Senate Bill sb2390
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
By Senator Campbell
32-916C-05
1 A bill to be entitled
2 An act relating to nursing home facilities;
3 amending s. 400.021, F.S.; defining additional
4 terms related to nursing home facilities;
5 amending s. 400.023, F.S.; requiring a resident
6 or the resident's legal representative to
7 include a certificate of compliance when a
8 complaint alleging a violation of a resident's
9 rights is filed with the clerk of court;
10 amending s. 400.0233, F.S.; requiring that the
11 presuit notice of a claim against a nursing
12 home facility be given to each prospective
13 defendant; requiring that certain specified
14 information be included with the notice;
15 providing that a defendant may request
16 voluntary binding arbitration; authorizing the
17 parties to toll designated time periods in
18 order to mediate issues of liability and
19 damages; amending s. 400.0234, F.S.; specifying
20 that failing to provide certain records waives
21 certain requirements; creating s. 400.02342,
22 F.S.; providing that any party may elect to
23 participate in voluntary binding arbitration;
24 providing procedures to initiate and conduct a
25 voluntary binding arbitration; requiring that a
26 claimant agree to a damage award; providing
27 exceptions and limitations; authorizing the
28 Division of Administrative Hearings to adopt
29 rules; authorizing the division to levy
30 specified sanctions; authorizing the division
31 to charge a party requesting binding
1
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 arbitration an administrative fee; permitting
2 the parties to use private arbitrators;
3 creating s. 400.02343, F.S.; requiring multiple
4 defendants to a binding arbitration proceeding
5 to apportion a damage award through a second
6 arbitration proceeding; providing arbitration
7 procedures for apportioning damage awards;
8 providing that a participant has a cause of
9 action for contribution from other defendants;
10 creating s. 400.02344, F.S.; providing
11 consequences for a claimant or defendant that
12 fails to offer or rejects an offer to
13 participate in binding arbitration; prescribing
14 limitations if a party wishes to proceed to
15 trial; creating s. 400.02345, F.S.; providing
16 procedures for determining if a specific claim
17 is subject to binding arbitration; creating s.
18 400.02347, F.S.; requiring a defendant to pay a
19 damage award within a specified time period;
20 creating s. 400.02348, F.S.; providing for an
21 appeal of an arbitration or apportionment
22 award; providing that an appeal does not stay
23 an arbitration or apportionment award;
24 permitting a party to an arbitration or
25 apportionment proceeding to enforce an
26 arbitration award or an apportionment of
27 financial responsibility; providing enforcement
28 procedures; providing exceptions; amending s.
29 400.141, F.S.; requiring a nursing home
30 facility to maintain general and professional
31 liability insurance with specified insurance
2
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 carriers; providing alternative methods to
2 establish financial responsibility for claims
3 filed against the nursing home; directing that
4 the amount of financial responsibility be
5 increased by the annual rate of inflation;
6 providing exceptions; amending s. 400.151,
7 F.S.; providing criteria for a resident's
8 contract which include arbitration or
9 dispute-resolution provisions; requiring
10 prominent notice of arbitration provisions;
11 requiring notice of which claims are subject to
12 arbitration; amending s. 409.907, F.S.;
13 prohibiting the Agency for Health Care
14 Administration from renewing a Medicaid
15 provider agreement with a chronically
16 poor-performing nursing home facility after a
17 specified date; providing that a chronically
18 poor-performing nursing home facility may not
19 participate in voluntary binding arbitration
20 after a specified date; amending s. 409.908,
21 F.S.; deleting obsolete provisions; requiring
22 the agency to recognize increases in the costs
23 of professional liability insurance by
24 providing a pass-through of professional
25 liability insurance in a specified amount;
26 authorizing the agency to impose an assessment
27 fee for quality assurance; amending s. 400.147,
28 F.S.; conforming a cross-reference; reenacting
29 s. 430.80(3)(h), F.S., relating to a teaching
30 nursing home pilot project, to incorporate the
31 amendment made to s. 400.141, F.S., in a
3
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 reference thereto; requiring that arbitration
2 limits be adjusted annually for inflation;
3 providing legislative intent that the Agency
4 for Health Care Administration not renew a
5 Medicaid provider agreement with a nursing home
6 facility that has a pattern of harming its
7 residents; directing the agency to consult with
8 certain specified private organizations to
9 identify and improve poor-performing nursing
10 homes; requiring the agency to prepare a report
11 of the Medicaid Up-or-Out Program; providing
12 legislative intent that a study be conducted by
13 the Institute on Aging at the University of
14 South Florida of all federal and state
15 enforcement sanctions and remedies available to
16 the agency to use with nursing home facilities;
17 providing the subjects to be studied; requiring
18 that a report of the findings of the study be
19 submitted by a specified date; requiring the
20 Agency for Health Care Administration to
21 establish a health care quality improvement
22 system for nursing home facilities; providing
23 guidelines; requiring each nursing home
24 facility to pay an annual assessment on each
25 licensed bed after a specified date; providing
26 for the use of the funds collected; providing a
27 method by which the assessment will be
28 determined; providing for nonseverability;
29 providing effective dates.
30
31 Be It Enacted by the Legislature of the State of Florida:
4
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 Section 1. Section 400.021, Florida Statutes, is
2 amended to read:
3 400.021 Definitions.--When used in this part, unless
4 the context otherwise requires, the term:
5 (1) "Administrator" means the licensed individual who
6 has the general administrative charge of a facility.
7 (2) "Agency" means the Agency for Health Care
8 Administration, which is the licensing agency under this part.
9 (3) "Bed reservation policy" means the number of
10 consecutive days and the number of days per year that a
11 resident may leave the nursing home facility for overnight
12 therapeutic visits with family or friends or for
13 hospitalization for an acute condition before the licensee may
14 discharge the resident due to his or her absence from the
15 facility.
16 (4) "Board" means the Board of Nursing Home
17 Administrators.
18 (5) "Claim for resident's rights violation or
19 negligence" means a negligence claim alleging injury to or the
20 death of a resident arising out of an asserted violation of
21 the rights of a resident under s. 400.022 or an asserted
22 deviation from the applicable standard of care. At the time of
23 the filing of the notice of claim and based on information
24 provided to the claimant or claimant's representative, all
25 known incidents,regardless of origin, alleged to have caused
26 injury or damages to the resident must be included. This
27 subsection does not abrogate the rights of parties to amend
28 claims subject to the Florida Rules of Civil Procedure. No
29 further presuit requirement will be applicable if the new
30 information should have been provided to the claimant or the
31 claimant's representative.
5
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 (6) "Claimant" means a person, including a decedent's
2 estate, filing a claim for a violation of the rights of a
3 resident or negligence under this chapter. All persons
4 claiming to have sustained damages as a result of the bodily
5 injury or death of a resident are considered a single claimant
6 with the exception of minor children.
7 (7)(5) "Controlling interest" means:
8 (a) The applicant for licensure or a licensee;
9 (b) A person or entity that serves as an officer of,
10 is on the board of directors of, or has a 5 percent or greater
11 ownership interest in the management company or other entity,
12 related or unrelated, which the applicant or licensee may
13 contract with to operate the facility; or
14 (c) A person or entity that serves as an officer of,
15 is on the board of directors of, or has a 5 percent or greater
16 ownership interest in the applicant or licensee.
17
18 The term does not include a voluntary board member.
19 (8)(6) "Custodial service" means care for a person
20 which entails observation of diet and sleeping habits and
21 maintenance of a watchfulness over the general health, safety,
22 and well-being of the aged or infirm.
23 (9)(7) "Department" means the Department of Children
24 and Family Services.
25 (10) "Economic damages" means a financial loss that
26 would not have occurred but for the injury giving rise to that
27 cause of action. The term includes, but is not limited to,
28 past and future medical expenses, 80 percent of the claimant's
29 wage loss, and the loss of earning capacity to the extent the
30 claimant is entitled to recover these damages under general
31
6
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 law, including the Wrongful Death Act, s. 46.021, or s.
2 400.023.
3 (11)(8) "Facility" means any institution, building,
4 residence, private home, or other place, whether operated for
5 profit or not, including a place operated by a county or
6 municipality, which undertakes through its ownership or
7 management to provide for a period exceeding 24-hour nursing
8 care, personal care, or custodial care for three or more
9 persons not related to the owner or manager by blood or
10 marriage, who by reason of illness, physical infirmity, or
11 advanced age require such services, but does not include any
12 place providing care and treatment primarily for the acutely
13 ill. A facility offering services for fewer than three persons
14 is within the meaning of this definition if it holds itself
15 out to the public to be an establishment which regularly
16 provides such services.
17 (12) "Financial responsibility" means demonstrating
18 the minimum financial responsibility requirements as provided
19 in s. 400.141(20).
20 (13)(9) "Geriatric outpatient clinic" means a site for
21 providing outpatient health care to persons 60 years of age or
22 older, which is staffed by a registered nurse or a physician
23 assistant.
24 (14)(10) "Geriatric patient" means any patient who is
25 60 years of age or older.
26 (15) "Incident" means any event, action, or conduct
27 alleged to have caused injury or damages to the resident while
28 in the control of the facility.
29 (16) "Insurer" means any self-insurer authorized under
30 s. 627.357, liability insurance carrier, joint underwriting
31 association, or uninsured prospective defendant.
7
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 (17)(11) "Local ombudsman council" means a local
2 long-term care ombudsman council established under pursuant to
3 s. 400.0069, located within the Older Americans Act planning
4 and service areas.
5 (18) "Noneconomic damages" means nonfinancial losses
6 that would not have occurred but for the injury giving rise to
7 the cause of action, including bodily injury, pain and
8 suffering, disability, scarring, inconvenience, physical
9 impairment, mental anguish, disfigurement, loss of capacity
10 for enjoyment of life, and other nonfinancial losses to the
11 extent the claimant is entitled to recover such damages under
12 general law, including such noneconomic damages under the
13 Wrongful Death Act, s. 46.021, or s. 400.023.
14 (19)(12) "Nursing home bed" means an accommodation
15 which is ready for immediate occupancy, or is capable of being
16 made ready for occupancy within 48 hours, excluding provision
17 of staffing; and which conforms to minimum space requirements,
18 including the availability of appropriate equipment and
19 furnishings within the 48 hours, as specified by rule of the
20 agency, for the provision of services specified in this part
21 to a single resident.
