Senate Bill sb0388c1

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    Florida Senate - 2006                            CS for SB 388

    By the Committee on Health Care; and Senator Argenziano





    587-1713-06

  1                      A bill to be entitled

  2         An act relating to assisted care communities;

  3         creating ch. 429, F.S.; transferring part III

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

  5         facilities, to part I of ch. 429, F.S.;

  6         transferring part VII of ch. 400, F.S.,

  7         relating to adult family-care homes, to part II

  8         of ch. 429, F.S.; transferring part V of ch.

  9         400, F.S., relating to adult day care centers,

10         to part III of ch. 429, F.S.; amending ss.

11         101.655, 189.428, 196.1975, 202.125, 205.1965,

12         212.031, 212.08, 296.02, 381.0035, 381.745,

13         393.063, 393.506, 394.455, 394.4574, 394.463,

14         400.0063, 400.0069, 400.0073, 400.0077,

15         400.0239, 400.119, 400.141, 400.191, 400.215,

16         400.402, 400.404, 400.407, 400.4071, 400.408,

17         400.411, 400.412, 400.414, 400.415, 400.417,

18         400.4174, 400.4176, 400.4178, 400.418, 400.419,

19         400.42, 400.422, 400.424, 400.4255, 400.4256,

20         400.426, 400.427, 400.428, 400.429, 400.4293,

21         400.431, 400.441, 400.442, 400.444, 400.447,

22         400.452, 400.462, 400.464, 400.497, 400.55,

23         400.551, 400.552, 400.553, 400.554, 400.555,

24         400.556, 400.5565, 400.557, 400.5571, 400.5572,

25         400.5575, 400.558, 400.559, 400.56, 400.562,

26         400.563, 400.564, 400.601, 400.616, 400.617,

27         400.618, 400.619, 400.6194, 400.6196, 400.621,

28         400.6211, 400.622, 400.625, 400.6255, 400.628,

29         400.629, 400.93, 400.962, 400.980, 400.9905,

30         401.23, 402.164, 408.032, 408.033, 408.034,

31         408.831, 409.212, 409.905, 409.906, 409.907,

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 1         409.912, 410.031, 410.034, 415.1111, 430.601,

 2         430.703, 435.03, 435.04, 440.13, 465.0235,

 3         468.1685, 468.505, 477.025, 509.032, 509.241,

 4         627.732, 651.011, 651.022, 651.023, 651.055,

 5         651.095, 651.118, 765.1103, 765.205, 768.735,

 6         893.13, 943.0585, and 943.059, F.S., to conform

 7         references to changes made by the act;

 8         requesting the Division of Statutory Revision

 9         to make necessary conforming changes to the

10         Florida Statutes; providing an effective date.

11  

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

13  

14         Section 1.  Chapter 429, Florida Statutes, is created,

15  to be entitled "Assisted Care Communities."

16         Section 2.  Sections 400.401, 400.402, 400.404,

17  400.407, 400.4071, 400.4075, 400.408, 400.411, 400.412,

18  400.414, 400.415, 400.417, 400.4174, 400.4176, 400.4177,

19  400.4178, 400.418, 400.419, 400.4195, 400.42, 400.421,

20  400.422, 400.423, 400.424, 400.4255, 400.4256, 400.426,

21  400.427, 400.4275, 400.428, 400.429, 400.4293, 400.4294,

22  400.4295, 400.4296, 400.4297, 400.4298, 400.431, 400.434,

23  400.435, 400.441, 400.442, 400.444, 400.4445, 400.447,

24  400.449, 400.451, 400.452, 400.453, and 400.454, Florida

25  Statutes, are renumbered as sections 429.01, 429.02, 429.04,

26  429.07, 429.071, 429.075, 429.08, 429.11, 429.12, 429.14,

27  429.15, 429.17, 429.174, 429.176, 429.177, 429.178, 429.18,

28  429.19, 429.195, 429.20, 429.21, 429.22, 429.23, 429.24,

29  429.255, 429.256, 429.26, 429.27, 429.275, 429.28, 429.29,

30  429.293, 429.294, 429.295, 429.296, 429.297, 429.298, 429.31,

31  429.34, 429.35, 429.41, 429.42, 429.44, 429.445, 429.47,

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 1  429.49, 429.51, 429.52, 429.53, and 429.54, Florida Statutes,

 2  respectively, designated as part I of chapter 429, Florida

 3  Statutes, and entitled "ASSISTED LIVING FACILITIES."

 4         Section 3.  Sections 400.616, 400.617, 400.618,

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

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

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

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

 9  429.87, Florida Statutes, respectively, designated as part II

10  of chapter 429, Florida Statutes, and entitled "ADULT

11  FAMILY-CARE HOMES."

12         Section 4.  Sections 400.55, 400.551, 400.552, 400.553,

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

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

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

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

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

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

19  Statutes, designated as part III of chapter 429, Florida

20  Statutes, and entitled "ADULT DAY CARE CENTERS."

21         Section 5.  Subsection (1) of section 101.655, Florida

22  Statutes, is amended to read:

23         101.655  Supervised voting by absent electors in

24  certain facilities.--

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

26  provide supervised voting for absent electors residing in any

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

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

29  that county at the request of any administrator of such a

30  facility. Such request for supervised voting in the facility

31  shall be made by submitting a written request to the

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 1  supervisor of elections no later than 21 days prior to the

 2  election for which that request is submitted. The request

 3  shall specify the name and address of the facility and the

 4  name of the electors who wish to vote absentee in that

 5  election. If the request contains the names of fewer than five

 6  voters, the supervisor of elections is not required to provide

 7  supervised voting.

 8         Section 6.  Subsection (9) of section 189.428, Florida

 9  Statutes, is amended to read:

10         189.428  Special districts; oversight review process.--

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

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

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

14  airport authority operating in compliance with an airport

15  master plan approved by the Federal Aviation Administration,

16  or to any special district organized to operate health systems

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

18  chapter 429.

19         Section 7.  Paragraph (b) of subsection (2) of section

20  196.1975, Florida Statutes, is amended to read:

21         196.1975  Exemption for property used by nonprofit

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

23  to the extent that they meet the following criteria:

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

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

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

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

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

29  by the Agency for Health Care Administration is required for

30  ad valorem tax exemption hereunder only if the home:

31  

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 1         (b)  Qualifies as an assisted living facility under

 2  part III of chapter 429 400.

 3         Section 8.  Paragraph (c) of subsection (4) of section

 4  202.125, Florida Statutes, is amended to read:

 5         202.125  Sales of communications services; specified

 6  exemptions.--

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

 8  the aged, religious institution or educational institution

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

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

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

12  Internal Revenue Code having an established physical place for

13  worship at which nonprofit religious services and activities

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

15  taxes imposed or administered pursuant to ss. 202.12 and

16  202.19. As used in this subsection, the term:

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

18  corporation:

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

20  62 years of age or older or totally and permanently disabled;

21  which qualifies for an ad valorem property tax exemption under

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

23  from the sales tax imposed under chapter 212.

