Senate Bill sb2390

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    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

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 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

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 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

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 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:

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 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.

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 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  

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 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.

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 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.

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 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  

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 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

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 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

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 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  

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 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

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 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  

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 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.

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 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

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 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.

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 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  

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 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  

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 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

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 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

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 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

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 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

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 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  

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 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

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 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

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 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.

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 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

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 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

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 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

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 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

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 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

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 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  

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 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

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 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  

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 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.

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 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

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 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

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 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  

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 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

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 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

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 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

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 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

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 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

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 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

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 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  

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 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

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 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  

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 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

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 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

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 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:

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 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  

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 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

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 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.

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 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  

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