k)  The use of physical or chemical restraints.  The

19  use of physical restraints is limited to half-bed rails as

20  prescribed and documented by the resident's physician with the

21  consent of the resident or, if applicable, the resident's

22  representative or designee or the resident's surrogate,

23  guardian, or attorney in fact.  The use of chemical restraints

24  is limited to prescribed dosages of medications authorized by

25  the resident's physician and must be consistent with the

26  resident's diagnosis. Residents who are receiving medications

27  that can serve as chemical restraints must be evaluated by

28  their physician at least annually to assess:

29         1.  The continued need for the medication.

30         2.  The level of the medication in the resident's

31  blood.

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 1         3.  The need for adjustments in the prescription.

 2         (l)  The establishment of specific policies and

 3  procedures on resident elopement. Facilities shall conduct a

 4  minimum of two resident elopement drills each year. All

 5  administrators and direct care staff shall participate in the

 6  drills. Facilities shall document the drills.

 7         (2)  In adopting any rules pursuant to this chapter

 8  part, the department, in conjunction with the agency, shall

 9  make distinct standards for facilities based upon facility

10  size; the types of care provided; the physical and mental

11  capabilities and needs of residents; the type, frequency, and

12  amount of services and care offered; and the staffing

13  characteristics of the facility. Rules developed pursuant to

14  this section shall not restrict the use of shared staffing and

15  shared programming in facilities that are part of retirement

16  communities that provide multiple levels of care and otherwise

17  meet the requirements of law and rule.  Except for uniform

18  firesafety standards, the department shall adopt by rule

19  separate and distinct standards for facilities with 16 or

20  fewer beds and for facilities with 17 or more beds.  The

21  standards for facilities with 16 or fewer beds shall be

22  appropriate for a noninstitutional residential environment,

23  provided that the structure is no more than two stories in

24  height and all persons who cannot exit the facility unassisted

25  in an emergency reside on the first floor.  The department, in

26  conjunction with the agency, may make other distinctions among

27  types of facilities as necessary to enforce the provisions of

28  this chapter part. Where appropriate, the agency shall offer

29  alternate solutions for complying with established standards,

30  based on distinctions made by the department and the agency

31  

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 1  relative to the physical characteristics of facilities and the

 2  types of care offered therein.

 3         (3)  The department shall submit a copy of proposed

 4  rules to the Speaker of the House of Representatives, the

 5  President of the Senate, and appropriate committees of

 6  substance for review and comment prior to the promulgation

 7  thereof.

 8         (b)  The agency, in consultation with the department,

 9  may waive rules promulgated pursuant to this chapter part in

10  order to demonstrate and evaluate innovative or cost-effective

11  congregate care alternatives which enable individuals to age

12  in place.  Such waivers may be granted only in instances where

13  there is reasonable assurance that the health, safety, or

14  welfare of residents will not be endangered.  To apply for a

15  waiver, the licensee shall submit to the agency a written

16  description of the concept to be demonstrated, including

17  goals, objectives, and anticipated benefits; the number and

18  types of residents who will be affected, if applicable; a

19  brief description of how the demonstration will be evaluated;

20  and any other information deemed appropriate by the

21  agency.  Any facility granted a waiver shall submit a report

22  of findings to the agency and the department within 12

23  months.  At such time, the agency may renew or revoke the

24  waiver or pursue any regulatory or statutory changes necessary

25  to allow other facilities to adopt the same practices. The

26  department may by rule clarify terms and establish waiver

27  application procedures, criteria for reviewing waiver

28  proposals, and procedures for reporting findings, as necessary

29  to implement this subsection.

30         (5)  A fee shall be charged by the department to any

31  person requesting a copy of this chapter part or rules

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 1  promulgated under this chapter part. Such fees shall not

 2  exceed the actual cost of duplication and postage.

 3         Section 65.  Section 400.442, Florida Statutes, is

 4  renumbered as section 429.42, Florida Statutes, and

 5  subsections (1) and (3) are amended to read:

 6         429.42 400.442  Pharmacy and dietary services.--

 7         (1)  Any assisted living facility in which the agency

 8  has documented a class I or class II deficiency or uncorrected

 9  class III deficiencies regarding medicinal drugs or

10  over-the-counter preparations, including their storage, use,

11  delivery, or administration, or dietary services, or both,

12  during a biennial survey or a monitoring visit or an

13  investigation in response to a complaint, shall, in addition

14  to or as an alternative to any penalties imposed under s.

15  429.19 400.419, be required to employ the consultant services

16  of a licensed pharmacist, a licensed registered nurse, or a

17  registered or licensed dietitian, as applicable. The

18  consultant shall, at a minimum, provide onsite quarterly

19  consultation until the inspection team from the agency

20  determines that such consultation services are no longer

21  required.

22         (3)  The agency shall employ at least two pharmacists

23  licensed pursuant to chapter 465 among its personnel who

24  biennially inspect assisted living facilities licensed under

25  this chapter part, to participate in biennial inspections or

26  consult with the agency regarding deficiencies relating to

27  medicinal drugs or over-the-counter preparations.

28         Section 66.  Section 400.444, Florida Statutes, is

29  renumbered as section 429.44, Florida Statutes, and subsection

30  (2) is amended to read:

31  

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 1         429.44 400.444  Construction and renovation;

 2  requirements.--

 3         (2)  Upon notification by the local authority having

 4  jurisdiction over life-threatening violations which seriously

 5  threaten the health, safety, or welfare of a resident of a

 6  facility, the agency shall take action as specified in s.

 7  429.14 400.414.

 8         Section 67.  Section 400.4445, Florida Statutes, is

 9  renumbered as section 429.445, Florida Statutes, and amended

10  to read:

11         429.445 400.4445  Compliance with local zoning

12  requirements.--No facility licensed under this chapter part

13  may commence any construction which will expand the size of

14  the existing structure unless the licensee first submits to

15  the agency proof that such construction will be in compliance

16  with applicable local zoning requirements.  Facilities with a

17  licensed capacity of less than 15 persons shall comply with

18  the provisions of chapter 419.

19         Section 68.  Section 400.447, Florida Statutes, is

20  renumbered as section 429.47, Florida Statutes, and

21  subsections (2), (5), and (7) are amended to read:

22         429.47 400.447  Prohibited acts; penalties for

23  violation.--

24         (2)  It is unlawful for any holder of a license issued

25  pursuant to the provisions of this act to withhold from the

26  agency any evidence of financial instability, including, but

27  not limited to, bad checks, delinquent accounts, nonpayment of

28  withholding taxes, unpaid utility expenses, nonpayment for

29  essential services, or adverse court action concerning the

30  financial viability of the facility or any other facility

31  

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 1  licensed under part II of chapter 400 or under part III of

 2  this chapter which is owned by the licensee.

 3         (5)  A freestanding facility shall not advertise or

 4  imply that any part of it is a nursing home. For the purpose

 5  of this subsection, "freestanding facility" means a facility

 6  that is not operated in conjunction with a nursing home to

 7  which residents of the facility are given priority when

 8  nursing care is required. A person who violates this

 9  subsection is subject to fine as specified in s. 429.19

10  400.419.

11         (7)  A facility licensed under this chapter part which

12  is not part of a facility authorized under chapter 651 shall

13  include the facility's license number as given by the agency

14  in all advertising.  A company or person owning more than one

15  facility shall include at least one license number per

16  advertisement.  All advertising shall include the term

17  "assisted living facility" before the license number.