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

25  assisted living facility under chapter 429 400 and which is

26  exempt from the sales tax imposed under chapter 212.

27         Section 9.  Section 205.1965, Florida Statutes, is

28  amended to read:

29         205.1965  Assisted living facilities.--A county or

30  municipality may not issue an occupational license for the

31  operation of an assisted living facility pursuant to part III

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 1  of chapter 429 400 without first ascertaining that the

 2  applicant has been licensed by the Agency for Health Care

 3  Administration to operate such facility at the specified

 4  location or locations.  The Agency for Health Care

 5  Administration shall furnish to local agencies responsible for

 6  issuing occupational licenses sufficient instructions for

 7  making the above required determinations.

 8         Section 10.  Paragraph (b) of subsection (1) of section

 9  212.031, Florida Statutes, is amended to read:

10         212.031  Tax on rental or license fee for use of real

11  property.--

12         (1)

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

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

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

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

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

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

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

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

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

22  for-profit entity providing a residential facility for the

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

24  calculated by combining the square footage of the areas used

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

26  residents and dividing the resultant sum by the total square

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

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

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

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

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

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 1  loan made or insured by the United States Department of

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

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

 4  National Housing Act; or other such similar facility that

 5  provides residences primarily for the elderly.

 6         Section 11.  Paragraph (i) of subsection (7) of section

 7  212.08, Florida Statutes, is amended to read:

 8         212.08  Sales, rental, use, consumption, distribution,

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

10  the rental, the use, the consumption, the distribution, and

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

12  following are hereby specifically exempt from the tax imposed

13  by this chapter.

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

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

16  that is otherwise taxable under this chapter when payment is

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

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

19  card, even when that representative or employee is

20  subsequently reimbursed by the entity. In addition, exemptions

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

22  transaction that is otherwise taxable under this chapter

23  unless the entity has obtained a sales tax exemption

24  certificate from the department or the entity obtains or

25  provides other documentation as required by the department.

26  Eligible purchases or leases made with such a certificate must

27  be in strict compliance with this subsection and departmental

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

29  certificate that is not in strict compliance with this

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

31  The department may adopt rules to administer this subsection.

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

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

 3  meals are patients and inmates of any hospital or other

 4  physical plant or facility designed and operated primarily for

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

 6  physically incapacitated, or otherwise dependent on special

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

 8  from payment of taxes on meals provided through the facility.

 9  A home for the aged is defined as a facility that is licensed

10  or certified in part or in whole under chapter 400, chapter

11  429, or chapter 651, or that is financed by a mortgage loan

12  made or insured by the United States Department of Housing and

13  Urban Development under s. 202, s. 202 with a s. 8 subsidy, s.

14  221(d)(3) or (4), s. 232, or s. 236 of the National Housing

15  Act, or other such similar facility designed and operated

16  primarily for the care of the aged.

17         Section 12.  Subsection (5) of section 296.02, Florida

18  Statutes, is amended to read:

19         296.02  Definitions.--For the purposes of this part,

20  except where the context clearly indicates otherwise:

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

22  to that term under s. 429.02 s. 400.402.

23         Section 13.  Subsections (1) and (3) of section

24  381.0035, Florida Statutes, are amended to read:

25         381.0035  Educational course on HIV and AIDS; employees

26  and clients of certain health care facilities.--

27         (1)  The Department of Health shall require all

28  employees and clients of facilities licensed under chapters

29  393, 394, and 397 and employees of facilities licensed under

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

31  and part I of chapter 429 to complete, biennially, a

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 1  continuing educational course on the modes of transmission,

 2  infection control procedures, clinical management, and

 3  prevention of human immunodeficiency virus and acquired immune

 4  deficiency syndrome with an emphasis on appropriate behavior

 5  and attitude change. Such instruction shall include

 6  information on current Florida law and its impact on testing,

 7  confidentiality of test results, and treatment of patients and

 8  any protocols and procedures applicable to human

 9  immunodeficiency counseling and testing, reporting, the

10  offering of HIV testing to pregnant women, and partner

11  notification issues pursuant to ss. 381.004 and 384.25.

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

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

14  part I of chapter 429 shall maintain a record of employees and

15  dates of attendance at human immunodeficiency virus and

16  acquired immune deficiency syndrome educational courses.

17         Section 14.  Subsection (9) of section 381.745, Florida

18  Statutes, is amended to read:

19         381.745  Definitions; ss. 381.739-381.79.--As used in

20  ss. 381.739-381.79, the term:

21         (9)  "Transitional living facility" means a

22  state-approved facility, as defined and licensed under chapter

23  400 or chapter 429, or a facility approved by the brain and

24  spinal cord injury program in accordance with this chapter.

25         Section 15.  Subsection (24) of section 393.063,

26  Florida Statutes, is amended to read:

27         393.063  Definitions.--For the purposes of this

28  chapter:

29         (24)  "Intermediate care facility for the

30  developmentally disabled" or "ICF/DD" means a residential

31  

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 1  facility licensed and certified pursuant to part VIII XI of

 2  chapter 400.

 3         Section 16.  Paragraph (b) of subsection (1) of section

 4  393.506, Florida Statutes, is amended to read:

 5         393.506  Administration of medication.--

 6         (1)  Notwithstanding the provisions of part I of

 7  chapter 464, the Nurse Practice Act, unlicensed direct care

 8  services staff providing services to persons with

 9  developmental disabilities may administer oral, transdermal,

10  inhaled, or topical prescription medications as provided in

11  this section.

12         (b)  For intermediate care facilities for the

13  developmentally disabled licensed pursuant to part VIII XI of

14  chapter 400, unlicensed staff designated by the director may

15  provide medication assistance under the general supervision of

16  a registered nurse licensed pursuant to chapter 464.

17         Section 17.  Subsection (10) of section 394.455,

18  Florida Statutes, is amended to read:

19         394.455  Definitions.--As used in this part, unless the

20  context clearly requires otherwise, the term:

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

22  facility, public or private facility, or receiving or

23  treatment facility providing for the evaluation, diagnosis,

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

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

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

27  program or entity licensed pursuant to chapter 400 or chapter

28  429.

29         Section 18.  Paragraphs (b), (c), and (e) of subsection

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

31  read:

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 1         394.4574  Department responsibilities for a mental

 2  health resident who resides in an assisted living facility

 3  that holds a limited mental health license.--

 4         (2)  The department must ensure that:

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

 6  s. 400.4075, is developed between the mental health care

 7  services provider that serves a mental health resident and the

 8  administrator of the assisted living facility with a limited

 9  mental health license in which the mental health resident is

10  living. Any entity that provides Medicaid prepaid health plan

11  services shall ensure the appropriate coordination of health

12  care services with an assisted living facility in cases where

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

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

15  the entity is at risk for Medicaid targeted case management

16  and behavioral health services, the entity shall inform the

17  assisted living facility of the procedures to follow should an

18  emergent condition arise.