22 (20)(13) "Nursing home facility" means any facility
23 which provides nursing services as defined in part I of
24 chapter 464 and which is licensed according to this part.
25 (21)(14) "Nursing service" means such services or acts
26 as may be rendered, directly or indirectly, to and in behalf
27 of a person by individuals as defined in s. 464.003.
28 (22)(15) "Planning and service area" means the
29 geographic area in which the Older Americans Act programs are
30 administered and services are delivered by the Department of
31 Elderly Affairs.
8
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 (23)(16) "Respite care" means admission to a nursing
2 home for the purpose of providing a short period of rest or
3 relief or emergency alternative care for the primary caregiver
4 of an individual receiving care at home who, without
5 home-based care, would otherwise require institutional care.
6 (24)(17) "Resident care plan" means a written plan
7 developed, maintained, and reviewed not less than quarterly by
8 a registered nurse, with participation from other facility
9 staff and the resident or his or her designee or legal
10 representative, which includes a comprehensive assessment of
11 the needs of an individual resident; the type and frequency of
12 services required to provide the necessary care for the
13 resident to attain or maintain the highest practicable
14 physical, mental, and psychosocial well-being; a listing of
15 services provided within or outside the facility to meet those
16 needs; and an explanation of service goals. The resident care
17 plan must be signed by the director of nursing or another
18 registered nurse employed by the facility to whom
19 institutional responsibilities have been delegated and by the
20 resident, the resident's designee, or the resident's legal
21 representative. The facility may not use an agency or
22 temporary registered nurse to satisfy the foregoing
23 requirement and must document the institutional
24 responsibilities that have been delegated to the registered
25 nurse.
26 (25)(18) "Resident designee" means a person, other
27 than the owner, administrator, or employee of the facility,
28 designated in writing by a resident or a resident's guardian,
29 if the resident is adjudicated incompetent, to be the
30 resident's representative for a specific, limited purpose.
31
9
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 (26)(19) "State ombudsman council" means the State
2 Long-Term Care Ombudsman Council established under pursuant to
3 s. 400.0067.
4 (27)(20) "Voluntary board member" means a director of
5 a not-for-profit corporation or organization who serves solely
6 in a voluntary capacity for the corporation or organization,
7 does not receive any remuneration for his or her services on
8 the board of directors, and has no financial interest in the
9 corporation or organization. The agency shall recognize a
10 person as a voluntary board member following submission of a
11 statement to the agency by the director and the not-for-profit
12 corporation or organization which affirms that the director
13 conforms to this definition. The statement affirming the
14 status of the director must be submitted to the agency on a
15 form provided by the agency.
16 Section 2. Subsections (4) and (6) of section 400.023,
17 Florida Statutes, are amended to read:
18 400.023 Civil enforcement.--
19 (4) A licensee is liable for In any claim for
20 resident's rights violation or negligence by a nurse licensed
21 under part I of chapter 464 who is practicing under the
22 direction of the licensee. The, such nurse shall have the duty
23 to exercise care consistent with the prevailing professional
24 standard of care for a nurse. The prevailing professional
25 standard of care for a nurse shall be that level of care,
26 skill, and treatment which, in light of all relevant
27 surrounding circumstances, is recognized as acceptable and
28 appropriate by reasonably prudent similar nurses.
29 (6) The resident or the resident's legal
30 representative shall serve a copy of any complaint alleging in
31 whole or in part a violation of any rights specified in this
10
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 part to the Agency for Health Care Administration at the time
2 of filing the initial complaint with the clerk of the court
3 for the county in which the action is pursued. The initial
4 complaint must contain a certificate certifying compliance
5 with this subsection. The requirement of providing a copy of
6 the complaint to the agency and certifying compliance with
7 this subsection does not impair the resident's legal rights or
8 ability to seek relief for his or her claim.
9 Section 3. Section 400.0233, Florida Statutes, is
10 amended to read:
11 400.0233 Presuit notice; investigation; notification
12 of violation of resident's rights or alleged negligence;
13 claims evaluation procedure; informal discovery; review;
14 settlement offer; mediation.--
15 (1) As used in this section, the term:
16 (a) "Claim for resident's rights violation or
17 negligence" means a negligence claim alleging injury to or the
18 death of a resident arising out of an asserted violation of
19 the rights of a resident under s. 400.022 or an asserted
20 deviation from the applicable standard of care.
21 (b) "Insurer" means any self-insurer authorized under
22 s. 627.357, liability insurance carrier, joint underwriting
23 association, or uninsured prospective defendant.
24 (1)(2) A claimant's initial notice Prior to filing a
25 claim for a violation of a resident's rights or a claim for
26 negligence, a claimant alleging injury to or the death of a
27 resident shall be provided to notify each prospective
28 defendant by certified mail, return receipt requested,
29 asserting a of an asserted violation of a resident's rights
30 provided in s. 400.022 or deviation from the standard of care.
31 The Such notification must be made before filing a claim and
11
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 it must shall include an identification of the rights the
2 prospective defendant has violated and the negligence alleged
3 to have caused the incident or incidents and a brief
4 description of the injuries sustained by the resident which
5 are reasonably identifiable at the time of notice. The notice
6 shall contain a certificate of counsel that counsel's
7 reasonable investigation gave rise to a good faith belief that
8 grounds exist for an action against each prospective
9 defendant. The notice of intent must contain a
10 medical-information release that allows a defendant, or his or
11 her legal representative, to obtain all medical records
12 potentially relevant to the claimant's alleged injury,
13 including all records of nonparty care, death certificates,
14 autopsy records, and other records related to the claim. If
15 the initial notice of claim does not contain a medical release
16 as required in this subsection, the time for the defendant to
17 submit a written response under paragraph (2)(b) is tolled
18 until the release is given to the defendant. Once the
19 defendant receives the release from the claimant, the
20 defendant has the remainder of the 75-day time period in which
21 to exercise the options described in paragraph (b).
22 (2)(a)(3)(a) A No suit may not be filed for a period
23 of 75 days after notice is mailed to any prospective
24 defendant. During the 75-day period, the prospective
25 defendants or their insurers shall conduct an evaluation of
26 the claim to determine the liability of each defendant and to
27 evaluate the damages of the claimants. Each defendant or
28 insurer of the defendant shall have a procedure for the prompt
29 evaluation of claims during the 75-day period. The procedure
30 must shall include one or more of the following:
31
12
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 1. Internal review by a duly qualified facility risk
2 manager or claims adjuster;
3 2. Internal review by counsel for each prospective
4 defendant;
5 3. A quality assurance committee authorized under any
6 applicable state or federal statutes or regulations; or
7 4. Any other similar procedure that fairly and
8 promptly evaluates the claims.
9
10 Each defendant or insurer of the defendant shall evaluate the
11 claim in good faith.
12 (b) At or before the end of the 75 days, the defendant
13 or insurer of the defendant shall provide the claimant with a
14 written response:
15 1. Rejecting the claim; or
16 2. Making a settlement offer; or
17 3. Making an offer to voluntarily arbitrate under s.
18 400.02342 in which liability is admitted and binding
19 arbitration is conducted only on the issue of damages. The
20 offer to arbitrate may be made contingent upon limiting
21 general damages. A request for voluntary binding arbitration
22 does not prevent the parties from continued settlement
23 discussions or settlement offers.
24 (c) The response shall be delivered to the claimant if
25 not represented by counsel or to the claimant's attorney, by
26 certified mail, return receipt requested. Failure of the
27 prospective defendant or insurer of the defendant to reply to
28 the notice within 75 days after receipt is shall be deemed a
29 rejection of the claim for purposes of this section.
30 (3)(4) The notification of a violation of a resident's
31 rights or alleged negligence shall be served within the
13
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 applicable statute of limitations period; however, during the
2 75-day period, the statute of limitations is tolled as to all
3 prospective defendants. Upon stipulation by the parties, the
4 75-day period may be extended and the statute of limitations
5 is tolled during any such extension. Upon receiving written
6 notice by certified mail, return receipt requested, of
7 termination of negotiations in an extended period, the
8 claimant has shall have 60 days or the remainder of the period
9 of the statute of limitations, whichever is greater, within
10 which to file suit.
11 (4)(5) No statement, discussion, written document,
12 report, or other work product generated by presuit claims
13 evaluation procedures under this section is discoverable or
14 admissible in any civil action for any purpose by the opposing
15 party. All participants, including, but not limited to,
16 physicians, investigators, witnesses, and employees or
17 associates of the defendant, are immune from civil liability
18 arising from participation in the presuit claims evaluation
19 procedure. Any licensed physician or registered nurse may be
20 retained by either party to provide an opinion regarding the
21 reasonable basis of the claim. The presuit opinions of the
22 expert are not discoverable or admissible in any civil action
23 for any purpose by the opposing party.
24 (5)(6) Upon receipt by a prospective defendant of a
25 notice of claim, the parties shall make discoverable
26 information available without formal discovery as provided in
27 subsection (6) (7).
28 (6)(7) Informal discovery may be used by a party to
29 obtain unsworn statements and the production of documents or
30 things as follows:
31
14
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 (a) Unsworn statements.--Any party may require other
2 parties to appear for the taking of an unsworn statement.
3 These Such statements may be used only for the purpose of
4 claims evaluation and are not discoverable or admissible in
5 any civil action for any purpose by any party. A party
6 seeking to take the unsworn statement of any party must give
7 reasonable notice in writing to all parties. The notice must
8 state the time and place for taking the statement and the name
9 and address of the party to be examined. Unless otherwise
10 impractical, the examination of any party must be done at the
11 same time by all other parties. Any party may be represented
12 by counsel at the taking of an unsworn statement. An unsworn
13 statement may be recorded electronically, stenographically, or
14 on videotape. The taking of unsworn statements is subject to
15 the provisions of the Florida Rules of Civil Procedure and may
16 be terminated for abuses.