18         Section 69.  Section 400.451, Florida Statutes, is

19  renumbered as section 429.51, Florida Statutes, and amended to

20  read:

21         429.51 400.451  Existing facilities to be given

22  reasonable time to comply with rules and standards.--Any

23  facility as defined in this chapter part which is in operation

24  at the time of promulgation of any applicable rules or

25  standards adopted or amended pursuant to this chapter part may

26  be given a reasonable time, not to exceed 6 months, within

27  which to comply with such rules and standards.

28         Section 70.  Section 400.452, Florida Statutes, is

29  renumbered as section 429.52, Florida Statutes, and

30  subsections (3) and (5) are amended to read:

31  

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 1         429.52 400.452  Staff training and educational

 2  programs; core educational requirement.--

 3         (3)  Effective January 1, 2004, a new facility

 4  administrator must complete the required training and

 5  education, including the competency test, within a reasonable

 6  time after being employed as an administrator, as determined

 7  by the department. Failure to do so is a violation of this

 8  chapter part and subjects the violator to an administrative

 9  fine as prescribed in s. 429.19 400.419. Administrators

10  licensed in accordance with chapter 468, part II, are exempt

11  from this requirement. Other licensed professionals may be

12  exempted, as determined by the department by rule.

13         (5)  Staff involved with the management of medications

14  and assisting with the self-administration of medications

15  under s. 429.256 400.4256 must complete a minimum of 4

16  additional hours of training provided by a registered nurse,

17  licensed pharmacist, or department staff. The department shall

18  establish by rule the minimum requirements of this additional

19  training.

20         Section 71.  Section 400.453, Florida Statutes, is

21  renumbered as section 429.53, Florida Statutes, and paragraph

22  (b) of subsection (1) and paragraphs (a), (e), and (f) of

23  subsection (2) are amended to read:

24         429.53 400.453  Consultation by the agency.--

25         (1)  The area offices of licensure and certification of

26  the agency shall provide consultation to the following upon

27  request:

28         (b)  A person interested in obtaining a license to

29  operate a facility under this chapter part.

30         (2)  As used in this section, "consultation" includes:

31  

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 1         (a)  An explanation of the requirements of this chapter

 2  part and rules adopted pursuant thereto;

 3         (e)  Any other information which the agency deems

 4  necessary to promote compliance with the requirements of this

 5  chapter part; and

 6         (f)  A preconstruction review of a facility to ensure

 7  compliance with agency rules and this chapter part.

 8         Section 72.  Subsections (1), (7), and (15) of section

 9  400.462, Florida Statutes, are amended to read:

10         400.462  Definitions.--As used in this part, the term:

11         (1)  "Administrator" means a direct employee of the

12  home health agency or a related organization, or of a

13  management company that has a contract to manage the home

14  health agency, to whom the governing body has delegated the

15  responsibility for day-to-day administration of the home

16  health agency.  The administrator must be a licensed

17  physician, physician assistant, or registered nurse licensed

18  to practice in this state or an individual having at least 1

19  year of supervisory or administrative experience in home

20  health care or in a facility licensed under chapter 395, or

21  under part II or part III of this chapter, or under chapter

22  429. An administrator may manage a maximum of five licensed

23  home health agencies located within one agency service

24  district or within an immediately contiguous county. If the

25  home health agency is licensed under this chapter and is part

26  of a retirement community that provides multiple levels of

27  care, an employee of the retirement community may administer

28  the home health agency and up to a maximum of four entities

29  licensed under this chapter or chapter 429 that are owned,

30  operated, or managed by the same corporate entity. An

31  administrator shall designate, in writing, for each licensed

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 1  entity, a qualified alternate administrator to serve during

 2  absences.

 3         (7)  "Director of nursing" means a registered nurse and

 4  direct employee of the agency or related business entity who

 5  is a graduate of an approved school of nursing and is licensed

 6  in this state; who has at least 1 year of supervisory

 7  experience as a registered nurse in a licensed home health

 8  agency, a facility licensed under chapter 395, or a facility

 9  licensed under part II or part III of this chapter or under

10  chapter 429; and who is responsible for overseeing the

11  professional nursing and home health aid delivery of services

12  of the agency. An employee may be the director of nursing of a

13  maximum of five licensed home health agencies operated by a

14  related business entity and located within one agency service

15  district or within an immediately contiguous county.  If the

16  home health agency is licensed under this chapter and is part

17  of a retirement community that provides multiple levels of

18  care, an employee of the retirement community may serve as the

19  director of nursing of the home health agency and of up to

20  four entities licensed under this chapter or chapter 429 which

21  are owned, operated, or managed by the same corporate entity.

22  A director of nursing shall designate, in writing, for each

23  licensed entity, a qualified alternate registered nurse to

24  serve during the absence of the director of nursing.

25         (15)  "Nurse registry" means any person that procures,

26  offers, promises, or attempts to secure health-care-related

27  contracts for registered nurses, licensed practical nurses,

28  certified nursing assistants, home health aides, companions,

29  or homemakers, who are compensated by fees as independent

30  contractors, including, but not limited to, contracts for the

31  provision of services to patients and contracts to provide

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 1  private duty or staffing services to health care facilities

 2  licensed under chapter 395, or this chapter, or chapter 429,

 3  or other business entities.

 4         Section 73.  Paragraph (h) of subsection (5) of section

 5  400.464, Florida Statutes, is amended to read:

 6         400.464  Home health agencies to be licensed;

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

 8         (5)  The following are exempt from the licensure

 9  requirements of this part:

10         (h)  The delivery of assisted living facility services

11  for which the assisted living facility is licensed under part

12  III of this chapter 429, to serve its residents in its

13  facility.

14         Section 74.  Subsection (2) of section 400.497, Florida

15  Statutes, is amended to read:

16         400.497  Rules establishing minimum standards.--The

17  agency shall adopt, publish, and enforce rules to implement

18  this part, including, as applicable, ss. 400.506 and 400.509,

19  which must provide reasonable and fair minimum standards

20  relating to:

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

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

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

24  one campus, is licensed under this chapter or chapter 429, and

25  otherwise meets the requirements of law and rule.

26         Section 75.  Paragraph (c) of subsection (2) of section

27  400.556, Florida Statutes, is amended to read:

28         400.556  Denial, suspension, revocation of license;

29  administrative fines; investigations and inspections.--

30         (2)  Each of the following actions by the owner of an

31  adult day care center or by its operator or employee is a

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 1  ground for action by the agency against the owner of the

 2  center or its operator or employee:

 3         (c)  A failure of persons subject to level 2 background

 4  screening under s. 429.174 400.4174(1) to meet the screening

 5  standards of s. 435.04, or the retention by the center of an

 6  employee subject to level 1 background screening standards

 7  under s. 429.174 400.4174(2) who does not meet the screening

 8  standards of s. 435.03 and for whom exemptions from

 9  disqualification have not been provided by the agency.

10         Section 76.  Paragraph (c) of subsection (2) of section

11  400.5572, Florida Statutes, is amended to read:

12         400.5572  Background screening.--

13         (2)  The owner or administrator of an adult day care

14  center must conduct level 1 background screening as set forth

15  in chapter 435 on all employees hired on or after October 1,

16  1998, who provide basic services or supportive and optional

17  services to the participants. Such persons satisfy this

18  requirement if:

19         (c)  The person required to be screened is employed by

20  a corporation or business entity or related corporation or

21  business entity that owns, operates, or manages more than one

22  facility or agency licensed under this chapter or chapter 429,

23  and for whom a level 1 screening was conducted by the

24  corporation or business entity as a condition of initial or

25  continued employment.