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

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

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

22  consultation with the administrator of the facility or the

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

24  administrator of the assisted living facility with a limited

25  mental health license in which the mental health resident

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

27  document.

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

29  manager to each mental health resident who lives in an

30  assisted living facility with a limited mental health license.

31  The case manager is responsible for coordinating the

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 1  development of and implementation of the community living

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

 3  updated at least annually.

 4         Section 19.  Paragraph (b) of subsection (2) of section

 5  394.463, Florida Statutes, is amended to read:

 6         394.463  Involuntary examination.--

 7         (2)  INVOLUNTARY EXAMINATION.--

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

 9  residential placement licensed under chapter 400 or chapter

10  429 and transported to a receiving facility for involuntary

11  examination unless an ex parte order, a professional

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

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

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

15  practicable before removal, the report shall be completed as

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

17  person is transported to a receiving facility.  A receiving

18  facility admitting a person for involuntary examination who is

19  not accompanied by the required ex parte order, professional

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

21  the Agency for Health Care Administration of such admission by

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

23  provisions of this paragraph do not apply when transportation

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

25         Section 20.  Paragraph (b) of subsection (3) of section

26  400.0063, Florida Statutes, is amended to read:

27         400.0063  Establishment of Office of State Long-Term

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

29         (3)

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

31  but not be limited to:

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 1         1.  Assisting the ombudsman in carrying out the duties

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

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

 4         2.  Assisting the state and local ombudsman councils in

 5  carrying out their responsibilities under this part.

 6         3.  Initiating and prosecuting legal and equitable

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

 8  residents as defined in this chapter or chapter 429.

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

10  ombudsman councils, or individual members thereof, against

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

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

13  an individual member.

14         Section 21.  Subsection (3) of section 400.0069,

15  Florida Statutes, is amended to read:

16         400.0069  Local long-term care ombudsman councils;

17  duties; membership.--

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

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

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

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

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

23         Section 22.  Paragraphs (c) and (f) of subsection (5)

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

25  amended to read:

26         400.0073  State and local ombudsman council

27  investigations.--

28         (5)  Any onsite administrative inspection conducted by

29  an ombudsman council shall be subject to the following:

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

31  will impose no unreasonable burden on nursing homes or

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 1  long-term care facilities, consistent with the underlying

 2  purposes of this part and chapter 429. Unnecessary duplication

 3  of efforts among council members or the councils shall be

 4  reduced to the extent possible.

 5         (f)  All inspections shall be limited to compliance

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

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

 8  regulations promulgated pursuant to such laws.

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

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

11  any ombudsman council member constitutes a violation of part

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

13         Section 23.  Subsection (4) of section 400.0077,

14  Florida Statutes, is amended to read:

15         400.0077  Confidentiality.--

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

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

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

19  except as may be necessary to enforce the provisions of this

20  act.

21         Section 24.  Subsection (1) of section 400.0239,

22  Florida Statutes, is amended to read:

23         400.0239  Quality of Long-Term Care Facility

24  Improvement Trust Fund.--

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

26  Administration a Quality of Long-Term Care Facility

27  Improvement Trust Fund to support activities and programs

28  directly related to improvement of the care of nursing home

29  and assisted living facility residents. The trust fund shall

30  be funded through proceeds generated pursuant to ss. 400.0238

31  and 429.298 400.4298, through funds specifically appropriated

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

 2  charitable contributions allowed under federal and state law,

 3  and through federal nursing home civil monetary penalties

 4  collected by the Centers for Medicare and Medicaid Services

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

 6  accordance with federal requirements.

 7         Section 25.  Subsections (1) and (4) of section

 8  400.119, Florida Statutes, are amended to read:

 9         400.119  Confidentiality of records and meetings of

10  risk management and quality assurance committees.--

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

12  quality assurance committee of a long-term care facility

13  licensed under this part or part I III of this chapter 429, as

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

15  manager and administrator, notifications of the occurrence of

16  an adverse incident, and adverse incident reports from the

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

18  24(a), Art. I of the State Constitution. However, if the

19  Agency for Health Care Administration has a reasonable belief

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

21  criminal activity or grounds for disciplinary action by a

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

23  appropriate law enforcement agency or regulatory board.

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

25  quality assurance committee of a long-term care facility

26  licensed under this part or part I III of this chapter 429 are

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

28  Constitution and are not open to the public.

29         Section 26.  Subsections (4) and (7) of section

30  400.141, Florida Statutes, are amended to read:

31  

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 1         400.141  Administration and management of nursing home

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

 3  applicable standards and rules of the agency and shall:

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

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

 6  contrary notwithstanding, a registered pharmacist licensed in

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

 8  this chapter or chapter 429, shall repackage a nursing

 9  facility resident's bulk prescription medication which has

10  been packaged by another pharmacist licensed in any state in

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

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

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

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

15  receive prescription medication benefits provided through a

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

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

18  Revenue Code, a federal retirement program as specified under

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

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

21  relabels the medication and the nursing facility which

22  correctly administers such repackaged medication under the

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

24  civil or administrative action arising from the repackaging.

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

26  facility resident for whom the medication is to be repackaged

27  shall sign an informed consent form provided by the facility

28  which includes an explanation of the repackaging process and

29  which notifies the resident of the immunities from liability

30  provided herein. A pharmacist who repackages and relabels

31  prescription medications, as authorized under this subsection,

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 1  may charge a reasonable fee for costs resulting from the

 2  implementation of this provision.

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

 4  Gold Seal facility, exceeds the minimum required hours of

 5  licensed nursing and certified nursing assistant direct care

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

 7  facility licensed under chapter 651 or a retirement community

 8  that offers other services pursuant to part III of this

 9  chapter or part I or part III of chapter 429, part IV, or part

10  V on a single campus, be allowed to share programming and

11  staff. At the time of inspection and in the semiannual report

12  required pursuant to subsection (15), a continuing care

13  facility or retirement community that uses this option must

14  demonstrate through staffing records that minimum staffing

15  requirements for the facility were met. Licensed nurses and

16  certified nursing assistants who work in the nursing home

17  facility may be used to provide services elsewhere on campus

18  if the facility exceeds the minimum number of direct care

19  hours required per resident per day and the total number of

20  residents receiving direct care services from a licensed nurse

21  or a certified nursing assistant does not cause the facility

22  to violate the staffing ratios required under s. 400.23(3)(a).

23  Compliance with the minimum staffing ratios shall be based on

24  total number of residents receiving direct care services,

25  regardless of where they reside on campus. If the facility

26  receives a conditional license, it may not share staff until

27  the conditional license status ends. This subsection does not

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

29  require additional staff if a facility is cited for

30  deficiencies in care which are caused by an insufficient

31  number of certified nursing assistants or licensed nurses. The

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 1  agency may adopt rules for the documentation necessary to

 2  determine compliance with this provision.