17 (b) Documents or things.--Any party may request
18 discovery of relevant documents or things. The documents or
19 things must be produced, at the expense of the requesting
20 party, within 20 days after the date of receipt of the
21 request. A party is required to produce relevant and
22 discoverable documents or things within that party's
23 possession or control, if in good faith it can reasonably be
24 done within the timeframe of the claims evaluation process.
25 (7)(8) Each request for and notice concerning informal
26 discovery under pursuant to this section must be in writing,
27 and a copy thereof must be sent to all parties. The Such a
28 request or notice must bear a certificate of service
29 identifying the name and address of the person to whom the
30 request or notice is served, the date of the request or
31 notice, and the manner of service thereof.
15
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 (8)(9) If a prospective defendant makes a written
2 settlement offer, the claimant shall have 15 days from the
3 date of receipt to accept the offer. An offer shall be deemed
4 rejected unless accepted by delivery of a written notice of
5 acceptance.
6 (9)(10) To the extent not inconsistent with this part,
7 the provisions of the Florida Mediation Code, Florida Rules of
8 Civil Procedure, shall be applicable to these such
9 proceedings.
10 (10)(11) Within 30 days After the claimant's receipt
11 of the defendant's response to the claim, the parties or their
12 designated representatives may stipulate to toll the statute
13 of limitations for 90 days in order to shall meet in mediation
14 to discuss the issues of liability and damages in accordance
15 with the mediation rules of practice and procedures adopted by
16 the Supreme Court. Upon stipulation of the parties, this
17 90-day 30-day period may be extended and the statute of
18 limitations is tolled during the mediation and any such
19 extension. At the conclusion of mediation, the claimant shall
20 have 60 days or the remainder of the period of the statute of
21 limitations, whichever is greater, within which to file suit.
22 Section 4. Section 400.0234, Florida Statutes, is
23 amended to read:
24 400.0234 Availability of facility records for
25 investigation of resident's rights violations and defenses;
26 penalty.--
27 (1) Failure to provide complete copies of a resident's
28 records, including, but not limited to, all medical records
29 and the resident's chart, within the control or possession of
30 the facility in accordance with s. 400.145 shall constitute
31 evidence of failure of that party to comply with good faith
16
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 discovery requirements and shall waive the good faith
2 certificate, and presuit notice, voluntary binding
3 arbitration, and mediation requirements under this part by the
4 requesting party.
5 (2) No facility shall be held liable for any civil
6 damages as a result of complying with this section.
7 Section 5. Section 400.02342, Florida Statutes, is
8 created to read:
9 400.02342 Voluntary binding arbitration of claims for
10 resident's rights violation or negligence.--
11 (1) Voluntary binding arbitration under this part does
12 not apply to causes of action involving the state or its
13 agencies or subdivisions, or the officers, employees, or
14 agents thereof under s. 768.28.
15 (2) Any party may elect, with respect only to a claim
16 arising out of the rendering of, or the failure to render,
17 nursing home services to voluntarily submit the issue of
18 damages to binding arbitration and have the issue determined
19 by an arbitration panel. For purposes of arbitration under
20 this part, the term "nursing home services" means those
21 services that are rendered to a resident as a result of his or
22 her needs or conditions and that would be customarily within
23 the scope of care provided by the nursing facility, including:
24 (a) Skin care;
25 (b) Mobility and walking assistance;
26 (c) Nourishment;
27 (d) Hydration;
28 (e) Infection prevention;
29 (f) Skilled therapy;
30 (g) Skilled nursing services; and
31 (h) Fall prevention.
17
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 (3) Any party may initiate the process to elect
2 voluntary binding arbitration. The election process is
3 initiated when a party serves a request for voluntary binding
4 arbitration of damages on the opposing party. The notice of
5 election must be served no later than the conclusion of the
6 75-day pre-suit waiting period in accordance with s.
7 400.0233(2)(b) or the remainder of the period of the statute
8 of limitations, whichever is greater, or no later than 30 days
9 after the filing date of an amended complaint containing new
10 claims that are subject to an offer of voluntary binding
11 arbitration. The evidentiary standard for voluntary binding
12 arbitration of claims arising out of the rendering of, or the
13 failure to render, nursing home services is by a greater
14 weight of the evidence as in s. 400.023(2) and chapter 90.
15 (4) The opposing party may accept the offer of
16 voluntary binding arbitration no later than 30 days after
17 receiving the other party's request for arbitration.
18 Acceptance within the time period is a binding commitment to
19 comply with the decision of the arbitration panel as to the
20 appropriate level of damages, if any, which may be awarded.
21 (5) The arbitration panel must include three
22 arbitrators: one selected by the claimant, one selected by the
23 defendant, and an administrative law judge furnished by the
24 Division of Administrative Hearings. The administrative law
25 judge shall serve as the chief arbitrator. If the claim
26 involves multiple claimants or multiple defendants, one
27 arbitrator must be selected by the side with multiple parties
28 as the choice of those parties. If the multiple parties cannot
29 reach agreement as to their arbitrator, each of the multiple
30 parties must submit a nominee to the director of the division
31
18
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 who shall choose the arbitrator for the side having multiple
2 parties.
3 (6) Discovery in voluntary binding arbitration cases
4 is governed by the Florida Rules of Civil Procedure.
5 (7) The arbitrators shall be independent of all
6 parties, witnesses, and legal counsel, and an officer,
7 director, affiliate, subsidiary, or employee of a party,
8 witness, or legal counsel may not serve as an arbitrator in
9 the proceeding.
10 (8) The rate of compensation for arbitrators, other
11 than the administrative law judge, shall be set by the
12 division and may not exceed the ordinary and customary fees
13 paid to court-approved mediators in the circuit in which the
14 claim would be filed. The costs of compensation for the
15 arbitrators must be borne by the party requesting arbitration.
16 (9) A party participating in arbitration under this
17 section may not use any other forum against a participating
18 defendant during the course of the arbitration.
19 (10) A participating claimant agrees that damages be
20 awarded according to this part, subject to the following
21 limitations:
22 (a) The defendant has offered not to contest liability
23 and causation and has agreed to arbitration on the issue of
24 damages as provided in this section.
25 (b) Net economic damages, if any, are awardable,
26 including, but not limited to, past and future medical and
27 health care expenses, offset by collateral source payments, to
28 the extent that the claimant is entitled to recover damages
29 under general law, including the Wrongful Death Act, s.
30 46.021, or s. 400.023.
31
19
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 (c) Total noneconomic damages, if any, which may be
2 awarded for the claim arising out of the care and services
3 rendered to a nursing home resident, including any claim
4 available under the Wrongful Death Act, s. 46.021, or s.
5 400.023, are limited to a maximum of $500,000, regardless of
6 the number of individual claimants or defendants.
7 (d) Punitive damages may not be awarded.
8 (e) The defendant is responsible for the payment of
9 interest on all accrued damages with respect to which interest
10 would be awarded at trial.
11 (f) The party requesting binding arbitration shall pay
12 the fees of the arbitrators and the costs of the division
13 associated with arbitration, as assessed by the division. If
14 the division determines that the plaintiff is indigent and
15 unable to pay, the defendant shall pay the fees and costs as
16 assessed by the division, and the defendant shall have a claim
17 for reimbursement against the estate of the plaintiff.
18 (g) A defendant who agrees to particate in arbitration
19 under this section is jointly and severally liable for all
20 damages assessed under this section.
21 (h) A defendant's obligation to pay the claimant's
22 damages applies only to arbitration under this part. A
23 defendant's or claimant's offer to arbitrate may not be used
24 in evidence or in argument during any subsequent litigation of
25 the claim following rejection thereof.
26 (i) The fact of making or rejecting an offer to
27 arbitrate is not admissible as evidence of liability in any
28 collateral or subsequent proceeding on the claim.
29 (j) An offer by a claimant to arbitrate must be made
30 to each defendant against whom the claimant has made a claim.
31 An offer by a defendant to arbitrate must be made to each
20
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 claimant. A defendant who rejects a claimant's offer to
2 arbitrate is subject to s. 400.02344(3). A claimant who
3 rejects a defendant's offer to arbitrate is subject to s.
4 400.02344(4).
5 (k) The hearing must be conducted by all the
6 arbitrators, but a majority may determine any question of fact
7 and render a final decision. The chief arbitrator shall decide
8 all evidentiary matters in accordance with the Florida
9 Evidence Code and the Florida Rules of Civil Procedure. The
10 chief arbitrator shall file a copy of the final decision with
11 the clerk of the Agency for Health Care Administration. If any
12 member of the arbitration panel becomes unavailable, and as a
13 result of the unavailability the panel is unable to reach a
14 final majority decision, the chief arbitrator shall dissolve
15 the arbitration panel, declare misarbitration and empanel a
16 new arbitration panel under subsection (4).
17 (l) This part does not preclude settlement at any time
18 by mutual agreement of the parties.
19 (m) If an award of damages is made to a claimant by
20 the arbitration panel, the defendant must pay the damages no
21 later than 20 days after entry of the decision of the
22 arbitration panel.
23 (n) Damages and costs that are not paid within 20 days
24 are subject to postjudgment interest.
25 (o) This part does not relieve a defendant who
26 voluntarily participates in binding arbitration from timely
27 paying damages and costs awarded by an arbitration panel.
28 (11) Any issue between the defendant and the
29 defendant's insurer or self-insurer as to who shall control
30 the defense of the claim and any responsibility for payment of
31 an arbitration award shall be determined under existing
21
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 principles of law, except that the insurer or self insurer may
2 not offer to arbitrate or accept a claimant's offer to
3 arbitrate without the written consent of the defendant.
4 (12)(a) The Division of Administrative Hearings may
5 adopt rules to implement this section.