26         Section 77.  Subsection (5) of section 400.601, Florida

27  Statutes, is amended to read:

28         400.601  Definitions.--As used in this part, the term:

29         (5)  "Hospice residential unit" means a homelike living

30  facility, other than a facility licensed under other parts of

31  this chapter, or under chapter 395, or under chapter 429, that

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 1  is operated by a hospice for the benefit of its patients and

 2  is considered by a patient who lives there to be his or her

 3  primary residence.

 4         Section 78.  Paragraph (c) of subsection (2) of section

 5  400.618, Florida Statutes, is amended to read:

 6         400.618  Definitions.--As used in this part, the term:

 7         (2)  "Adult family-care home" means a full-time,

 8  family-type living arrangement, in a private home, under which

 9  a person who owns or rents the home provides room, board, and

10  personal care, on a 24-hour basis, for no more than five

11  disabled adults or frail elders who are not relatives. The

12  following family-type living arrangements are not required to

13  be licensed as an adult family-care home:

14         (c)  An establishment that is licensed as an assisted

15  living facility under chapter 429 part III.

16         Section 79.  Paragraph (f) of subsection (1) of section

17  400.628, Florida Statutes, is amended to read:

18         400.628  Residents' bill of rights.--

19         (1)  A resident of an adult family-care home may not be

20  deprived of any civil or legal rights, benefits, or privileges

21  guaranteed by law, the State Constitution, or the Constitution

22  of the United States solely by reason of status as a resident

23  of the home. Each resident has the right to:

24         (f)  Manage the resident's own financial affairs unless

25  the resident or the resident's guardian authorizes the

26  provider to provide safekeeping for funds in accordance with

27  procedures equivalent to those provided in s. 429.27 400.427.

28         Section 80.  Paragraph (c) of subsection (5) of section

29  400.93, Florida Statutes, is amended to read:

30         400.93  Licensure required; exemptions; unlawful acts;

31  penalties.--

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 1         (5)  The following are exempt from home medical

 2  equipment provider licensure, unless they have a separate

 3  company, corporation, or division that is in the business of

 4  providing home medical equipment and services for sale or rent

 5  to consumers at their regular or temporary place of residence

 6  pursuant to the provisions of this part:

 7         (c)  Assisted living facilities licensed under chapter

 8  429 part III, when serving their residents.

 9         Section 81.  Subsection (3) and paragraph (c) of

10  subsection (10) of section 400.962, Florida Statutes, are

11  amended to read:

12         400.962  License required; license application.--

13         (3)  The basic license fee collected shall be deposited

14  in the Health Care Trust Fund, established for carrying out

15  the purposes of this chapter or chapter 429.

16         (10)

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

18  screening requirements of chapter 435 which has been submitted

19  within the previous 5 years in compliance with any other

20  licensure requirements under this chapter or chapter 429

21  satisfies the requirements of paragraph (a). Proof of

22  compliance with background screening which has been submitted

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

24  Financial Services Commission and the Office of Insurance

25  Regulation under chapter 651 as part of an application for a

26  certificate of authority to operate a continuing care

27  retirement community satisfies the requirements for the

28  Department of Law Enforcement and Federal Bureau of

29  Investigation background checks.

30         Section 82.  Paragraph (b) of subsection (1) of section

31  400.980, Florida Statutes, is amended to read:

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 1         400.980  Health care services pools.--

 2         (1)  As used in this section, the term:

 3         (b)  "Health care services pool" means any person,

 4  firm, corporation, partnership, or association engaged for

 5  hire in the business of providing temporary employment in

 6  health care facilities, residential facilities, and agencies

 7  for licensed, certified, or trained health care personnel

 8  including, without limitation, nursing assistants, nurses'

 9  aides, and orderlies. However, the term does not include

10  nursing registries, a facility licensed under this chapter or

11  chapter 429 400, a health care services pool established

12  within a health care facility to provide services only within

13  the confines of such facility, or any individual contractor

14  directly providing temporary services to a health care

15  facility without use or benefit of a contracting agent.

16         Section 83.  Paragraphs (a), (b), (c), and (d) of

17  subsection (4) of section 400.9905, Florida Statutes, are

18  amended to read:

19         400.9905  Definitions.--

20         (4)  "Clinic" means an entity at which health care

21  services are provided to individuals and which tenders charges

22  for reimbursement for such services, including a mobile clinic

23  and a portable equipment provider. For purposes of this part,

24  the term does not include and the licensure requirements of

25  this part do not apply to:

26         (a)  Entities licensed or registered by the state under

27  chapter 395; or entities licensed or registered by the state

28  and providing only health care services within the scope of

29  services authorized under their respective licenses granted

30  under ss. 383.30-383.335, chapter 390, chapter 394, chapter

31  397, this chapter except part XIII, chapter 429, chapter 463,

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 1  chapter 465, chapter 466, chapter 478, part I of chapter 483,

 2  chapter 484, or chapter 651; end-stage renal disease providers

 3  authorized under 42 C.F.R. part 405, subpart U; or providers

 4  certified under 42 C.F.R. part 485, subpart B or subpart H; or

 5  any entity that provides neonatal or pediatric hospital-based

 6  health care services by licensed practitioners solely within a

 7  hospital licensed under chapter 395.

 8         (b)  Entities that own, directly or indirectly,

 9  entities licensed or registered by the state pursuant to

10  chapter 395; or entities that own, directly or indirectly,

11  entities licensed or registered by the state and providing

12  only health care services within the scope of services

13  authorized pursuant to their respective licenses granted under

14  ss. 383.30-383.335, chapter 390, chapter 394, chapter 397,

15  this chapter except part XIII, chapter 429, chapter 463,

16  chapter 465, chapter 466, chapter 478, part I of chapter 483,

17  chapter 484, chapter 651; end-stage renal disease providers

18  authorized under 42 C.F.R. part 405, subpart U; or providers

19  certified under 42 C.F.R. part 485, subpart B or subpart H; or

20  any entity that provides neonatal or pediatric hospital-based

21  health care services by licensed practitioners solely within a

22  hospital licensed under chapter 395.

23         (c)  Entities that are owned, directly or indirectly,

24  by an entity licensed or registered by the state pursuant to

25  chapter 395; or entities that are owned, directly or

26  indirectly, by an entity licensed or registered by the state

27  and providing only health care services within the scope of

28  services authorized pursuant to their respective licenses

29  granted under ss. 383.30-383.335, chapter 390, chapter 394,

30  chapter 397, this chapter except part XIII, chapter 429,

31  chapter 463, chapter 465, chapter 466, chapter 478, part I of

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 1  chapter 483, chapter 484, or chapter 651; end-stage renal

 2  disease providers authorized under 42 C.F.R. part 405, subpart

 3  U; or providers certified under 42 C.F.R. part 485, subpart B

 4  or subpart H; or any entity that provides neonatal or

 5  pediatric hospital-based health care services by licensed

 6  practitioners solely within a hospital under chapter 395.

 7         (d)  Entities that are under common ownership, directly

 8  or indirectly, with an entity licensed or registered by the

 9  state pursuant to chapter 395; or entities that are under

10  common ownership, directly or indirectly, with an entity

11  licensed or registered by the state and providing only health

12  care services within the scope of services authorized pursuant

13  to their respective licenses granted under ss. 383.30-383.335,

14  chapter 390, chapter 394, chapter 397, this chapter except

15  part XIII, chapter 429, chapter 463, chapter 465, chapter 466,

16  chapter 478, part I of chapter 483, chapter 484, or chapter

17  651; end-stage renal disease providers authorized under 42

18  C.F.R. part 405, subpart U; or providers certified under 42

19  C.F.R. part 485, subpart B or subpart H; or any entity that

20  provides neonatal or pediatric hospital-based health care

21  services by licensed practitioners solely within a hospital

22  licensed under chapter 395.