 3  

 4  Facilities that have been awarded a Gold Seal under the

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

 6  provide certified nursing assistant training as prescribed by

 7  federal regulations and state rules and may apply to the

 8  agency for approval of their program.

 9         Section 27.  Paragraph (a) of subsection (2) of section

10  400.191, Florida Statutes, is amended to read:

11         400.191  Availability, distribution, and posting of

12  reports and records.--

13         (2)  The agency shall provide additional information in

14  consumer-friendly printed and electronic formats to assist

15  consumers and their families in comparing and evaluating

16  nursing home facilities.

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

18  shall include at least the following information either

19  directly or indirectly through a link to another established

20  site or sites of the agency's choosing:

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

22  facilities in this state.

23         2.  Whether such nursing home facilities are

24  proprietary or nonproprietary.

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

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

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

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

29  organization owning or managing more than one nursing facility

30  in this state.

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

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

 2  facility.

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

 4  facility.

 5         8.  The languages spoken by the administrator and staff

 6  of each facility.

 7         9.  Whether or not each facility accepts Medicare or

 8  Medicaid recipients or insurance, health maintenance

 9  organization, Veterans Administration, CHAMPUS program, or

10  workers' compensation coverage.

11         10.  Recreational and other programs available at each

12  facility.

13         11.  Special care units or programs offered at each

14  facility.

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

16  community that offers other services pursuant to part III of

17  this chapter or part I or part III of chapter 429, part IV, or

18  part V.

19         13.  Survey and deficiency information contained on the

20  Online Survey Certification and Reporting (OSCAR) system of

21  the federal Health Care Financing Administration, including

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

23  each facility for the past 45 months.  For noncertified

24  nursing homes, state survey and deficiency information,

25  including annual survey, revisit, and complaint survey

26  information for the past 45 months shall be provided.

27         14.  A summary of the Online Survey Certification and

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

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

30  comparison ranking with respect to other facilities based on

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

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

 2  citations; and the number of annual recertification surveys

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

 4  rating, or comparison ranking may be presented in either

 5  numeric or symbolic form for the intended consumer audience.

 6         Section 28.  Paragraph (b) of subsection (2) of section

 7  400.215, Florida Statutes, is amended to read:

 8         400.215  Personnel screening requirement.--

 9         (2)  Employers and employees shall comply with the

10  requirements of s. 435.05.

11         (b)  Employees qualified under the provisions of

12  paragraph (a) who have not maintained continuous residency

13  within the state for the 5 years immediately preceding the

14  date of request for background screening must complete level 2

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

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

17  written findings evidencing the completion of level 2

18  screening. Level 2 screening shall not be required of

19  employees or prospective employees who attest in writing under

20  penalty of perjury that they meet the residency requirement.

21  Completion of level 2 screening shall require the employee or

22  prospective employee to furnish to the nursing facility a full

23  set of fingerprints to enable a criminal background

24  investigation to be conducted. The nursing facility shall

25  submit the completed fingerprint card to the agency. The

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

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

28  Department of Law Enforcement, which is authorized to submit

29  the fingerprints to the Federal Bureau of Investigation for a

30  national criminal history records check. The results of the

31  national criminal history records check shall be returned to

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

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

 3  administrator of the requesting nursing facility or the

 4  administrator of any other facility licensed under chapter

 5  393, chapter 394, chapter 395, chapter 397, chapter 429, or

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

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

 8  screening. An employee or prospective employee who has

 9  qualified under level 2 screening and has maintained such

10  continuous residency within the state shall not be required to

11  complete a subsequent level 2 screening as a condition of

12  employment at another facility.

13         Section 29.  Section 400.402, Florida Statutes, is

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

15  read:

16         429.02 400.402  Definitions.--When used in this part,

17  the term:

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

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

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

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

22  years of age who is responsible for the operation and

23  maintenance of an assisted living facility.

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

25  Administration.

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

27  process of providing increased or adjusted services to a

28  person to compensate for the physical or mental decline that

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

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

31  a familiar, noninstitutional, residential environment for as

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

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

 3  arrangements with a third party.

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

 5  corporation, partnership, firm, association, or governmental

 6  entity that applies for a license.

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

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

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

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

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

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

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

14  or administrator.

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

16  that physically limits, restricts, or deprives an individual

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

18  convenience and not required for the treatment of medical

19  symptoms.

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

21  document prepared by a mental health resident and the

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

23  administrator of an assisted living facility with a limited

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

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

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

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

28  living facility and a method by which facility staff can

29  recognize and respond to the signs and symptoms particular to

30  that resident which indicate the need for professional

31  services.

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

 2  of understanding between a mental health care provider and the

 3  administrator of the assisted living facility with a limited

 4  mental health license in which a mental health resident is

 5  living. The agreement must specify directions for accessing

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

 7  A single cooperative agreement may service all mental health

 8  residents who are clients of the same mental health care

 9  provider.

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

11  Affairs.

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

13  condition, or method of operation which presents imminent

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

15  residents.

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

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

18  pursuant to part I of chapter 464 by persons licensed

19  thereunder while carrying out their professional duties, and

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

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

22  place in a residential environment despite mental or physical

23  limitations that might otherwise disqualify them from

24  residency in a facility licensed under this part.

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

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

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

28  incapacitated.

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

30  performed pursuant to part I of chapter 464 by persons

31  licensed thereunder while carrying out their professional

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 1  duties but limited to those acts which the department

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

 3  allowable limited nursing services shall be for persons who

 4  meet the admission criteria established by the department for

 5  assisted living facilities and shall not be complex enough to

 6  require 24-hour nursing supervision and may include such

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

 8  care of casts, braces, and splints.

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

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

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

12  representative or designee or the resident's surrogate,

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

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

15  explained to all parties and reviewed periodically in

16  conjunction with the service plan, taking into account changes

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

18  respond accordingly.

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

20  receives social security disability income due to a mental

21  disorder as determined by the Social Security Administration

22  or receives supplemental security income due to a mental

23  disorder as determined by the Social Security Administration

24  and receives optional state supplementation.

25         (17)  "Personal services" means direct physical

26  assistance with or supervision of the activities of daily

27  living and the self-administration of medication and other

28  similar services which the department may define by

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

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

31  services.

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

 2  physically limits, restricts, or deprives an individual of

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

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

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

 6  any device which was not specifically manufactured as a

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

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

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

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

11  mother, stepfather, stepmother, son, daughter, brother,

12  sister, grandmother, grandfather, great-grandmother,

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

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

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

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

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

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

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

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

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

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

23  competent, to receive notice of changes in the contract

24  executed pursuant to s. 429.24 s. 400.424; to receive notice

25  of and to participate in meetings between the resident and the

26  facility owner, administrator, or staff concerning the rights

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

28  ombudsman council if the resident has a complaint against the

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

30  pursuant to s. 429.29 s. 400.429.