6 (b) Rules adopted by the division under this section,
7 s. 120.54, or s. 120.65, may authorize a reasonable sanction,
8 except contempt, including, but not limited to, any sanction
9 authorized by s. 57.105, against a party for violating a rule
10 of the division or failing to comply with an order issued by
11 an administrative law judge which is not under judicial
12 review.
13 (13) The division may charge the party requesting
14 binding arbitration an administrative fee for conducting the
15 arbitration. The administrative fee may not exceed $1,000.
16 (14) This section does not prevent the parties from
17 using a private arbitrator or arbitrators, in which instance
18 the same procedures and limitations set forth in this section
19 apply.
20 Section 6. Section 400.02343, Florida Statutes, is
21 created to read:
22 400.02343 Arbitration to apportion financial
23 responsibility among multiple defendants.--
24 (1) This section applies when more than one defendant
25 participates in voluntary binding arbitration under s.
26 400.02342.
27 (2)(a) Defendants who agreed to voluntary binding
28 arbitration must submit any dispute amongst themselves
29 concerning apportionment of financial responsibility to a
30 separate binding arbitration proceeding. The defendants must
31 file a notice of the dispute with the administrative law judge
22
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 of the arbitration panel no later than 20 days after a
2 determination of damages by the arbitration panel.
3 (b) The apportionment proceeding shall be conducted
4 before a panel of three arbitrators. The panel must include
5 the administrative law judge who presided in the arbitration
6 proceeding and two nursing home arbitrators appointed by the
7 defendants. If the defendants cannot agree on their selections
8 to the apportionment panel, a list of not more than five
9 nominees shall be submitted by each defendant to the director
10 of the Division of Administrative Hearings. The director shall
11 select the other arbitrators but may not select more than one
12 from the list of nominees of any defendant.
13 (3) The administrative law judge shall serve as the
14 chief arbitrator. The judge shall convene the apportionment
15 panel no later than 65 days after the arbitration panel issues
16 a damage award.
17 (4) The apportionment panel shall allocate financial
18 responsibility among all defendants named in the notice of an
19 asserted violation of a resident's rights or deviation from
20 the standard of care, regardless of whether the defendant had
21 submitted to arbitration. The defendants in the apportionment
22 proceeding are responsible to one another for their
23 proportionate share of the damage award, attorney's fees, and
24 costs awarded by the arbitration panel. All defendants in the
25 apportionment proceeding are jointly and severally liable for
26 any damages assessed in arbitration. The determination of the
27 percentage of fault of any nonarbitrating defendant is not
28 binding against that defendant but is admissible in any
29 subsequent legal proceeding.
30 (5) Payment by a defendant of the damages awarded by
31 the arbitration panel in the arbitration proceeding
23
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 extinguishes the defendant's liability to the claimant for the
2 incident described in the first arbitration and extinguishes
3 the defendant's liability for contribution to any defendant
4 who did not participate in arbitration.
5 (6) A defendant paying damages assessed under this
6 section or s. 400.02342 has a cause of action for contribution
7 against any arbitrating or nonarbitrating defendant whose
8 negligence contributed to the injury.
9 Section 7. Section 400.02344, Florida Statutes, is
10 created to read:
11 400.02344 Effect of a failure to offer or accept
12 voluntary binding arbitration.--
13 (1) A proceeding for voluntary binding arbitration is
14 an alternative to a jury trial and does not supersede the
15 right of any party to a jury trial.
16 (2) If neither party requests or agrees to voluntary
17 binding arbitration, the claim shall proceed to trial or to
18 any available legal alternative such as offer of and demand
19 for judgment under s. 768.79 or offer of settlement under s.
20 45.061.
21 (3) If a defendant rejects a claimant's offer to
22 participate in voluntary binding arbitration, the claim shall
23 proceed to trial as otherwise provided in this chapter without
24 limits on noneconomic damages. If the claimant prevails at
25 trial, the claimant is entitled to recover damages otherwise
26 provided by law, prejudgment interest, and reasonable
27 attorney's fees of up to 25 percent of the award when reduced
28 to present value.
29 (4) If a claimant rejects a defendant's offer to enter
30 into voluntary binding arbitration:
31
24
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 (a) Damages are limited to net economic damages and
2 noneconomic damages of no more than $750,000 per claim. The
3 total noneconomic damages, if any, which may be awarded for
4 the claim arising out of the care and services rendered to the
5 resident, including any claim under the Wrongful Death Act,
6 are limited to a maximum of $750,000, regardless of the number
7 of individual claimants or defendants. The Legislature
8 expressly finds that the conditional limit on noneconomic
9 damages is warranted by the claimant's refusal to accept
10 arbitration and represents an appropriate balance between the
11 interests of all residents who ultimately pay for rights and
12 negligence losses and the interests of those residents who are
13 injured as a result of negligence and violations of rights.
14 (b) Attorney's fees may not be awarded.
15 (c) Net economic damages may be awarded, including,
16 but not limited to, past and future medical and health care
17 expenses, loss of wages, and loss of earning capacity, offset
18 by collateral source payments.
19 (d) Punitive damages may be awarded under ss. 400.0237
20 and 400.0238.
21 (5) Jury trial shall proceed in accordance with
22 existing principles of law.
23 Section 8. Section 400.02345, Florida Statutes, is
24 created to read:
25 400.02345 Determination of whether claim is subject to
26 arbitration.--
27 (1) A court of competent jurisdiction shall determine
28 if a claim is subject to voluntary arbitration under ss.
29 400.02342 and 400.02348 if the parties cannot agree. If a
30 court determines that a claim is subject to binding
31 arbitration, the parties must decide whether to voluntarily
25
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 arbitrate the claim no later than 30 days after the date the
2 court enters its order. If the parties choose not to
3 arbitrate, the limitations imposed by s. 400.02344 apply.
4 (2) If a plaintiff amends a complaint to allege facts
5 that render the claim subject to binding arbitration under ss.
6 400.02342 and 400.02348, the parties must decide whether to
7 participate in binding arbitration no later than 30 days after
8 the plaintiff files the amended complaint. If the parties
9 choose not to arbitrate, the limitations imposed upon the
10 parties under ss. 400.02343 and 400.02344 apply.
11 Section 9. Section 400.02347, Florida Statutes, is
12 created to read:
13 400.02347 Payment of arbitration award; interest.--
14 (1) No later than 20 days after the arbitration panel
15 makes a finding of damages, if any, under s. 400.02342, a
16 defendant shall:
17 (a) Pay the arbitration award to the claimant; and
18 (b) Submit any dispute among multiple defendants to
19 arbitration under s. 400.02343.
20 (2) Beginning 20 days after a damage award is issued
21 by the arbitration panel under s. 400.02342, the award shall
22 begin to accrue interest at the rate of 18 percent per year.
23 Section 10. Section 400.02348, Florida Statutes, is
24 created to read:
25 400.02348 Appeal of arbitration awards and
26 apportionment of financial responsibility.--
27 (1) An arbitration award and an apportionment of
28 financial responsibility are final agency action for purposes
29 of s. 120.68. An appeal must be taken to the district court of
30 appeal for the district in which the arbitration or
31 apportionment took place. The appeal is limited to a review of
26
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 the record and must proceed according to s. 120.68. The amount
2 of an arbitration award or an order apportioning financial
3 responsibility, the evidence in support of either, and the
4 procedure by which either is determined are subject to
5 judicial review only in a proceeding instituted under this
6 section.
7 (2) An appeal does not stay an arbitration or
8 apportionment award. An arbitration or apportionment panel,
9 arbitration panel member, or circuit court may not stay an
10 arbitration or apportionment award. A district court of appeal
11 may stay an award to prevent manifest injustice, but a
12 district court of appeal may not abrogate the provisions of s.
13 400.02347(2).
14 (3) A party to an arbitration proceeding may enforce
15 an arbitration award or an apportionment of financial
16 responsibility by filing a petition in the circuit court for
17 the circuit in which the arbitration or apportionment took
18 place. A petition may not be granted unless the time for
19 appeal has expired. If an appeal has been taken, a petition
20 may not be granted with respect to an arbitration award or an
21 apportionment of financial responsibility that has been
22 stayed.
23 (4) If the petitioner establishes the authenticity of
24 the arbitration award or of the apportionment of financial
25 responsibility, shows that the time for appeal has expired,
26 and demonstrates that no stay is in place, the court shall
27 enter the orders and judgments as are required to carry out
28 the terms of the arbitration award or apportionment of
29 financial responsibility. The orders are enforceable by the
30 contempt powers of the court, and execution shall issue upon
31 the request of a party for the judgment.
27
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 Section 11. Section 400.141, Florida Statutes, is
2 amended to read:
3 400.141 Administration and management of nursing home
4 facilities.--Every licensed facility shall comply with all
5 applicable standards and rules of the agency and shall:
6 (1) Be under the administrative direction and charge
7 of a licensed administrator.
8 (2) Appoint a medical director licensed pursuant to
9 chapter 458 or chapter 459. The agency may establish by rule
10 more specific criteria for the appointment of a medical
11 director.
12 (3) Have available the regular, consultative, and
13 emergency services of physicians licensed by the state.
14 (4) Provide for resident use of a community pharmacy
15 as specified in s. 400.022(1)(q). Any other law to the
16 contrary notwithstanding, a registered pharmacist licensed in
17 Florida, that is under contract with a facility licensed under
18 this chapter, shall repackage a nursing facility resident's
19 bulk prescription medication which has been packaged by
20 another pharmacist licensed in any state in the United States
21 into a unit dose system compatible with the system used by the
22 nursing facility, if the pharmacist is requested to offer such
23 service. In order to be eligible for the repackaging, a
24 resident or the resident's spouse must receive prescription
25 medication benefits provided through a former employer as part
26 of his or her retirement benefits, a qualified pension plan as
27 specified in s. 4972 of the Internal Revenue Code, a federal
28 retirement program as specified under 5 C.F.R. s. 831, or a
29 long-term care policy as defined in s. 627.9404(1). A
30 pharmacist who correctly repackages and relabels the
31 medication and the nursing facility which correctly
28
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 administers such repackaged medication under the provisions of
2 this subsection shall not be held liable in any civil or
3 administrative action arising from the repackaging. In order
4 to be eligible for the repackaging, a nursing facility
5 resident for whom the medication is to be repackaged shall
6 sign an informed consent form provided by the facility which
7 includes an explanation of the repackaging process and which
8 notifies the resident of the immunities from liability
9 provided herein. A pharmacist who repackages and relabels
10 prescription medications, as authorized under this subsection,
11 may charge a reasonable fee for costs resulting from the
12 implementation of this provision.