23         Section 84.  Subsection (6) of section 400.9935,

24  Florida Statutes, is amended to read:

25         400.9935  Clinic responsibilities.--

26         (6)  Any licensed health care provider who violates

27  this part is subject to discipline in accordance with this

28  chapter or chapter 429 and his or her respective practice act.

29         Section 85.  Subsection (12) of section 401.23, Florida

30  Statutes, is amended to read:

31         401.23  Definitions.--As used in this part, the term:

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 1         (12)  "Interfacility transfer" means the transportation

 2  by ambulance of a patient between two facilities licensed

 3  under chapter 393, chapter 395, or chapter 400, or chapter

 4  429, pursuant to this part.

 5         Section 86.  Paragraph (b) of subsection (2) of section

 6  402.164, Florida Statutes, is amended to read:

 7         402.164  Legislative intent; definitions.--

 8         (2)  As used in ss. 402.164-402.167, the term:

 9         (b)  "Client" means a client as defined in s. 393.063,

10  s. 394.67, s. 397.311, or s. 400.960, a forensic client or

11  client as defined in s. 916.106, a child or youth as defined

12  in s. 39.01, a child as defined in s. 827.01, a family as

13  defined in s. 414.0252, a participant as defined in s.

14  400.551, a resident as defined in s. 429.02 400.402, a

15  Medicaid recipient or recipient as defined in s. 409.901, a

16  child receiving child care as defined in s. 402.302, a

17  disabled adult as defined in s. 410.032 or s. 410.603, or a

18  victim as defined in s. 39.01 or s. 415.102 as each definition

19  applies within its respective chapter.

20         Section 87.  Paragraph (b) of subsection (2) of section

21  408.033, Florida Statutes, is amended to read:

22         408.033  Local and state health planning.--

23         (2)  FUNDING.--

24         (b)1.  A hospital licensed under chapter 395, a nursing

25  home licensed under chapter 400, and an assisted living

26  facility licensed under chapter 429 400 shall be assessed an

27  annual fee based on number of beds.

28         2.  All other facilities and organizations listed in

29  paragraph (a) shall each be assessed an annual fee of $150.

30         3.  Facilities operated by the Department of Children

31  and Family Services, the Department of Health, or the

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 1  Department of Corrections and any hospital which meets the

 2  definition of rural hospital pursuant to s. 395.602 are exempt

 3  from the assessment required in this subsection.

 4         Section 88.  Subsection (3) of section 408.831, Florida

 5  Statutes, is amended to read:

 6         408.831  Denial, suspension, or revocation of a

 7  license, registration, certificate, or application.--

 8         (3)  This section provides standards of enforcement

 9  applicable to all entities licensed or regulated by the Agency

10  for Health Care Administration. This section controls over any

11  conflicting provisions of chapters 39, 381, 383, 390, 391,

12  393, 394, 395, 400, 408, 429, 468, 483, and 641 or rules

13  adopted pursuant to those chapters.

14         Section 89.  Subsection (2) of section 409.212, Florida

15  Statutes, is amended to read:

16         409.212  Optional supplementation.--

17         (2)  The base rate of payment for optional state

18  supplementation shall be established by the department within

19  funds appropriated. Additional amounts may be provided for

20  mental health residents in facilities designed to provide

21  limited mental health services as provided for in s. 429.075

22  400.4075. The base rate of payment does not include the

23  personal needs allowance.

24         Section 90.  Subsection (7) and paragraph (a) of

25  subsection (8) of section 409.907, Florida Statutes, are

26  amended to read:

27         409.907  Medicaid provider agreements.--The agency may

28  make payments for medical assistance and related services

29  rendered to Medicaid recipients only to an individual or

30  entity who has a provider agreement in effect with the agency,

31  who is performing services or supplying goods in accordance

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 1  with federal, state, and local law, and who agrees that no

 2  person shall, on the grounds of handicap, race, color, or

 3  national origin, or for any other reason, be subjected to

 4  discrimination under any program or activity for which the

 5  provider receives payment from the agency.

 6         (7)  The agency may require, as a condition of

 7  participating in the Medicaid program and before entering into

 8  the provider agreement, that the provider submit information,

 9  in an initial and any required renewal applications,

10  concerning the professional, business, and personal background

11  of the provider and permit an onsite inspection of the

12  provider's service location by agency staff or other personnel

13  designated by the agency to perform this function. The agency

14  shall perform a random onsite inspection, within 60 days after

15  receipt of a fully complete new provider's application, of the

16  provider's service location prior to making its first payment

17  to the provider for Medicaid services to determine the

18  applicant's ability to provide the services that the applicant

19  is proposing to provide for Medicaid reimbursement. The agency

20  is not required to perform an onsite inspection of a provider

21  or program that is licensed by the agency, that provides

22  services under waiver programs for home and community-based

23  services, or that is licensed as a medical foster home by the

24  Department of Children and Family Services. As a continuing

25  condition of participation in the Medicaid program, a provider

26  shall immediately notify the agency of any current or pending

27  bankruptcy filing. Before entering into the provider

28  agreement, or as a condition of continuing participation in

29  the Medicaid program, the agency may also require that

30  Medicaid providers reimbursed on a fee-for-services basis or

31  fee schedule basis which is not cost-based, post a surety bond

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 1  not to exceed $50,000 or the total amount billed by the

 2  provider to the program during the current or most recent

 3  calendar year, whichever is greater. For new providers, the

 4  amount of the surety bond shall be determined by the agency

 5  based on the provider's estimate of its first year's billing.

 6  If the provider's billing during the first year exceeds the

 7  bond amount, the agency may require the provider to acquire an

 8  additional bond equal to the actual billing level of the

 9  provider. A provider's bond shall not exceed $50,000 if a

10  physician or group of physicians licensed under chapter 458,

11  chapter 459, or chapter 460 has a 50 percent or greater

12  ownership interest in the provider or if the provider is an

13  assisted living facility licensed under part III of chapter

14  429 400. The bonds permitted by this section are in addition

15  to the bonds referenced in s. 400.179(4)(d). If the provider

16  is a corporation, partnership, association, or other entity,

17  the agency may require the provider to submit information

18  concerning the background of that entity and of any principal

19  of the entity, including any partner or shareholder having an

20  ownership interest in the entity equal to 5 percent or

21  greater, and any treating provider who participates in or

22  intends to participate in Medicaid through the entity. The

23  information must include:

24         (a)  Proof of holding a valid license or operating

25  certificate, as applicable, if required by the state or local

26  jurisdiction in which the provider is located or if required

27  by the Federal Government.

28         (b)  Information concerning any prior violation, fine,

29  suspension, termination, or other administrative action taken

30  under the Medicaid laws, rules, or regulations of this state

31  or of any other state or the Federal Government; any prior

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 1  violation of the laws, rules, or regulations relating to the

 2  Medicare program; any prior violation of the rules or

 3  regulations of any other public or private insurer; and any

 4  prior violation of the laws, rules, or regulations of any

 5  regulatory body of this or any other state.

 6         (c)  Full and accurate disclosure of any financial or

 7  ownership interest that the provider, or any principal,

 8  partner, or major shareholder thereof, may hold in any other

 9  Medicaid provider or health care related entity or any other

10  entity that is licensed by the state to provide health or

11  residential care and treatment to persons.

12         (d)  If a group provider, identification of all members

13  of the group and attestation that all members of the group are

14  enrolled in or have applied to enroll in the Medicaid program.