31  

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

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

 3  resident's representative or designee or the resident's

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

 5  administrator or designee representing the facility, which

 6  addresses the unique physical and psychosocial needs,

 7  abilities, and personal preferences of each resident receiving

 8  extended congregate care services. The plan shall include a

 9  brief written description, in easily understood language, of

10  what services shall be provided, who shall provide the

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

12  purposes and benefits of the services.

13         (23)  "Shared responsibility" means exploring the

14  options available to a resident within a facility and the

15  risks involved with each option when making decisions

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

17  service needs, thereby enabling the resident and, if

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

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

20  facility to develop a service plan which best meets the

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

22  of life.

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

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

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

26  cuing to residents while they perform these activities.

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

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

29  Government guarantees a minimum monthly income to every person

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

31  income and asset requirements.

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

 2  encourage and assist aged persons or adults with disabilities

 3  to remain in the least restrictive living environment and to

 4  maintain their independence as long as possible.

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

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

 7  condition requires the supervision of a physician and

 8  continued monitoring of vital signs and physical status.  Such

 9  services shall be: medically complex enough to require

10  constant supervision, assessment, planning, or intervention by

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

12  supervision of licensed nursing personnel or other

13  professional personnel for safe and effective performance;

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

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

16  stage.

17         Section 30.  Section 400.404, Florida Statutes, is

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

19  read:

20         429.04 400.404  Facilities to be licensed;

21  exemptions.--

22         (1)  For the administration of this part, facilities to

23  be licensed by the agency shall include all assisted living

24  facilities as defined in this part.

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

26  part:

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

28  by the Federal Government or any agency of the Federal

29  Government.

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

31  chapter 393 or chapter 394.

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

 2  under part II of chapter 429 VII.

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

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

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

 6  state supplementation. The person who provides the housing,

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

 8  reside therein.

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

10  Department of Veterans Affairs as a residential care home

11  wherein care is provided exclusively to three or fewer

12  veterans.

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

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

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

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

17  transferred; or any facility, with improvements or additions

18  thereto, which has existed and operated continuously in this

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

20  directly or indirectly owned and operated by a nationally

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

22  and accepts only its own members and their spouses as

23  residents.

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

25  retirement community, may provide services authorized under

26  this part or part III IV of this chapter 400 to its residents

27  who live in single-family homes, duplexes, quadruplexes, or

28  apartments located on the campus without obtaining a license

29  to operate an assisted living facility if residential units

30  within such buildings are used by residents who do not require

31  staff supervision for that portion of the day when personal

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 1  services are not being delivered and the owner obtains a home

 2  health license to provide such services.  However, any

 3  building or distinct part of a building on the campus that is

 4  designated for persons who receive personal services and

 5  require supervision beyond that which is available while such

 6  services are being rendered must be licensed in accordance

 7  with this part. If a facility provides personal services to

 8  residents who do not otherwise require supervision and the

 9  owner is not licensed as a home health agency, the buildings

10  or distinct parts of buildings where such services are

11  rendered must be licensed under this part. A resident of a

12  facility that obtains a home health license may contract with

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

14  home health agency provides liability insurance and workers'

15  compensation coverage for its employees. Facilities covered by

16  this exemption may establish policies that give residents the

17  option of contracting for services and care beyond that which

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

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

20  consists of a facility licensed under this part or under part

21  II of chapter 400, and apartments designed for independent

22  living located on the same campus.

23         (h)  Any residential unit for independent living which

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

25  any residential unit which is colocated with a nursing home

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

27  facility licensed under this part in which services are

28  provided through an outpatient clinic or a nursing home on an

29  outpatient basis.

30  

31  

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 1         Section 31.  Section 400.407, Florida Statutes, is

 2  renumbered as section 429.07, Florida Statutes, and amended to

 3  read:

 4         429.07 400.407  License required; fee, display.--

 5         (1)  A license issued by the agency is required for an

 6  assisted living facility operating in this state.

 7         (2)  Separate licenses shall be required for facilities

 8  maintained in separate premises, even though operated under

 9  the same management.  A separate license shall not be required

10  for separate buildings on the same grounds.

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

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

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

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

15  information deemed necessary by the agency. Licenses shall be

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

17  standard, extended congregate care, limited nursing services,

18  or limited mental health.

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

20  providing one or more of the personal services identified in

21  s. 429.02 s. 400.402. Such facilities may also employ or

22  contract with a person licensed under part I of chapter 464 to

23  administer medications and perform other tasks as specified in

24  s. 429.255 s. 400.4255.

25         (b)  An extended congregate care license shall be

26  issued to facilities providing, directly or through contract,

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

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

29  licensed thereunder, and supportive services defined by rule

30  to persons who otherwise would be disqualified from continued

31  residence in a facility licensed under this part.

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 1         1.  In order for extended congregate care services to

 2  be provided in a facility licensed under this part, the agency

 3  must first determine that all requirements established in law

 4  and rule are met and must specifically designate, on the

 5  facility's license, that such services may be provided and

 6  whether the designation applies to all or part of a facility.

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

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

 9  this part. Notification of approval or denial of such request

10  shall be made within 90 days after receipt of such request and

11  all necessary documentation. Existing facilities qualifying to

12  provide extended congregate care services must have maintained

13  a standard license and may not have been subject to

14  administrative sanctions during the previous 2 years, or since

15  initial licensure if the facility has been licensed for less

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

17         a.  A class I or class II violation;

18         b.  Three or more repeat or recurring class III

19  violations of identical or similar resident care standards as

20  specified in rule from which a pattern of noncompliance is

21  found by the agency;

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

23  corrected in accordance with the corrective action plan

24  approved by the agency;

25         d.  Violation of resident care standards resulting in a

26  requirement to employ the services of a consultant pharmacist

27  or consultant dietitian;

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

29  another facility under this part in which the applicant for an

30  extended congregate care license has at least 25 percent

31  ownership interest; or

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 1         f.  Imposition of a moratorium on admissions or

 2  initiation of injunctive proceedings.

 3         2.  Facilities that are licensed to provide extended

 4  congregate care services shall maintain a written progress

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

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

 7  services that are rendered and the general status of the

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

 9  designee, representing the agency shall visit such facilities

10  at least quarterly to monitor residents who are receiving

11  extended congregate care services and to determine if the

12  facility is in compliance with this part and with rules that

13  relate to extended congregate care. One of these visits may be

14  in conjunction with the regular survey.  The monitoring visits

15  may be provided through contractual arrangements with

16  appropriate community agencies.  A registered nurse shall

17  serve as part of the team that inspects such facility. The

18  agency may waive one of the required yearly monitoring visits

19  for a facility that has been licensed for at least 24 months

20  to provide extended congregate care services, if, during the

21  inspection, the registered nurse determines that extended

22  congregate care services are being provided appropriately, and

23  if the facility has no class I or class II violations and no

24  uncorrected class III violations. Before such decision is

25  made, the agency shall consult with the long-term care

26  ombudsman council for the area in which the facility is

27  located to determine if any complaints have been made and

28  substantiated about the quality of services or care.  The

29  agency may not waive one of the required yearly monitoring

30  visits if complaints have been made and substantiated.