13 (5) Provide for the access of the facility residents
14 to dental and other health-related services, recreational
15 services, rehabilitative services, and social work services
16 appropriate to their needs and conditions and not directly
17 furnished by the licensee. When a geriatric outpatient nurse
18 clinic is conducted in accordance with rules adopted by the
19 agency, outpatients attending such clinic shall not be counted
20 as part of the general resident population of the nursing home
21 facility, nor shall the nursing staff of the geriatric
22 outpatient clinic be counted as part of the nursing staff of
23 the facility, until the outpatient clinic load exceeds 15 a
24 day.
25 (6) Be allowed and encouraged by the agency to provide
26 other needed services under certain conditions. If the
27 facility has a standard licensure status, and has had no class
28 I or class II deficiencies during the past 2 years or has been
29 awarded a Gold Seal under the program established in s.
30 400.235, it may be encouraged by the agency to provide
31 services, including, but not limited to, respite and adult day
29
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 services, which enable individuals to move in and out of the
2 facility. A facility is not subject to any additional
3 licensure requirements for providing these services. Respite
4 care may be offered to persons in need of short-term or
5 temporary nursing home services. Respite care must be provided
6 in accordance with this part and rules adopted by the agency.
7 However, the agency shall, by rule, adopt modified
8 requirements for resident assessment, resident care plans,
9 resident contracts, physician orders, and other provisions, as
10 appropriate, for short-term or temporary nursing home
11 services. The agency shall allow for shared programming and
12 staff in a facility which meets minimum standards and offers
13 services pursuant to this subsection, but, if the facility is
14 cited for deficiencies in patient care, may require additional
15 staff and programs appropriate to the needs of service
16 recipients. A person who receives respite care may not be
17 counted as a resident of the facility for purposes of the
18 facility's licensed capacity unless that person receives
19 24-hour respite care. A person receiving either respite care
20 for 24 hours or longer or adult day services must be included
21 when calculating minimum staffing for the facility. Any costs
22 and revenues generated by a nursing home facility from
23 nonresidential programs or services shall be excluded from the
24 calculations of Medicaid per diems for nursing home
25 institutional care reimbursement.
26 (7) If the facility has a standard license or is a
27 Gold Seal facility, exceeds the minimum required hours of
28 licensed nursing and certified nursing assistant direct care
29 per resident per day, and is part of a continuing care
30 facility licensed under chapter 651 or a retirement community
31 that offers other services under pursuant to part III, part
30
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 IV, or part V on a single campus, be allowed to share
2 programming and staff. At the time of inspection and in the
3 semiannual report required pursuant to subsection (15), a
4 continuing care facility or retirement community that uses
5 this option must demonstrate through staffing records that
6 minimum staffing requirements for the facility were met.
7 Licensed nurses and certified nursing assistants who work in
8 the nursing home facility may be used to provide services
9 elsewhere on campus if the facility exceeds the minimum number
10 of direct care hours required per resident per day and the
11 total number of residents receiving direct care services from
12 a licensed nurse or a certified nursing assistant does not
13 cause the facility to violate the staffing ratios required
14 under s. 400.23(3)(a). Compliance with the minimum staffing
15 ratios shall be based on total number of residents receiving
16 direct care services, regardless of where they reside on
17 campus. If the facility receives a conditional license, it may
18 not share staff until the conditional license status ends.
19 This subsection does not restrict the agency's authority under
20 federal or state law to require additional staff if a facility
21 is cited for deficiencies in care which are caused by an
22 insufficient number of certified nursing assistants or
23 licensed nurses. The agency may adopt rules for the
24 documentation necessary to determine compliance with this
25 provision.
26 (8) Maintain the facility premises and equipment and
27 conduct its operations in a safe and sanitary manner.
28 (9) If the licensee furnishes food service, provide a
29 wholesome and nourishing diet sufficient to meet generally
30 accepted standards of proper nutrition for its residents and
31 provide such therapeutic diets as may be prescribed by
31
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 attending physicians. In making rules to implement this
2 subsection, the agency shall be guided by standards
3 recommended by nationally recognized professional groups and
4 associations with knowledge of dietetics.
5 (10) Keep full records of resident admissions and
6 discharges; medical and general health status, including
7 medical records, personal and social history, and identity and
8 address of next of kin or other persons who may have
9 responsibility for the affairs of the residents; and
10 individual resident care plans including, but not limited to,
11 prescribed services, service frequency and duration, and
12 service goals. The records shall be open to inspection by the
13 agency.
14 (11) Keep such fiscal records of its operations and
15 conditions as may be necessary to provide information under
16 pursuant to this part.
17 (12) Furnish copies of personnel records for employees
18 affiliated with the such facility, to any other facility
19 licensed by this state requesting this information pursuant to
20 this part. The Such information contained in the records may
21 include, but is not limited to, disciplinary matters and any
22 reason for termination. Any facility releasing such records
23 under pursuant to this part shall be considered to be acting
24 in good faith and may not be held liable for information
25 contained in such records, absent a showing that the facility
26 maliciously falsified such records.
27 (13) Publicly display a poster provided by the agency
28 containing the names, addresses, and telephone numbers for the
29 state's abuse hotline, the State Long-Term Care Ombudsman, the
30 Agency for Health Care Administration consumer hotline, the
31 Advocacy Center for Persons with Disabilities, the Florida
32
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 Statewide Advocacy Council, and the Medicaid Fraud Control
2 Unit, with a clear description of the assistance to be
3 expected from each.
4 (14) Submit to the agency the information specified in
5 s. 400.071(2)(e) for a management company within 30 days after
6 the effective date of the management agreement.
7 (15) Submit semiannually to the agency, or more
8 frequently if requested by the agency, information regarding
9 facility staff-to-resident ratios, staff turnover, and staff
10 stability, including information regarding certified nursing
11 assistants, licensed nurses, the director of nursing, and the
12 facility administrator. For purposes of this reporting:
13 (a) Staff-to-resident ratios must be reported in the
14 categories specified in s. 400.23(3)(a) and applicable rules.
15 The ratio must be reported as an average for the most recent
16 calendar quarter.
17 (b) Staff turnover must be reported for the most
18 recent 12-month period ending on the last workday of the most
19 recent calendar quarter prior to the date the information is
20 submitted. The turnover rate must be computed quarterly, with
21 the annual rate being the cumulative sum of the quarterly
22 rates. The turnover rate is the total number of terminations
23 or separations experienced during the quarter, excluding any
24 employee terminated during a probationary period of 3 months
25 or less, divided by the total number of staff employed at the
26 end of the period for which the rate is computed, and
27 expressed as a percentage.
28 (c) The formula for determining staff stability is the
29 total number of employees that have been employed for more
30 than 12 months, divided by the total number of employees
31
33
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 employed at the end of the most recent calendar quarter, and
2 expressed as a percentage.
3 (d) A nursing facility that has failed to comply with
4 state minimum-staffing requirements for 2 consecutive days is
5 prohibited from accepting new admissions until the facility
6 has achieved the minimum-staffing requirements for a period of
7 6 consecutive days. For the purposes of this paragraph, any
8 person who was a resident of the facility and was absent from
9 the facility for the purpose of receiving medical care at a
10 separate location or was on a leave of absence is not
11 considered a new admission. Failure to impose such an
12 admissions moratorium constitutes a class II deficiency.
13 (e) A nursing facility which does not have a
14 conditional license may be cited for failure to comply with
15 the standards in s. 400.23(3)(a) only if it has failed to meet
16 those standards on 2 consecutive days or if it has failed to
17 meet at least 97 percent of those standards on any one day.
18 (f) A facility which has a conditional license must be
19 in compliance with the standards in s. 400.23(3)(a) at all
20 times.
21
22 Nothing in this section shall limit the agency's ability to
23 impose a deficiency or take other actions if a facility does
24 not have enough staff to meet the residents' needs.
25 (16) Report monthly the number of vacant beds in the
26 facility which are available for resident occupancy on the day
27 the information is reported.
28 (17) Notify a licensed physician when a resident
29 exhibits signs of dementia or cognitive impairment or has a
30 change of condition in order to rule out the presence of an
31 underlying physiological condition that may be contributing to
34
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 such dementia or impairment. The notification must occur
2 within 30 days after the acknowledgment of the such signs by
3 facility staff. If an underlying condition is determined to
4 exist, the facility shall arrange, with the appropriate health
5 care provider, the necessary care and services to treat the
6 condition.
7 (18) If the facility implements a dining and
8 hospitality attendant program, ensure that the program is
9 developed and implemented under the supervision of the
10 facility director of nursing. A licensed nurse, licensed
11 speech or occupational therapist, or a registered dietitian
12 must conduct training of dining and hospitality attendants. A
13 person employed by a facility as a dining and hospitality
14 attendant must perform tasks under the direct supervision of a
15 licensed nurse.
16 (19) Report to the agency any filing for bankruptcy
17 protection by the facility or its parent corporation,
18 divestiture or spin-off of its assets, or corporate
19 reorganization within 30 days after the completion of the such
20 activity.
21 (20) Effective October 1, 2005, maintain general and
22 professional liability insurance coverage, written through
23 admitted carriers, surplus carriers, or offshore captives, in
24 an amount not less than $2,500 per licensed nursing home bed
25 that is in force at all times. In lieu of general and
26 professional liability insurance coverage, a state-designated
27 teaching nursing home and its affiliated assisted living
28 facilities created under s. 430.80 may demonstrate proof of
29 financial responsibility as provided in s. 430.80(3)(h); the
30 exception provided in this paragraph shall expire July 1,
31
35
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 2005.The professional liability insurance coverage shall not
2 allow for wasting of the policy with costs and attorney fees.