15         (8)(a)  Each provider, or each principal of the

16  provider if the provider is a corporation, partnership,

17  association, or other entity, seeking to participate in the

18  Medicaid program must submit a complete set of his or her

19  fingerprints to the agency for the purpose of conducting a

20  criminal history record check.  Principals of the provider

21  include any officer, director, billing agent, managing

22  employee, or affiliated person, or any partner or shareholder

23  who has an ownership interest equal to 5 percent or more in

24  the provider. However, a director of a not-for-profit

25  corporation or organization is not a principal for purposes of

26  a background investigation as required by this section if the

27  director: serves solely in a voluntary capacity for the

28  corporation or organization, does not regularly take part in

29  the day-to-day operational decisions of the corporation or

30  organization, receives no remuneration from the not-for-profit

31  corporation or organization for his or her service on the

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 1  board of directors, has no financial interest in the

 2  not-for-profit corporation or organization, and has no family

 3  members with a financial interest in the not-for-profit

 4  corporation or organization; and if the director submits an

 5  affidavit, under penalty of perjury, to this effect to the

 6  agency and the not-for-profit corporation or organization

 7  submits an affidavit, under penalty of perjury, to this effect

 8  to the agency as part of the corporation's or organization's

 9  Medicaid provider agreement application. Notwithstanding the

10  above, the agency may require a background check for any

11  person reasonably suspected by the agency to have been

12  convicted of a crime. This subsection shall not apply to:

13         1.  A hospital licensed under chapter 395;

14         2.  A nursing home licensed under chapter 400;

15         3.  A hospice licensed under chapter 400;

16         4.  An assisted living facility licensed under chapter

17  429 400.

18         5.  A unit of local government, except that

19  requirements of this subsection apply to nongovernmental

20  providers and entities when contracting with the local

21  government to provide Medicaid services. The actual cost of

22  the state and national criminal history record checks must be

23  borne by the nongovernmental provider or entity; or

24         6.  Any business that derives more than 50 percent of

25  its revenue from the sale of goods to the final consumer, and

26  the business or its controlling parent either is required to

27  file a form 10-K or other similar statement with the

28  Securities and Exchange Commission or has a net worth of $50

29  million or more.

30         Section 91.  Section 410.031, Florida Statutes, is

31  amended to read:

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 1         410.031  Legislative intent.--It is the intent of the

 2  Legislature to encourage the provision of care for disabled

 3  adults in family-type living arrangements in private homes as

 4  an alternative to institutional or nursing home care for such

 5  persons. The provisions of ss. 410.031-410.036 are intended to

 6  be supplemental to the provisions of chapters chapter 400 and

 7  429, relating to the licensing and regulation of nursing homes

 8  and assisted living facilities, and do not exempt any person

 9  who is otherwise subject to regulation under chapter 400 or

10  chapter 429.

11         Section 92.  Section 410.034, Florida Statutes, is

12  amended to read:

13         410.034  Department determination of fitness to provide

14  home care.--In accordance with s. 429.02 400.402, a person

15  caring for an adult who is related to such person by blood or

16  marriage is not subject to the Assisted Living Facilities Act.

17  If, however, the person who plans to provide home care under

18  this act is found by the department to be unable to provide

19  this care, the department shall notify the person wishing to

20  provide home care of this determination, and the person shall

21  not be eligible for subsidy payments under ss.

22  410.031-410.036.

23         Section 93.  Section 415.1111, Florida Statutes, is

24  amended to read:

25         415.1111  Civil actions.--A vulnerable adult who has

26  been abused, neglected, or exploited as specified in this

27  chapter has a cause of action against any perpetrator and may

28  recover actual and punitive damages for such abuse, neglect,

29  or exploitation.  The action may be brought by the vulnerable

30  adult, or that person's guardian, by a person or organization

31  acting on behalf of the vulnerable adult with the consent of

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 1  that person or that person's guardian, or by the personal

 2  representative of the estate of a deceased victim without

 3  regard to whether the cause of death resulted from the abuse,

 4  neglect, or exploitation. The action may be brought in any

 5  court of competent jurisdiction to enforce such action and to

 6  recover actual and punitive damages for any deprivation of or

 7  infringement on the rights of a vulnerable adult.  A party who

 8  prevails in any such action may be entitled to recover

 9  reasonable attorney's fees, costs of the action, and damages.

10  The remedies provided in this section are in addition to and

11  cumulative with other legal and administrative remedies

12  available to a vulnerable adult. Notwithstanding the

13  foregoing, any civil action for damages against any licensee

14  or entity who establishes, controls, conducts, manages, or

15  operates a facility licensed under part II of chapter 400

16  relating to its operation of the licensed facility shall be

17  brought pursuant to s. 400.023, or against any licensee or

18  entity who establishes, controls, conducts, manages, or

19  operates a facility licensed under part III of chapter 429 400

20  relating to its operation of the licensed facility shall be

21  brought pursuant to s. 429.29 400.429. Such licensee or entity

22  shall not be vicariously liable for the acts or omissions of

23  its employees or agents or any other third party in an action

24  brought under this section.

25         Section 94.  Section 430.601, Florida Statutes, is

26  amended to read:

27         430.601  Home care for the elderly; legislative

28  intent.--It is the intent of the Legislature to encourage the

29  provision of care for the elderly in family-type living

30  arrangements in private homes as an alternative to

31  institutional or nursing home care for such persons. The

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 1  provisions of ss. 430.601-430.606 are intended to be

 2  supplemental to the provisions of chapters chapter 400 and

 3  429, relating to the licensing and regulation of nursing homes

 4  and assisted living facilities, and do not exempt any person

 5  who is otherwise subject to regulation under those chapters

 6  the provisions of that chapter.

 7         Section 95.  Subsection (7) of section 430.703, Florida

 8  Statutes, is amended to read:

 9         430.703  Definitions.--As used in this act, the term:

10         (7)  "Other qualified provider" means an entity

11  licensed under chapter 400 or chapter 429 that demonstrates a

12  long-term care continuum and meets all requirements pursuant

13  to an interagency agreement between the agency and the

14  department.

15         Section 96.  Paragraph (a) of subsection (3) of section

16  435.03, Florida Statutes, is amended to read:

17         435.03  Level 1 screening standards.--

18         (3)  Standards must also ensure that the person:

19         (a)  For employees and employers licensed or registered

20  pursuant to chapter 400 or chapter 429, and for employees and

21  employers of developmental services institutions as defined in

22  s. 393.063, intermediate care facilities for the

23  developmentally disabled as defined in s. 393.063, and mental

24  health treatment facilities as defined in s. 394.455, meets

25  the requirements of this chapter.

26         Section 97.  Paragraph (a) of subsection (4) of section

27  435.04, Florida Statutes, is amended to read:

28         435.04  Level 2 screening standards.--

29         (4)  Standards must also ensure that the person:

30         (a)  For employees or employers licensed or registered

31  pursuant to chapter 400 or chapter 429, does not have a

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 1  confirmed report of abuse, neglect, or exploitation as defined

 2  in s. 415.102(6), which has been uncontested or upheld under

 3  s. 415.103.

 4         Section 98.  Paragraph (g) of subsection (1) of section

 5  440.13, Florida Statutes, is amended to read:

 6         440.13  Medical services and supplies; penalty for

 7  violations; limitations.--

 8         (1)  DEFINITIONS.--As used in this section, the term:

 9         (g)  "Health care facility" means any hospital licensed

10  under chapter 395 and any health care institution licensed

11  under chapter 400 or chapter 429.