31  

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 1         3.  Facilities that are licensed to provide extended

 2  congregate care services shall:

 3         a.  Demonstrate the capability to meet unanticipated

 4  resident service needs.

 5         b.  Offer a physical environment that promotes a

 6  homelike setting, provides for resident privacy, promotes

 7  resident independence, and allows sufficient congregate space

 8  as defined by rule.

 9         c.  Have sufficient staff available, taking into

10  account the physical plant and firesafety features of the

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

12  emergency, as necessary.

13         d.  Adopt and follow policies and procedures that

14  maximize resident independence, dignity, choice, and

15  decisionmaking to permit residents to age in place to the

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

17  status are minimized or avoided.

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

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

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

21  developing service plans, and share responsibility in

22  decisionmaking.

23         f.  Implement the concept of managed risk.

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

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

26  464.

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

28  s. 400.452, provide specialized training as defined by rule

29  for facility staff.

30         4.  Facilities licensed to provide extended congregate

31  care services are exempt from the criteria for continued

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

 2  400.441.  Facilities so licensed shall adopt their own

 3  requirements within guidelines for continued residency set

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

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

 6  Facilities licensed to provide extended congregate care

 7  services shall provide each resident with a written copy of

 8  facility policies governing admission and retention.

 9         5.  The primary purpose of extended congregate care

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

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

12  would otherwise be disqualified for continued residency.  A

13  facility licensed to provide extended congregate care services

14  may also admit an individual who exceeds the admission

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

16  individual is determined appropriate for admission to the

17  extended congregate care facility.

18         6.  Before admission of an individual to a facility

19  licensed to provide extended congregate care services, the

20  individual must undergo a medical examination as provided in

21  s. 400.26(4) s. 400.426(4) and the facility must develop a

22  preliminary service plan for the individual.

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

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

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

26  arrangements for relocating the person in accordance with s.

27  429.28(1)(k) s. 400.428(1)(k).

28         8.  Failure to provide extended congregate care

29  services may result in denial of extended congregate care

30  license renewal.

31  

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

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

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

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

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

 6  and recommendations related to, extended congregate care

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

 8  limited to, the following information:

 9         a.  A description of the facilities licensed to provide

10  such services, including total number of beds licensed under

11  this part.

12         b.  The number and characteristics of residents

13  receiving such services.

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

15  provided through a standard license.

16         d.  An analysis of deficiencies cited during licensure

17  inspections.

18         e.  The number of residents who required extended

19  congregate care services at admission and the source of

20  admission.

21         f.  Recommendations for statutory or regulatory

22  changes.

23         g.  The availability of extended congregate care to

24  state clients residing in facilities licensed under this part

25  and in need of additional services, and recommendations for

26  appropriations to subsidize extended congregate care services

27  for such persons.

28         h.  Such other information as the department considers

29  appropriate.

30  

31  

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

 2  to a facility that provides services beyond those authorized

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

 4         1.  In order for limited nursing services to be

 5  provided in a facility licensed under this part, the agency

 6  must first determine that all requirements established in law

 7  and rule are met and must specifically designate, on the

 8  facility's license, that such services may be provided. Such

 9  designation may be made at the time of initial licensure or

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

11  this part. Notification of approval or denial of such request

12  shall be made within 90 days after receipt of such request and

13  all necessary documentation. Existing facilities qualifying to

14  provide limited nursing services shall have maintained a

15  standard license and may not have been subject to

16  administrative sanctions that affect the health, safety, and

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

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

19  years.

20         2.  Facilities that are licensed to provide limited

21  nursing services shall maintain a written progress report on

22  each person who receives such nursing services, which report

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

24  services that are rendered and the general status of the

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

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

27  residents who are receiving limited nursing services and to

28  determine if the facility is in compliance with applicable

29  provisions of this part and with related rules. The monitoring

30  visits may be provided through contractual arrangements with

31  

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 1  appropriate community agencies.  A registered nurse shall also

 2  serve as part of the team that inspects such facility.

 3         3.  A person who receives limited nursing services

 4  under this part must meet the admission criteria established

 5  by the agency for assisted living facilities.  When a resident

 6  no longer meets the admission criteria for a facility licensed

 7  under this part, arrangements for relocating the person shall

 8  be made in accordance with s. 429.28(1)(k) s. 400.428(1)(k),

 9  unless the facility is licensed to provide extended congregate

10  care services.

11         (4)(a)  The biennial license fee required of a facility

12  is $300 per license, with an additional fee of $50 per

13  resident based on the total licensed resident capacity of the

14  facility, except that no additional fee will be assessed for

15  beds designated for recipients of optional state

16  supplementation payments provided for in s. 409.212. The total

17  fee may not exceed $10,000, no part of which shall be returned

18  to the facility.  The agency shall adjust the per bed license

19  fee and the total licensure fee annually by not more than the

20  change in the consumer price index based on the 12 months

21  immediately preceding the increase.

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

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

24  licensed to provide extended congregate care services under

25  this part to pay an additional fee per licensed facility.  The

26  amount of the biennial fee shall be $400 per license, with an

27  additional fee of $10 per resident based on the total licensed

28  resident capacity of the facility. No part of this fee shall

29  be returned to the facility. The agency may adjust the per bed

30  license fee and the annual license fee once each year by not

31  

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 1  more than the average rate of inflation for the 12 months

 2  immediately preceding the increase.

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

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

 5  licensed to provide limited nursing services under this part

 6  to pay an additional fee per licensed facility.  The amount of

 7  the biennial fee shall be $250 per license, with an additional

 8  fee of $10 per resident based on the total licensed resident

 9  capacity of the facility.  No part of this fee shall be

10  returned to the facility.  The agency may adjust the per bed

11  license fee and the biennial license fee once each year by not

12  more than the average rate of inflation for the 12 months

13  immediately preceding the increase.

14         (5)  Counties or municipalities applying for licenses

15  under this part are exempt from the payment of license fees.

16         (6)  The license shall be displayed in a conspicuous

17  place inside the facility.

18         (7)  A license shall be valid only in the possession of

19  the individual, firm, partnership, association, or corporation

20  to which it is issued and shall not be subject to sale,

21  assignment, or other transfer, voluntary or involuntary; nor

22  shall a license be valid for any premises other than that for

23  which originally issued.

24         (8)  A fee may be charged to a facility requesting a

25  duplicate license.  The fee shall not exceed the actual cost

26  of duplication and postage.