3 (21)(a) Effective October 1, 2005, in lieu of general
4 and professional liability insurance coverage, demonstrate
5 proof of financial responsibility in one of the following
6 ways:
7 1. Establishing an escrow account consisting of cash
8 or assets eligible for deposit in accordance with s. 625.52 in
9 an annual amount not less than $2,500 per licensed nursing
10 home bed, to be funded in 12 monthly installments at the
11 inception of the escrow account; or
12 2. Obtaining an unexpired, irrevocable letter of
13 credit, established under chapter 675, in an annual amount not
14 less than $2,500 per licensed nursing home bed. The letter of
15 credit shall be payable to the facility as beneficiary upon
16 presentment of a final judgment indicating liability and
17 awarding damages to be paid by the facility or upon
18 presentment of a settlement agreement signed by all parties to
19 the agreement when the final judgment or settlement is a
20 result of a liability claim against the facility. The letter
21 of credit shall be nonassignable and nontransferable. The
22 letter of credit shall be issued by any bank or savings
23 association organized and existing under the laws of this
24 state or any bank or savings association organized under the
25 laws of the United States which has its principal place of
26 business in this state or has a branch office that is
27 authorized under the laws of this state or of the United
28 States to receive deposits in this state.
29 (b) In lieu of general and professional liability
30 insurance coverage, a state-designated teaching nursing home
31 and its affiliated assisted living facilities created under s.
36
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 430.80 may demonstrate proof of financial responsibility as
2 provided in s. 430.80(3)(h).
3 (c) The required amount of general and professional
4 liability insurance or financial responsibility shall be
5 recalculated beginning January 1, 2007, and continue each
6 January 1, by the rate of inflation for the preceding year,
7 using the Consumer Price Index Urban B All Items, as published
8 by the United States Bureau of Labor Statistics.
9 (d) General and professional liability coverage or
10 financial responsibility must be demonstrated at the time of
11 initial licensure and at the time of relicensure and in order
12 to maintain the license.
13 (e) Notwithstanding any provision to the contrary, a
14 nursing home facility that is part of a continuing care
15 facility certified under chapter 651 and owned by the same
16 corporation may use the liability insurance or financial
17 responsibility that is in effect for the continuing care
18 facility as proof of compliance if the total amount of
19 coverage or financial responsibility is no less than the
20 minimum amount required for its nursing home facility based on
21 $2,500 per licensed nursing home bed under the requirements of
22 this section and as adjusted for inflation as provided in
23 paragraph (c).
24 (f) A corporation that owns a nursing home facility
25 and offers other long-term care or housing services under the
26 same corporate entity or a holding company through which
27 nursing home care and other services are offered, including,
28 but not limited to, assisted living, home health, apartments
29 or units for independent living, or any combination thereof,
30 may use the liability insurance or financial responsibility in
31 effect for the corporation or holding company as proof of
37
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 compliance if the amount of coverage or financial
2 responsibility is no less than the minimum amount required for
3 its nursing home facility based on $2,500 per licensed nursing
4 home bed under the requirements of this section and as
5 adjusted for inflation as provided in paragraph (c).
6 (22)(21) Maintain in the medical record for each
7 resident a daily chart of certified nursing assistant services
8 provided to the resident. The certified nursing assistant who
9 is caring for the resident must complete this record by the
10 end of his or her shift. This record must indicate assistance
11 with activities of daily living, assistance with eating, and
12 assistance with drinking, and must record each offering of
13 nutrition and hydration for those residents whose plan of care
14 or assessment indicates a risk for malnutrition or
15 dehydration.
16 (23)(22) Before November 30 of each year, subject to
17 the availability of an adequate supply of the necessary
18 vaccine, provide for immunizations against influenza viruses
19 to all its consenting residents in accordance with the
20 recommendations of the United States Centers for Disease
21 Control and Prevention, subject to exemptions for medical
22 contraindications and religious or personal beliefs. Subject
23 to these exemptions, any consenting person who becomes a
24 resident of the facility after November 30 but before March 31
25 of the following year must be immunized within 5 working days
26 after becoming a resident. Immunization shall not be provided
27 to any resident who provides documentation that he or she has
28 been immunized as required by this subsection. This subsection
29 does not prohibit a resident from receiving the immunization
30 from his or her personal physician if he or she so chooses. A
31 resident who chooses to receive the immunization from his or
38
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 her personal physician shall provide proof of immunization to
2 the facility. The agency may adopt and enforce any rules
3 necessary to comply with or implement this subsection.
4 (24)(23) Assess all residents for eligibility for
5 pneumococcal polysaccharide vaccination (PPV) and vaccinate
6 residents when indicated within 60 days after the effective
7 date of this act in accordance with the recommendations of the
8 United States Centers for Disease Control and Prevention,
9 subject to exemptions for medical contraindications and
10 religious or personal beliefs. Residents admitted after the
11 effective date of this act shall be assessed within 5 working
12 days of admission and, when indicated, vaccinated within 60
13 days in accordance with the recommendations of the United
14 States Centers for Disease Control and Prevention, subject to
15 exemptions for medical contraindications and religious or
16 personal beliefs. Immunization shall not be provided to any
17 resident who provides documentation that he or she has been
18 immunized as required by this subsection. This subsection does
19 not prohibit a resident from receiving the immunization from
20 his or her personal physician if he or she so chooses. A
21 resident who chooses to receive the immunization from his or
22 her personal physician shall provide proof of immunization to
23 the facility. The agency may adopt and enforce any rules
24 necessary to comply with or implement this subsection.
25 (25)(24) Annually encourage and promote to its
26 employees the benefits associated with immunizations against
27 influenza viruses in accordance with the recommendations of
28 the United States Centers for Disease Control and Prevention.
29 The agency may adopt and enforce any rules necessary to comply
30 with or implement this subsection.
31
39
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 Facilities that have been awarded a Gold Seal under the
2 program established in s. 400.235 may develop a plan to
3 provide certified nursing assistant training as prescribed by
4 federal regulations and state rules and may apply to the
5 agency for approval of their program.
6 Section 12. Subsection (3) is added to section
7 400.151, Florida Statutes, to read:
8 400.151 Contracts.--
9 (3) If a contract to which this section applies
10 contains a provision that provides for binding arbitration of
11 any dispute that may arise under, or is related to, the
12 duties, obligations, or services set forth in the contract,
13 the binding-arbitration provision must comply with the
14 following criteria:
15 (a) The provision may not be contrary to this chapter.
16 (b) The provision must be distinguishable from the
17 remainder of the contract by using uppercase and bold typeface
18 to denominate the provision as one providing for "DISPUTE
19 RESOLUTION" or alternatively, "ARBITRATION." The provision
20 must also use uppercase and bold typeface to notify the
21 resident that signing the contract means that the party agrees
22 to waive any right to a jury trial and consents to engage in
23 voluntary binding arbitration.
24 (c) The provision must include a short, easily
25 understandable explanation of the arbitration process and what
26 claims are subject to arbitration. The provision must clearly
27 inform the resident, or the resident's designee, that he or
28 she has the right to consult an attorney and have the
29 agreement reviewed by an attorney of his or her choice. A
30 representative of the licensee must read the provision to the
31 resident and answer any questions asked by the resident. If a
40
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 resident requires special accommodations for reading or
2 hearing the provision, the licensee must ensure that
3 appropriate accommodations are made.
4 (d) The provision must comply with chapter 682,
5 including, but not limited to, the right of the parties to
6 participate in discovery, the right to counsel, the right to
7 present evidence, the right to cross-examine witnesses, and
8 present expert testimony.
9 (e) The contract's provision may not limit the amount
10 of the damages, if any, which may be awarded by the arbitrator
11 other than to state that the limitations set forth in section
12 400.023(1) apply to the contract. If a claimant seeks to
13 assert a claim for punitive damages, ss. 400.0237 and 400.0238
14 apply when determining whether such a claim may be brought and
15 the amount of damages, if any, which may be awarded.
16 (f) The provision must state that the laws of this
17 state apply to any legal issue presented to the arbitration
18 panel and must state that the arbitration will be held in the
19 county where the nursing home facility is located.
20 (g) The provision does not limit the resident from
21 bringing a claim in the arbitration based upon an alleged
22 deprivation of his or her resident rights as set forth in s.
23 400.022, and in accordance with the standards set forth in s.
24 400.023(2)-(5).
25 (h) The resident, or, if the resident is unable to
26 sign the contract due to any physical or mental impairment,
27 the resident's health care surrogate, health care proxy,
28 spouse, or other person holding a power of attorney or durable
29 family power of attorney has 14 calendar days following the
30 date of signing the contract, excluding state-recognized
31 holidays, in which to rescind the arbitration provision, and
41
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 the rescission does not affect the other duties and
2 obligations set forth in the agreement by and between the
3 parties.
4 (i) The page on which the dispute-resolution or
5 arbitration provision appears must include a signature line or
6 other area where the resident, or resident's designee, can
7 sign or initial that they have read the page and that the
8 contents of the page have been explained to them.
9 (j) The provision may not require the resident or the
10 resident's designee to incur any initiation fees for the
11 binding-arbitration process which would be greater than the
12 filing fee applicable to the initiation of a civil action in
13 the circuit where the claim could be brought.
14 (k) This subsection applies only to contracts having
15 arbitration provisions signed on or after July 1, 2005. This
16 subsection does not apply to continuing care contracts
17 governed under chapter 651.
18 Section 13. Subsection (13) is added to section
19 409.907, Florida Statutes, to read:
20 409.907 Medicaid provider agreements.--The agency may
21 make payments for medical assistance and related services
22 rendered to Medicaid recipients only to an individual or
23 entity who has a provider agreement in effect with the agency,
24 who is performing services or supplying goods in accordance
25 with federal, state, and local law, and who agrees that no
26 person shall, on the grounds of handicap, race, color, or
27 national origin, or for any other reason, be subjected to
28 discrimination under any program or activity for which the
29 provider receives payment from the agency.