12         Section 99.  Paragraph (b) of subsection (1) of section

13  456.0375, Florida Statutes, is amended to read:

14         456.0375  Registration of certain clinics;

15  requirements; discipline; exemptions.--

16         (1)

17         (b)  For purposes of this section, the term "clinic"

18  does not include and the registration requirements herein do

19  not apply to:

20         1.  Entities licensed or registered by the state

21  pursuant to chapter 390, chapter 394, chapter 395, chapter

22  397, chapter 400, chapter 429, chapter 463, chapter 465,

23  chapter 466, chapter 478, chapter 480, chapter 484, or chapter

24  651.

25         2.  Entities that own, directly or indirectly, entities

26  licensed or registered by the state pursuant to chapter 390,

27  chapter 394, chapter 395, chapter 397, chapter 400, chapter

28  429, chapter 463, chapter 465, chapter 466, chapter 478,

29  chapter 480, chapter 484, or chapter 651.

30         3.  Entities that are owned, directly or indirectly, by

31  an entity licensed or registered by the state pursuant to

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 1  chapter 390, chapter 394, chapter 395, chapter 397, chapter

 2  400, chapter 429, chapter 463, chapter 465, chapter 466,

 3  chapter 478, chapter 480, chapter 484, or chapter 651.

 4         4.  Entities that are under common ownership, directly

 5  or indirectly, with an entity licensed or registered by the

 6  state pursuant to chapter 390, chapter 394, chapter 395,

 7  chapter 397, chapter 400, chapter 429, chapter 463, chapter

 8  465, chapter 466, chapter 478, chapter 480, chapter 484, or

 9  chapter 651.

10         5.  Entities exempt from federal taxation under 26

11  U.S.C. s. 501(c)(3) and community college and university

12  clinics.

13         6.  Sole proprietorships, group practices,

14  partnerships, or corporations that provide health care

15  services by licensed health care practitioners pursuant to

16  chapters 457, 458, 459, 460, 461, 462, 463, 466, 467, 484,

17  486, 490, 491, or part I, part III, part X, part XIII, or part

18  XIV of chapter 468, or s. 464.012, which are wholly owned by

19  licensed health care practitioners or the licensed health care

20  practitioner and the spouse, parent, or child of a licensed

21  health care practitioner, so long as one of the owners who is

22  a licensed health care practitioner is supervising the

23  services performed therein and is legally responsible for the

24  entity's compliance with all federal and state laws. However,

25  no health care practitioner may supervise services beyond the

26  scope of the practitioner's license.

27         7.  Clinical facilities affiliated with an accredited

28  medical school at which training is provided for medical

29  students, residents, or fellows.

30         Section 100.  Subsection (1) of section 465.0235,

31  Florida Statutes, is amended to read:

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 1         465.0235  Automated pharmacy systems used by long-term

 2  care facilities, hospices, or state correctional

 3  institutions.--

 4         (1)  A pharmacy may provide pharmacy services to a

 5  long-term care facility or hospice licensed under chapter 400

 6  or chapter 429 or a state correctional institution operated

 7  under chapter 944 through the use of an automated pharmacy

 8  system that need not be located at the same location as the

 9  pharmacy.

10         Section 101.  Paragraph (k) of subsection (1) of

11  section 468.505, Florida Statutes, is amended to read:

12         468.505  Exemptions; exceptions.--

13         (1)  Nothing in this part may be construed as

14  prohibiting or restricting the practice, services, or

15  activities of:

16         (k)  A person employed by a hospital licensed under

17  chapter 395, or by a nursing home or assisted living facility

18  licensed under part II or part III of chapter 400 or under

19  chapter 429, or by a continuing care facility certified under

20  chapter 651, if the person is employed in compliance with the

21  laws and rules adopted thereunder regarding the operation of

22  its dietetic department.

23         Section 102.  Subsection (11) of section 477.025,

24  Florida Statutes, is amended to read:

25         477.025  Cosmetology salons; specialty salons;

26  requisites; licensure; inspection; mobile cosmetology

27  salons.--

28         (11)  Facilities licensed under part II or part III of

29  chapter 400 or under chapter 429 shall be exempt from the

30  provisions of this section and a cosmetologist licensed

31  

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 1  pursuant to s. 477.019 may provide salon services exclusively

 2  for facility residents.

 3         Section 103.  Paragraph (a) of subsection (2) of

 4  section 509.032, Florida Statutes, is amended to read:

 5         509.032  Duties.--

 6         (2)  INSPECTION OF PREMISES.--

 7         (a)  The division has responsibility and jurisdiction

 8  for all inspections required by this chapter.  The division

 9  has responsibility for quality assurance.  Each licensed

10  establishment shall be inspected at least biannually, except

11  for transient and nontransient apartments, which shall be

12  inspected at least annually, and shall be inspected at such

13  other times as the division determines is necessary to ensure

14  the public's health, safety, and welfare.  The division shall

15  establish a system to determine inspection frequency.  Public

16  lodging units classified as resort condominiums or resort

17  dwellings are not subject to this requirement, but shall be

18  made available to the division upon request.  If, during the

19  inspection of a public lodging establishment classified for

20  renting to transient or nontransient tenants, an inspector

21  identifies vulnerable adults who appear to be victims of

22  neglect, as defined in s. 415.102, or, in the case of a

23  building that is not equipped with automatic sprinkler

24  systems, tenants or clients who may be unable to self-preserve

25  in an emergency, the division shall convene meetings with the

26  following agencies as appropriate to the individual situation:

27  the Department of Health, the Department of Elderly Affairs,

28  the area agency on aging, the local fire marshal, the landlord

29  and affected tenants and clients, and other relevant

30  organizations, to develop a plan which improves the prospects

31  for safety of affected residents and, if necessary, identifies

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 1  alternative living arrangements such as facilities licensed

 2  under part II or part III of chapter 400 or under chapter 429.

 3         Section 104.  Subsection (1) of section 509.241,

 4  Florida Statutes, is amended to read:

 5         509.241  Licenses required; exceptions.--

 6         (1)  LICENSES; ANNUAL RENEWALS.--Each public lodging

 7  establishment and public food service establishment shall

 8  obtain a license from the division. Such license may not be

 9  transferred from one place or individual to another. It shall

10  be a misdemeanor of the second degree, punishable as provided

11  in s. 775.082 or s. 775.083, for such an establishment to

12  operate without a license. Local law enforcement shall provide

13  immediate assistance in pursuing an illegally operating

14  establishment. The division may refuse a license, or a renewal

15  thereof, to any establishment that is not constructed and

16  maintained in accordance with law and with the rules of the

17  division. The division may refuse to issue a license, or a

18  renewal thereof, to any establishment an operator of which,

19  within the preceding 5 years, has been adjudicated guilty of,

20  or has forfeited a bond when charged with, any crime

21  reflecting on professional character, including soliciting for

22  prostitution, pandering, letting premises for prostitution,

23  keeping a disorderly place, or illegally dealing in controlled

24  substances as defined in chapter 893, whether in this state or

25  in any other jurisdiction within the United States, or has had

26  a license denied, revoked, or suspended pursuant to s. 429.14

27  400.414. Licenses shall be renewed annually, and the division

28  shall adopt a rule establishing a staggered schedule for

29  license renewals. If any license expires while administrative

30  charges are pending against the license, the proceedings

31  

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 1  against the license shall continue to conclusion as if the

 2  license were still in effect.