27         Section 32.  Section 400.4071, Florida Statutes, is

28  renumbered as section 429.071, Florida Statutes, and amended

29  to read:

30         429.071 400.4071  Intergenerational respite care

31  assisted living facility pilot program.--

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 1         (1)  It is the intent of the Legislature to establish a

 2  pilot program to:

 3         (a)  Facilitate the receipt of in-home, family-based

 4  care by minors and adults with disabilities and elderly

 5  persons with special needs through respite care for up to 14

 6  days.

 7         (b)  Prevent caregiver "burnout," in which the

 8  caregiver's health declines and he or she is unable to

 9  continue to provide care so that the only option for the

10  person with disabilities or special needs is to receive

11  institutional care.

12         (c)  Foster the development of intergenerational

13  respite care assisted living facilities to temporarily care

14  for minors and adults with disabilities and elderly persons

15  with special needs in the same facility and to give caregivers

16  the time they need for rejuvenation and healing.

17         (2)  The Agency for Health Care Administration shall

18  establish a 5-year pilot program, which shall license an

19  intergenerational respite care assisted living facility that

20  will provide temporary personal, respite, and custodial care

21  to minors and adults with disabilities and elderly persons

22  with special needs who do not require 24-hour nursing

23  services. The intergenerational respite care assisted living

24  facility must:

25         (a)  Meet all applicable requirements and standards

26  contained in this part III of this chapter, except that, for

27  purposes of this section, the term "resident" means a person

28  of any age temporarily residing in and receiving care from the

29  facility.

30         (b)  Provide respite care services for minors and

31  adults with disabilities and elderly persons with special

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 1  needs for a period of at least 24 hours but not for more than

 2  14 consecutive days.

 3         (c)  Provide a facility or facilities in which minors

 4  and adults reside in distinct and separate living units.

 5         (d)  Provide a facility that has a maximum of 48 beds,

 6  is located in Miami-Dade County, and is operated by a

 7  not-for-profit entity.

 8         (3)  The agency may establish policies necessary to

 9  achieve the objectives specific to the pilot program and may

10  adopt rules necessary to implement the program.

11         (4)  After 4 years, the agency shall present its report

12  on the effectiveness of the pilot program to the President of

13  the Senate and the Speaker of the House of Representatives and

14  its recommendation as to whether the Legislature should make

15  the program permanent.

16         Section 33.  Section 400.408, Florida Statutes, is

17  renumbered as section 429.08, Florida Statutes, and amended to

18  read:

19         429.08 400.408  Unlicensed facilities; referral of

20  person for residency to unlicensed facility; penalties;

21  verification of licensure status.--

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

23  assisted living facility without obtaining a license under

24  this part.

25         (b)  Except as provided under paragraph (d), any person

26  who owns, operates, or maintains an unlicensed assisted living

27  facility commits a felony of the third degree, punishable as

28  provided in s. 775.082, s. 775.083, or s. 775.084. Each day of

29  continued operation is a separate offense.

30         (c)  Any person found guilty of violating paragraph (a)

31  a second or subsequent time commits a felony of the second

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 1  degree, punishable as provided under s. 775.082, s. 775.083,

 2  or s. 775.084. Each day of continued operation is a separate

 3  offense.

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

 5  unlicensed assisted living facility due to a change in this

 6  part or a modification in department rule within 6 months

 7  after the effective date of such change and who, within 10

 8  working days after receiving notification from the agency,

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

10  part commits a felony of the third degree, punishable as

11  provided in s. 775.082, s. 775.083, or s. 775.084. Each day of

12  continued operation is a separate offense.

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

14  agency notification may be fined for each day of noncompliance

15  pursuant to s. 429.19 s. 400.419.

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

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

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

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

20  on any or all of the licensed facilities until such time as

21  the unlicensed facility is licensed or ceases operation.

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

23  operating or maintaining an assisted living facility without

24  obtaining a license and determines that a condition exists in

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

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

27  the same actions and fines imposed against a licensed facility

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

29         (h)  Any person aware of the operation of an unlicensed

30  assisted living facility must report that facility to the

31  agency. The agency shall provide to the department's elder

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 1  information and referral providers a list, by county, of

 2  licensed assisted living facilities, to assist persons who are

 3  considering an assisted living facility placement in locating

 4  a licensed facility.

 5         (i)  Each field office of the Agency for Health Care

 6  Administration shall establish a local coordinating workgroup

 7  which includes representatives of local law enforcement

 8  agencies, state attorneys, the Medicaid Fraud Control Unit of

 9  the Department of Legal Affairs, local fire authorities, the

10  Department of Children and Family Services, the district

11  long-term care ombudsman council, and the district human

12  rights advocacy committee to assist in identifying the

13  operation of unlicensed facilities and to develop and

14  implement a plan to ensure effective enforcement of state laws

15  relating to such facilities. The workgroup shall report its

16  findings, actions, and recommendations semiannually to the

17  Director of Health Facility Regulation of the agency.

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

19  residency to an unlicensed assisted living facility; to an

20  assisted living facility the license of which is under denial

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

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

23  violates this subsection commits a noncriminal violation,

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

25  775.083.

26         (a)  Any health care practitioner, as defined in s.

27  456.001, who is aware of the operation of an unlicensed

28  facility shall report that facility to the agency. Failure to

29  report a facility that the practitioner knows or has

30  reasonable cause to suspect is unlicensed shall be reported to

31  the practitioner's licensing board.

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 1         (b)  Any hospital or community mental health center

 2  licensed under chapter 395 or chapter 394 which knowingly

 3  discharges a patient or client to an unlicensed facility is

 4  subject to sanction by the agency.

 5         (c)  Any employee of the agency or department, or the

 6  Department of Children and Family Services, who knowingly

 7  refers a person for residency to an unlicensed facility; to a

 8  facility the license of which is under denial or has been

 9  suspended or revoked; or to a facility that has a moratorium

10  on admissions is subject to disciplinary action by the agency

11  or department, or the Department of Children and Family

12  Services.

13         (d)  The employer of any person who is under contract

14  with the agency or department, or the Department of Children

15  and Family Services, and who knowingly refers a person for

16  residency to an unlicensed facility; to a facility the license

17  of which is under denial or has been suspended or revoked; or

18  to a facility that has a moratorium on admissions shall be

19  fined and required to prepare a corrective action plan

20  designed to prevent such referrals.

21         (e)  The agency shall provide the department and the

22  Department of Children and Family Services with a list of

23  licensed facilities within each county and shall update the

24  list at least quarterly.

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

26  appropriate trade publications, physicians licensed under

27  chapter 458 or chapter 459, hospitals licensed under chapter

28  395, nursing home facilities licensed under part II of this

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

30  the Department of Children and Family Services, who are

31  responsible for referring persons for residency, that it is

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 1  unlawful to knowingly refer a person for residency to an

 2  unlicensed assisted living facility and shall notify them of

 3  the penalty for violating such prohibition. The department and

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

 5  notify service providers under contract to the respective

 6  departments who have responsibility for resident referrals to

 7  facilities. Further, the notice must direct each noticed

 8  facility and individual to contact the appropriate agency

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

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

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

12  appropriate office to contact.