30 (13)(a) Effective January 1, 2007, and notwithstanding
31 s. 409.905(8), the agency may not renew a Medicaid provider
42
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 agreement with a chronically poor-performing nursing home
2 facility.
3 (b) Effective January 1, 2007, any nursing home
4 facility determined to be chronically poor-performing may not
5 participate in the voluntary binding arbitration provisions
6 set forth in part II of chapter 400.
7 Section 14. Subsection (2) of section 409.908, Florida
8 Statutes, is amended to read:
9 409.908 Reimbursement of Medicaid providers.--Subject
10 to specific appropriations, the agency shall reimburse
11 Medicaid providers, in accordance with state and federal law,
12 according to methodologies set forth in the rules of the
13 agency and in policy manuals and handbooks incorporated by
14 reference therein. These methodologies may include fee
15 schedules, reimbursement methods based on cost reporting,
16 negotiated fees, competitive bidding pursuant to s. 287.057,
17 and other mechanisms the agency considers efficient and
18 effective for purchasing services or goods on behalf of
19 recipients. If a provider is reimbursed based on cost
20 reporting and submits a cost report late and that cost report
21 would have been used to set a lower reimbursement rate for a
22 rate semester, then the provider's rate for that semester
23 shall be retroactively calculated using the new cost report,
24 and full payment at the recalculated rate shall be effected
25 retroactively. Medicare-granted extensions for filing cost
26 reports, if applicable, shall also apply to Medicaid cost
27 reports. Payment for Medicaid compensable services made on
28 behalf of Medicaid eligible persons is subject to the
29 availability of moneys and any limitations or directions
30 provided for in the General Appropriations Act or chapter 216.
31 Further, nothing in this section shall be construed to prevent
43
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 or limit the agency from adjusting fees, reimbursement rates,
2 lengths of stay, number of visits, or number of services, or
3 making any other adjustments necessary to comply with the
4 availability of moneys and any limitations or directions
5 provided for in the General Appropriations Act, provided the
6 adjustment is consistent with legislative intent.
7 (2)(a)1. Reimbursement to nursing homes licensed under
8 part II of chapter 400 and state-owned-and-operated
9 intermediate care facilities for the developmentally disabled
10 licensed under chapter 393 must be made prospectively.
11 2. Unless otherwise limited or directed in the General
12 Appropriations Act, reimbursement to hospitals licensed under
13 part I of chapter 395 for the provision of swing-bed nursing
14 home services must be made on the basis of the average
15 statewide nursing home payment, and reimbursement to a
16 hospital licensed under part I of chapter 395 for the
17 provision of skilled nursing services must be made on the
18 basis of the average nursing home payment for those services
19 in the county in which the hospital is located. When a
20 hospital is located in a county that does not have any
21 community nursing homes, reimbursement must be determined by
22 averaging the nursing home payments, in counties that surround
23 the county in which the hospital is located. Reimbursement to
24 hospitals, including Medicaid payment of Medicare copayments,
25 for skilled nursing services shall be limited to 30 days,
26 unless a prior authorization has been obtained from the
27 agency. Medicaid reimbursement may be extended by the agency
28 beyond 30 days, and approval must be based upon verification
29 by the patient's physician that the patient requires
30 short-term rehabilitative and recuperative services only, in
31 which case an extension of no more than 15 days may be
44
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 approved. Reimbursement to a hospital licensed under part I of
2 chapter 395 for the temporary provision of skilled nursing
3 services to nursing home residents who have been displaced as
4 the result of a natural disaster or other emergency may not
5 exceed the average county nursing home payment for those
6 services in the county in which the hospital is located and is
7 limited to the period of time which the agency considers
8 necessary for continued placement of the nursing home
9 residents in the hospital.
10 (b) Subject to any limitations or directions provided
11 for in the General Appropriations Act, the agency shall
12 establish and implement a Florida Title XIX Long-Term Care
13 Reimbursement Plan (Medicaid) for nursing home care in order
14 to provide care and services in conformance with the
15 applicable state and federal laws, rules, regulations, and
16 quality and safety standards and to ensure that individuals
17 eligible for medical assistance have reasonable geographic
18 access to such care.
19 1. Changes of ownership or of licensed operator do not
20 qualify for increases in reimbursement rates associated with
21 the change of ownership or of licensed operator. The agency
22 shall amend the Title XIX Long Term Care Reimbursement Plan to
23 provide that the initial nursing home reimbursement rates, for
24 the operating, patient care, and MAR components, associated
25 with related and unrelated party changes of ownership or
26 licensed operator filed on or after September 1, 2001, are
27 equivalent to the previous owner's reimbursement rate.
28 2. The agency shall amend the long-term care
29 reimbursement plan and cost reporting system to create direct
30 care and indirect care subcomponents of the patient care
31 component of the per diem rate. These two subcomponents
45
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 together shall equal the patient care component of the per
2 diem rate. Separate cost-based ceilings shall be calculated
3 for each patient care subcomponent. The direct care
4 subcomponent of the per diem rate shall be limited by the
5 cost-based class ceiling, and the indirect care subcomponent
6 shall be limited by the lower of the cost-based class ceiling,
7 by the target rate class ceiling, or by the individual
8 provider target. The agency shall adjust the patient care
9 component effective January 1, 2002. The cost to adjust the
10 direct care subcomponent shall be net of the total funds
11 previously allocated for the case mix add-on. The agency shall
12 make the required changes to the nursing home cost reporting
13 forms to implement this requirement effective January 1, 2002.
14 3. The direct care subcomponent shall include salaries
15 and benefits of direct care staff providing nursing services
16 including registered nurses, licensed practical nurses, and
17 certified nursing assistants who deliver care directly to
18 residents in the nursing home facility. This excludes nursing
19 administration, MDS, and care plan coordinators, staff
20 development, and staffing coordinator.
21 4. All other patient care costs shall be included in
22 the indirect care cost subcomponent of the patient care per
23 diem rate. There shall be no costs directly or indirectly
24 allocated to the direct care subcomponent from a home office
25 or management company.
26 5. On July 1 of each year, the agency shall report to
27 the Legislature direct and indirect care costs, including
28 average direct and indirect care costs per resident per
29 facility and direct care and indirect care salaries and
30 benefits per category of staff member per facility.
31
46
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 6. In order to offset the cost of general and
2 professional liability insurance, the agency shall amend the
3 plan to allow for interim rate adjustments to reflect
4 increases in the cost of general or professional liability
5 insurance for nursing homes. This provision shall be
6 implemented to the extent existing appropriations are
7 available.
8 7. Effective October 1, 2005, the agency shall amend
9 the plan to recognize increases in professional liability
10 insurance costs incurred by a nursing home facility. The
11 agency shall provide a pass-through of professional liability
12 insurance, including contributions establishing financial
13 responsibility under s. 400.141(20), in an amount that does
14 not exceed $2,500 per licensed nursing home bed. Any portion
15 of the costs of professional liability insurance which exceed
16 $2,500 per bed is recognized as an operating cost and is
17 subject to the operating-cost ceiling and target.
18 8. The agency may impose a quality assurance
19 assessment on all nursing home facilities licensed under part
20 II of chapter 400 as a provider contribution for making
21 payments, including federal matching funds, through the
22 methodologies for Medicaid nursing home reimbursement. Funds
23 received for this purpose must be accounted for separately and
24 may not be commingled with other state or local funds in any
25 manner.
26
27 It is the intent of the Legislature that the reimbursement
28 plan achieve the goal of providing access to health care for
29 nursing home residents who require large amounts of care while
30 encouraging diversion services as an alternative to nursing
31 home care for residents who can be served within the
47
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 community. The agency shall base the establishment of any
2 maximum rate of payment, whether overall or component, on the
3 available moneys as provided for in the General Appropriations
4 Act. The agency may base the maximum rate of payment on the
5 results of scientifically valid analysis and conclusions
6 derived from objective statistical data pertinent to the
7 particular maximum rate of payment.
8 Section 15. Subsection (9) of section 400.147, Florida
9 Statutes, is amended to read:
10 400.147 Internal risk management and quality assurance
11 program.--
12 (9) By the 10th of each month, each facility subject
13 to this section shall report any notice received under s.
14 400.0233(1) pursuant to s. 400.0233(2) and each initial
15 complaint that was filed with the clerk of the court and
16 served on the facility during the previous month by a resident
17 or a resident's family member, guardian, conservator, or
18 personal legal representative. The report must include the
19 name of the resident, the resident's date of birth and social
20 security number, the Medicaid identification number for
21 Medicaid-eligible persons, the date or dates of the incident
22 leading to the claim or dates of residency, if applicable, and
23 the type of injury or violation of rights alleged to have
24 occurred. Each facility shall also submit a copy of the
25 notices received under s. 400.0233(1) pursuant to s.
26 400.0233(2) and complaints filed with the clerk of the court.
27 This report is confidential as provided by law and is not
28 discoverable or admissible in any civil or administrative
29 action, except in such actions brought by the agency to
30 enforce the provisions of this part.
31
48
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 Section 16. For the purpose of incorporating the
2 amendment made to section 400.141, Florida Statutes, in a
3 reference thereto, paragraph (h) of subsection (3) of section
4 430.80, Florida Statutes, is reenacted to read:
5 430.80 Implementation of a teaching nursing home pilot
6 project.--
7 (3) To be designated as a teaching nursing home, a
8 nursing home licensee must, at a minimum:
9 (h) Maintain insurance coverage pursuant to s.