 3         Section 105.  Subsection (1) of section 627.732,

 4  Florida Statutes, is amended to read:

 5         627.732  Definitions.--As used in ss. 627.730-627.7405,

 6  the term:

 7         (1)  "Broker" means any person not possessing a license

 8  under chapter 395, chapter 400, chapter 429, chapter 458,

 9  chapter 459, chapter 460, chapter 461, or chapter 641 who

10  charges or receives compensation for any use of medical

11  equipment and is not the 100-percent owner or the 100-percent

12  lessee of such equipment. For purposes of this section, such

13  owner or lessee may be an individual, a corporation, a

14  partnership, or any other entity and any of its

15  100-percent-owned affiliates and subsidiaries. For purposes of

16  this subsection, the term "lessee" means a long-term lessee

17  under a capital or operating lease, but does not include a

18  part-time lessee. The term "broker" does not include a

19  hospital or physician management company whose medical

20  equipment is ancillary to the practices managed, a debt

21  collection agency, or an entity that has contracted with the

22  insurer to obtain a discounted rate for such services; nor

23  does the term include a management company that has contracted

24  to provide general management services for a licensed

25  physician or health care facility and whose compensation is

26  not materially affected by the usage or frequency of usage of

27  medical equipment or an entity that is 100-percent owned by

28  one or more hospitals or physicians. The term "broker" does

29  not include a person or entity that certifies, upon request of

30  an insurer, that:

31  

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 1         (a)  It is a clinic registered under s. 456.0375 or

 2  licensed under ss. 400.990-400.995;

 3         (b)  It is a 100-percent owner of medical equipment;

 4  and

 5         (c)  The owner's only part-time lease of medical

 6  equipment for personal injury protection patients is on a

 7  temporary basis not to exceed 30 days in a 12-month period,

 8  and such lease is solely for the purposes of necessary repair

 9  or maintenance of the 100-percent-owned medical equipment or

10  pending the arrival and installation of the newly purchased or

11  a replacement for the 100-percent-owned medical equipment, or

12  for patients for whom, because of physical size or

13  claustrophobia, it is determined by the medical director or

14  clinical director to be medically necessary that the test be

15  performed in medical equipment that is open-style. The leased

16  medical equipment cannot be used by patients who are not

17  patients of the registered clinic for medical treatment of

18  services. Any person or entity making a false certification

19  under this subsection commits insurance fraud as defined in s.

20  817.234. However, the 30-day period provided in this paragraph

21  may be extended for an additional 60 days as applicable to

22  magnetic resonance imaging equipment if the owner certifies

23  that the extension otherwise complies with this paragraph.

24         Section 106.  Subsection (2) of section 651.011,

25  Florida Statutes, is amended to read:

26         651.011  Definitions.--For the purposes of this

27  chapter, the term:

28         (2)  "Continuing care" or "care" means furnishing

29  pursuant to a contract shelter and either nursing care or

30  personal services as defined in s. 429.02 400.402, whether

31  such nursing care or personal services are provided in the

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 1  facility or in another setting designated by the contract for

 2  continuing care, to an individual not related by consanguinity

 3  or affinity to the provider furnishing such care, upon payment

 4  of an entrance fee. Other personal services provided shall be

 5  designated in the continuing care contract. Contracts to

 6  provide continuing care include agreements to provide care for

 7  any duration, including contracts that are terminable by

 8  either party.

 9         Section 107.  Paragraph (c) of subsection (2) of

10  section 651.022, Florida Statutes, is amended to read:

11         651.022  Provisional certificate of authority;

12  application.--

13         (2)  The application for a provisional certificate of

14  authority shall be on a form prescribed by the commission and

15  shall contain the following information:

16         (c)1.  Evidence that the applicant is reputable and of

17  responsible character.  If the applicant is a firm,

18  association, organization, partnership, business trust,

19  corporation, or company, the form shall require evidence that

20  the members or shareholders are reputable and of responsible

21  character, and the person in charge of providing care under a

22  certificate of authority shall likewise be required to produce

23  evidence of being reputable and of responsible character.

24         2.  Evidence satisfactory to the office of the ability

25  of the applicant to comply with the provisions of this chapter

26  and with rules adopted by the commission pursuant to this

27  chapter.

28         3.  A statement of whether a person identified in the

29  application for a provisional certificate of authority or the

30  administrator or manager of the facility, if such person has

31  

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 1  been designated, or any such person living in the same

 2  location:

 3         a.  Has been convicted of a felony or has pleaded nolo

 4  contendere to a felony charge, or has been held liable or has

 5  been enjoined in a civil action by final judgment, if the

 6  felony or civil action involved fraud, embezzlement,

 7  fraudulent conversion, or misappropriation of property.

 8         b.  Is subject to a currently effective injunctive or

 9  restrictive order or federal or state administrative order

10  relating to business activity or health care as a result of an

11  action brought by a public agency or department, including,

12  without limitation, an action affecting a license under

13  chapter 400 or chapter 429.

14  

15  The statement shall set forth the court or agency, the date of

16  conviction or judgment, and the penalty imposed or damages

17  assessed, or the date, nature, and issuer of the

18  order.  Before determining whether a provisional certificate

19  of authority is to be issued, the office may make an inquiry

20  to determine the accuracy of the information submitted

21  pursuant to subparagraphs 1. and 2.

22         Section 108.  Subsection (6) of section 651.023,

23  Florida Statutes, is amended to read:

24         651.023  Certificate of authority; application.--

25         (6)  The timeframes provided under s. 651.022(5) and

26  (6) apply to applications submitted under s. 651.021(2). The

27  office may not issue a certificate of authority under this

28  chapter to any facility which does not have a component which

29  is to be licensed pursuant to part II or part III of chapter

30  400 or to chapter 429 or which will not offer personal

31  services or nursing services through written contractual

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 1  agreement. Any written contractual agreement must be disclosed

 2  in the continuing care contract and is subject to the

 3  provisions of s. 651.1151, relating to administrative, vendor,

 4  and management contracts.

 5         Section 109.  Subsection (8) of section 651.055,

 6  Florida Statutes, is amended to read:

 7         651.055  Contracts; right to rescind.--

 8         (8)  The provisions of this section shall control over

 9  any conflicting provisions contained in part II or part III of

10  chapter 400 or in chapter 429.

11         Section 110.  Subsection (5) of section 651.095,

12  Florida Statutes, is amended to read:

13         651.095  Advertisements; requirements; penalties.--

14         (5)  The provisions of this section shall control over

15  any conflicting provisions contained in part II or part III of

16  chapter 400 or in chapter 429.

17         Section 111.  Subsections (1), (4), (6), and (8) of

18  section 651.118, Florida Statutes, are amended to read:

19         651.118  Agency for Health Care Administration;

20  certificates of need; sheltered beds; community beds.--

21         (1)  The provisions of this section shall control in

22  the case of conflict with the provisions of the Health

23  Facility and Services Development Act, ss. 408.031-408.045;

24  the provisions of chapter 395; or the provisions of part II

25  parts II and III of chapter 400; or the provisions of chapter

26  429.

27         (4)  The Agency for Health Care Administration shall

28  approve one sheltered nursing home bed for every four proposed

29  residential units, including those that are licensed under

30  chapter 429 part III of chapter 400, in the continuing care

31  facility unless the provider demonstrates the need for a

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 1  lesser number of sheltered nursing home beds based on proposed

 2  utilization by prospective residents or demonstrates the need

 3  for additional sheltered nursing home beds based on actual

 4  utilization and demand by current residents.

 5         (6)  Unless the provider already has a component that

 6  is to be a part of the continuing care facility and that is

 7  licensed under chapter 395, or part II or part III of chapter

 8  400, or chapter 429 at the time of construction of the

 9  continuing care facility, the provider must construct the

10  nonnursing home portion of the facility and the nursing home

11  portion of the facility at the same time. If a provider

12  constructs less than the number of residential units approved

13  in the certificate of authority, the number of licensed

14  sheltered nursing home beds shall be reduced by a

15  proportionate share.