10 400.141(20) or proof of financial responsibility in a minimum
11 amount of $750,000. Such proof of financial responsibility may
12 include:
13 1. Maintaining an escrow account consisting of cash or
14 assets eligible for deposit in accordance with s. 625.52; or
15 2. Obtaining and maintaining pursuant to chapter 675
16 an unexpired, irrevocable, nontransferable and nonassignable
17 letter of credit issued by any bank or savings association
18 organized and existing under the laws of this state or any
19 bank or savings association organized under the laws of the
20 United States that has its principal place of business in this
21 state or has a branch office which is authorized to receive
22 deposits in this state. The letter of credit shall be used to
23 satisfy the obligation of the facility to the claimant upon
24 presentment of a final judgment indicating liability and
25 awarding damages to be paid by the facility or upon
26 presentment of a settlement agreement signed by all parties to
27 the agreement when such final judgment or settlement is a
28 result of a liability claim against the facility.
29 Section 17. Adjustment of arbitration
30 limits.--Effective January 1, 2007, the arbitration limits set
31 forth in sections 400.02342(7) and 400.02344(4)(a), Florida
49
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 Statutes, shall be adjusted annually for inflation as measured
2 by the Consumer Price Index for All Urban Consumers published
3 by the Bureau of Labor Statistics of the United States
4 Department of Labor.
5 Section 18. Chronically poor-performing nursing home
6 facilities.--
7 (1) It is the intent of the Legislature that the
8 Agency for Health Care Administration not renew Medicaid
9 provider agreements with any nursing home facility that has a
10 pattern, over time, of actual harm or immediate jeopardy
11 citations in accordance with state and federal licensure and
12 certification requirements. These facilities, are known as
13 chronically poor-performing nursing home facilities. To abide
14 by the intent of the Legislature, the agency, after consulting
15 with the Florida Health Care Association, the Florida
16 Association of Homes for the Aged, and the American
17 Association of Retired Persons (AARP), shall:
18 (a) Define a chronically poor-performing nursing
19 facility with a specific period of time for determining a
20 pattern.
21 (b) Identify, notify, monitor, measure improvement,
22 and, when appropriate, implement nonrenewal of the Medicaid
23 agreements for chronically poor-performing nursing home
24 facilities.
25 (c) Foster the improvement of chronically
26 poor-performing nursing home facilities by including time
27 limits for demonstrating measurable improvement, including
28 identifying criteria that measure the improvement.
29 (d) Analyze and prepare a report regarding the
30 existing Medicaid Up-or-Out Program authorized in section
31 400.148, Florida Statutes, including the progress of
50
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 participating nursing home facilities, benefits of the
2 program, and success in achieving the intended goals.
3 (e) Review all administrative procedures and barriers
4 relating to identifying and eliminating chronically
5 poor-performing nursing home facilities and make
6 recommendations for necessary statutory changes to eliminate
7 barriers.
8 (2) It is the intent of the Legislature that a study
9 be conducted of all federal and state enforcement sanctions
10 and remedies available to the Agency for Health Care
11 Administration for use with nursing home facilities. The study
12 must include, but need not be limited to, a review and
13 evaluation of the agency's use over the past 5 years of
14 receivership, civil money penalties, and denial of payment for
15 new admissions. The study must also evaluate the state survey
16 process, including statewide consistency in survey findings by
17 state area office, the systemic costs for survey appeals, the
18 effectiveness and objectivity of the informal
19 dispute-resolution process in resolving disputes, and recent
20 experiences of reversals of final orders of the agency and
21 modifications of the state's administrative actions concerning
22 surveys and ratings. The results of the study shall be
23 presented to the Governor, the President of the Senate, and
24 the Speaker of the House of Representatives by February 1,
25 2006.
26 Section 19. The Agency for Health Care Administration
27 must establish a health care quality improvement system for
28 nursing home facilities licensed in this state. The system
29 shall include, but need not be limited to, the following:
30 (1) Guidelines for internal quality assurance
31 programs, including standards for:
51
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 (a) Written quality assurance program descriptions.
2 (b) Responsibilities of the governing body for
3 monitoring, evaluating, and improving care.
4 (c) An active quality assurance committee.
5 (d) Quality assurance program supervision.
6 (e) Requiring the program to have adequate resources
7 to effectively carry out its specified activities.
8 (f) Provider participation in the quality assurance
9 program.
10 (g) Delegation of quality assurance program
11 activities.
12 (h) Credentialing and recredentialing.
13 (i) Enrollee rights and responsibilities.
14 (j) Availability and accessibility to services and
15 care.
16 (k) Accessibility and availability of medical records,
17 as well as proper recordkeeping and process for record review.
18 (l) Utilization review.
19 (m) A continuity of care system.
20 (n) Quality assurance program documentation.
21 (o) Coordination of quality assurance activity with
22 other management activity.
23 (2) Guidelines requiring the entities to conduct
24 quality-of-care studies that:
25 (a) Target specific conditions and specific health
26 service delivery issues for focused monitoring and evaluation.
27 (b) Use clinical care standards or practice guidelines
28 to objectively evaluate the care the entity delivers or fails
29 to deliver for the targeted clinical conditions and health
30 services delivery issues.
31
52
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 (c) Use quality indicators derived from the clinical
2 care standards or practice guidelines to screen and monitor
3 care and services delivered.
4 (3) Guidelines for external quality review of each
5 contractor which require: focused studies of patterns of care;
6 individual care review in specific situations; and followup
7 activities on previous pattern-of-care study findings and
8 individual-care-review findings. In designing the external
9 quality review function and determining how it is to operate
10 as part of the state's overall quality improvement system, the
11 agency shall construct its external quality review
12 organization and entity contracts to address each of the
13 following:
14 (a) Delineating the role of the external quality
15 review organization.
16 (b) Length of the external quality review organization
17 contract with the state.
18 (c) Participation of the contracting entities in
19 designing external quality review organization review
20 activities.
21 (d) Potential variation in the type of clinical
22 conditions and health services delivery issues to be studied
23 at each plan.
24 (e) Determining the number of focused pattern-of-care
25 studies to be conducted for each plan.
26 (f) Methods for implementing focused studies.
27 (g) Individual care review.
28 (9) Followup activities.
29 Section 20. Assessments of nursing home facilities.--
30 (1) Effective October 1, 2005, each nursing home
31 facility licensed under chapter 400, Florida Statutes, shall
53
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 pay an annual assessment for each licensed bed in the
2 facility. The funds raised by the assessment are intended to
3 ensure access to nursing home services by the state's elderly
4 population. The funds raised by the assessment shall be used
5 as provided in this section.
6 (2) The amount of the annual assessment shall be
7 determined in the following manner:
8 (a) The initial annual assessment shall be $10 per bed
9 per day. Thereafter, the assessment shall be adjusted annually
10 for inflation as measured by the Consumer Price Index for All
11 Urban Consumers published by the Bureau of Labor Statistics of
12 the United States Department of Labor.
13 (b) The initial assessment shall be determined by the
14 Agency for Health Care Administration and shall be based on
15 the agency's determination of the needs that will be paid for
16 by the assessment and the ability of nursing home service
17 providers to pay the assessment.
18 (3)(a) It is the intent of the Legislature that funds
19 derived from the assessment may not be used to supplement
20 existing funding of programs providing nursing home services,
21 but rather to enhance the services provided by the current
22 funding.
23 (b) All funds collected from the assessment must be
24 used to meet the minimum certified nursing assistant staffing
25 of 2.9 hours of direct care per resident per day as required
26 by section 400.23(3), Florida Statutes.
27 Section 21. If any portion of this act, including this
28 section, is found to be unconstitutional, the entire act shall
29 be null, void, and of no effect.
30 Section 22. Except as otherwise expressly provided in
31 this act, this act shall take effect October 1, 2005.
54
CODING: Words stricken are deletions; words underlined are additions.
Florida Senate - 2005 SB 2390
32-916C-05
1 *****************************************
2 SENATE SUMMARY
3 Provides legislative findings and intent relating to
liability insurance for nursing home facilities. Requires
4 a resident or the resident's legal representative to
include a certificate of compliance when a complaint
5 alleging a violation of a resident's rights is filed with
the clerk of court. Requires that the presuit notice be
6 given to each prospective defendant. Requires that
certain specified information be included with the
7 notice. Provides that any party may elect to participate
in voluntary binding arbitration. Provides the procedures
8 to initiate and conduct a voluntary binding arbitration.
Permits the parties to use private arbitrators. Requires
9 multiple defendants to a binding arbitration proceeding
to apportion a damage award amongst themselves through a
10 second arbitration proceeding. Providing that a
participating defendant has a cause of action for
11 contribution from other defendants. Provides consequences
for a claimant or defendant that fails to participate in
12 binding arbitration. Creates procedures to determine if a
specific claim is subject to binding arbitration.
13 Requires a defendant to pay a damage award within a
specified time period. Provides for an appeal of an
14 arbitration or apportionment award. Authorizes a party to
an arbitration or apportionment proceeding to enforce an
15 arbitration award or an apportionment of financial
responsibility. Requires a nursing home facility to
16 maintain general and professional liability insurance
with specified insurance carriers. Provides alternative
17 methods to establish financial responsibility for claims
filed against the nursing home. Provides criteria for a
18 resident's contract which include arbitration or dispute
resolution provisions. Directs the Agency for Health Care
19 Administration not to renew a Medicaid provider agreement
with a chronically poor-performing nursing home facility.
20 Requires the agency to recognize increases in
professional liability insurance costs by providing a
21 pass-through of professional liability insurance in a
specified amount. Requires that arbitration limits be
22 adjusted annually for inflation. Directs the agency to
consult with certain specified private organizations to
23 identify and improve poor-performing nursing homes.
Requires the agency to prepare a report of the Medicaid
24 "Up-or-Out Program." Provides legislative intent that a
study be conducted of all federal and state enforcement
25 sanctions and remedies available to the agency to use
with nursing home facilities. Requires a report of the
26 findings of the study to be submitted by a specified
date. Requires each nursing home facility to pay an
27 annual assessment on each licensed bed after a specified
date. Provides for the use of the funds collected.
28 Provides a method by which the assessment will be
determined. (See bill for details.)
29
30
31
55
CODING: Words stricken are deletions; words underlined are additions.