16         (8)  A provider may petition the Agency for Health Care

17  Administration to use a designated number of sheltered nursing

18  home beds to provide extended congregate care as defined in s.

19  429.02 400.402 if the beds are in a distinct area of the

20  nursing home which can be adapted to meet the requirements for

21  extended congregate care. The provider may subsequently use

22  such beds as sheltered beds after notifying the agency of the

23  intended change. Any sheltered beds used to provide extended

24  congregate care pursuant to this subsection may not qualify

25  for funding under the Medicaid waiver. Any sheltered beds used

26  to provide extended congregate care pursuant to this

27  subsection may share common areas, services, and staff with

28  beds designated for nursing home care, provided that all of

29  the beds are under common ownership. For the purposes of this

30  subsection, fire and life safety codes applicable to nursing

31  home facilities shall apply.

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 1         Section 112.  Subsection (2) of section 765.1103,

 2  Florida Statutes, is amended to read:

 3         765.1103  Pain management and palliative care.--

 4         (2)  Health care providers and practitioners regulated

 5  under chapter 458, chapter 459, or chapter 464 must, as

 6  appropriate, comply with a request for pain management or

 7  palliative care from a patient under their care or, for an

 8  incapacitated patient under their care, from a surrogate,

 9  proxy, guardian, or other representative permitted to make

10  health care decisions for the incapacitated patient.

11  Facilities regulated under chapter 395, or chapter 400, or

12  chapter 429 must comply with the pain management or palliative

13  care measures ordered by the patient's physician.

14         Section 113.  Subsection (2) of section 765.205,

15  Florida Statutes, is amended to read:

16         765.205  Responsibility of the surrogate.--

17         (2)  The surrogate may authorize the release of

18  information and medical records to appropriate persons to

19  ensure the continuity of the principal's health care and may

20  authorize the admission, discharge, or transfer of the

21  principal to or from a health care facility or other facility

22  or program licensed under chapter 400 or chapter 429.

23         Section 114.  Subsection (1) of section 768.735,

24  Florida Statutes, is amended to read:

25         768.735  Punitive damages; exceptions; limitation.--

26         (1)  Sections 768.72(2)-(4), 768.725, and 768.73 do not

27  apply to any civil action based upon child abuse, abuse of the

28  elderly under chapter 415, or abuse of the developmentally

29  disabled. Such actions are governed by applicable statutes and

30  controlling judicial precedent. This section does not apply to

31  claims brought pursuant to s. 400.023 or s. 429.29 400.429.

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 1         Section 115.  Paragraph (a) of subsection (4) of

 2  section 943.0585, Florida Statutes, is amended to read:

 3         943.0585  Court-ordered expunction of criminal history

 4  records.--The courts of this state have jurisdiction over

 5  their own procedures, including the maintenance, expunction,

 6  and correction of judicial records containing criminal history

 7  information to the extent such procedures are not inconsistent

 8  with the conditions, responsibilities, and duties established

 9  by this section. Any court of competent jurisdiction may order

10  a criminal justice agency to expunge the criminal history

11  record of a minor or an adult who complies with the

12  requirements of this section. The court shall not order a

13  criminal justice agency to expunge a criminal history record

14  until the person seeking to expunge a criminal history record

15  has applied for and received a certificate of eligibility for

16  expunction pursuant to subsection (2). A criminal history

17  record that relates to a violation of s. 393.135, s. 394.4593,

18  s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 817.034, s.

19  825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,

20  s. 847.0145, s. 893.135,  s. 916.1075, or a violation

21  enumerated in s. 907.041 may not be expunged, without regard

22  to whether adjudication was withheld, if the defendant was

23  found guilty of or pled guilty or nolo contendere to the

24  offense, or if the defendant, as a minor, was found to have

25  committed, or pled guilty or nolo contendere to committing,

26  the offense as a delinquent act. The court may only order

27  expunction of a criminal history record pertaining to one

28  arrest or one incident of alleged criminal activity, except as

29  provided in this section. The court may, at its sole

30  discretion, order the expunction of a criminal history record

31  pertaining to more than one arrest if the additional arrests

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 1  directly relate to the original arrest. If the court intends

 2  to order the expunction of records pertaining to such

 3  additional arrests, such intent must be specified in the

 4  order. A criminal justice agency may not expunge any record

 5  pertaining to such additional arrests if the order to expunge

 6  does not articulate the intention of the court to expunge a

 7  record pertaining to more than one arrest. This section does

 8  not prevent the court from ordering the expunction of only a

 9  portion of a criminal history record pertaining to one arrest

10  or one incident of alleged criminal activity. Notwithstanding

11  any law to the contrary, a criminal justice agency may comply

12  with laws, court orders, and official requests of other

13  jurisdictions relating to expunction, correction, or

14  confidential handling of criminal history records or

15  information derived therefrom. This section does not confer

16  any right to the expunction of any criminal history record,

17  and any request for expunction of a criminal history record

18  may be denied at the sole discretion of the court.

19         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

20  criminal history record of a minor or an adult which is

21  ordered expunged by a court of competent jurisdiction pursuant

22  to this section must be physically destroyed or obliterated by

23  any criminal justice agency having custody of such record;

24  except that any criminal history record in the custody of the

25  department must be retained in all cases. A criminal history

26  record ordered expunged that is retained by the department is

27  confidential and exempt from the provisions of s. 119.07(1)

28  and s. 24(a), Art. I of the State Constitution and not

29  available to any person or entity except upon order of a court

30  of competent jurisdiction. A criminal justice agency may

31  

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 1  retain a notation indicating compliance with an order to

 2  expunge.

 3         (a)  The person who is the subject of a criminal

 4  history record that is expunged under this section or under

 5  other provisions of law, including former s. 893.14, former s.

 6  901.33, and former s. 943.058, may lawfully deny or fail to

 7  acknowledge the arrests covered by the expunged record, except

 8  when the subject of the record:

 9         1.  Is a candidate for employment with a criminal

10  justice agency;

11         2.  Is a defendant in a criminal prosecution;

12         3.  Concurrently or subsequently petitions for relief

13  under this section or s. 943.059;

14         4.  Is a candidate for admission to The Florida Bar;

15         5.  Is seeking to be employed or licensed by or to

16  contract with the Department of Children and Family Services

17  or the Department of Juvenile Justice or to be employed or

18  used by such contractor or licensee in a sensitive position

19  having direct contact with children, the developmentally

20  disabled, the aged, or the elderly as provided in s.

21  110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.

22  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

23  916.106(10) and (13), s. 985.407, or chapter 400, or chapter

24  429; or

25         6.  Is seeking to be employed or licensed by the

26  Department of Education, any district school board, any

27  university laboratory school, any charter school, any private

28  or parochial school, or any local governmental entity that

29  licenses child care facilities.

30         Section 116.  The Division of Statutory Revision of the

31  Office of Legislative Services shall prepare a reviser's bill

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 1  for introduction at a subsequent session of the Legislature to

 2  conform the Florida Statutes to changes made by this act.

 3         Section 117.  This act shall take effect July 1, 2005.

 4  

 5          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 6                         Senate Bill 1836

 7                                 

 8  Transfers all sections of parts III, V, and VII of ch. 400,
    F.S., to the newly created ch. 429, F.S.
 9  
    Makes statutory revisions needed to accurately transfer part
10  III of ch. 400, F.S., to the new chapter and specifies each of
    these conforming changes.
11  
    Directs the Division of Statutory Revision to prepare a
12  reviser's bill to make conforming changes to the Florida
    Statutes.
13  

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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