13         Section 34.  Section 400.411, Florida Statutes, is

14  renumbered as section 429.11, Florida Statutes, and amended to

15  read:

16         429.11 400.411  Initial application for license;

17  provisional license.--

18         (1)  Application for a license shall be made to the

19  agency on forms furnished by it and shall be accompanied by

20  the appropriate license fee.

21         (2)  The applicant may be an individual owner, a

22  corporation, a partnership, a firm, an association, or a

23  governmental entity.

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

25  under oath and must contain the following:

26         (a)  The name, address, date of birth, and social

27  security number of the applicant and the name by which the

28  facility is to be known. If the applicant is a firm,

29  partnership, or association, the application shall contain the

30  name, address, date of birth, and social security number of

31  every member thereof. If the applicant is a corporation, the

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 1  application shall contain the corporation's name and address;

 2  the name, address, date of birth, and social security number

 3  of each of its directors and officers; and the name and

 4  address of each person having at least a 5-percent ownership

 5  interest in the corporation.

 6         (b)  The name and address of any professional service,

 7  firm, association, partnership, or corporation that is to

 8  provide goods, leases, or services to the facility if a

 9  5-percent or greater ownership interest in the service, firm,

10  association, partnership, or corporation is owned by a person

11  whose name must be listed on the application under paragraph

12  (a).

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

14  facility with which the applicant, administrator, or financial

15  officer has been affiliated through ownership or employment

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

17  signed affidavit disclosing any financial or ownership

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

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

20  licensed under this part, or in any other entity licensed by

21  this state or another state to provide health or residential

22  care, which facility or entity closed or ceased to operate as

23  a result of financial problems, or has had a receiver

24  appointed or a license denied, suspended or revoked, or was

25  subject to a moratorium on admissions, or has had an

26  injunctive proceeding initiated against it.

27         (d)  A description and explanation of any exclusions,

28  permanent suspensions, or terminations of the applicant from

29  the Medicare or Medicaid programs. Proof of compliance with

30  disclosure of ownership and control interest requirements of

31  

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 1  the Medicaid or Medicare programs shall be accepted in lieu of

 2  this submission.

 3         (e)  The names and addresses of persons of whom the

 4  agency may inquire as to the character, reputation, and

 5  financial responsibility of the owner and, if different from

 6  the applicant, the administrator and financial officer.

 7         (f)  Identification of all other homes or facilities,

 8  including the addresses and the license or licenses under

 9  which they operate, if applicable, which are currently

10  operated by the applicant or administrator and which provide

11  housing, meals, and personal services to residents.

12         (g)  The location of the facility for which a license

13  is sought and documentation, signed by the appropriate local

14  government official, which states that the applicant has met

15  local zoning requirements.

16         (h)  The name, address, date of birth, social security

17  number, education, and experience of the administrator, if

18  different from the applicant.

19         (4)  The applicant shall furnish satisfactory proof of

20  financial ability to operate and conduct the facility in

21  accordance with the requirements of this part. A certificate

22  of authority, pursuant to chapter 651, may be provided as

23  proof of financial ability.

24         (5)  If the applicant is a continuing care facility

25  certified under chapter 651, a copy of the facility's

26  certificate of authority must be provided.

27         (6)  The applicant shall provide proof of liability

28  insurance as defined in s. 624.605.

29         (7)  If the applicant is a community residential home,

30  the applicant must provide proof that it has met the

31  requirements specified in chapter 419.

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 1         (8)  The applicant must provide the agency with proof

 2  of legal right to occupy the property.

 3         (9)  The applicant must furnish proof that the facility

 4  has received a satisfactory firesafety inspection.  The local

 5  authority having jurisdiction or the State Fire Marshal must

 6  conduct the inspection within 30 days after written request by

 7  the applicant.

 8         (10)  The applicant must furnish documentation of a

 9  satisfactory sanitation inspection of the facility by the

10  county health department.

11         (11)  The applicant must furnish proof of compliance

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

13  s. 400.4174.

14         (12)  A provisional license may be issued to an

15  applicant making initial application for licensure or making

16  application for a change of ownership.  A provisional license

17  shall be limited in duration to a specific period of time not

18  to exceed 6 months, as determined by the agency.

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

20  occupational license that is being obtained for the purpose of

21  operating a facility regulated under this part without first

22  ascertaining that the applicant has been licensed to operate

23  such facility at the specified location or locations by the

24  agency.  The agency shall furnish to local agencies

25  responsible for issuing occupational licenses sufficient

26  instruction for making such determinations.

27         Section 35.  Section 400.412, Florida Statutes, is

28  renumbered as section 429.12, Florida Statutes, and amended to

29  read:

30         429.12 400.412  Sale or transfer of ownership of a

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

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 1  rights of the residents of an assisted living facility when

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

 3  Therefore, whenever a facility is sold or the ownership

 4  thereof is transferred, including leasing:

 5         (1)  The transferee shall make application to the

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

 7  transfer of ownership.  The application must comply with the

 8  provisions of s. 429.11 s. 400.411.

 9         (2)(a)  The transferor shall notify the agency in

10  writing at least 60 days before the date of transfer of

11  ownership.

12         (b)  The new owner shall notify the residents, in

13  writing, of the transfer of ownership within 7 days of his or

14  her receipt of the license.

15         (3)  The transferor shall be responsible and liable

16  for:

17         (a)  The lawful operation of the facility and the

18  welfare of the residents domiciled in the facility until the

19  date the transferee is licensed by the agency.

20         (b)  Any and all penalties imposed against the facility

21  for violations occurring before the date of transfer of

22  ownership unless the penalty imposed is a moratorium on

23  admissions or denial of licensure.  The moratorium on

24  admissions or denial of licensure remains in effect after the

25  transfer of ownership, unless the agency has approved the

26  transferee's corrective action plan or the conditions which

27  created the moratorium or denial have been corrected, and may

28  be grounds for denial of license to the transferee in

29  accordance with chapter 120.

30         (c)  Any outstanding liability to the state, unless the

31  transferee has agreed, as a condition of sale or transfer, to

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 1  accept the outstanding liabilities and to guarantee payment

 2  therefor; except that, if the transferee fails to meet these

 3  obligations, the transferor shall remain liable for the

 4  outstanding liability.

 5         (4)  The transferor of a facility the license of which

 6  is denied pending an administrative hearing shall, as a part

 7  of the written transfer-of-ownership contract, advise the

 8  transferee that a plan of correction must be submitted by the

 9  transferee and approved by the agency at least 7 days before

10  the transfer of ownership and that failure to correct the

11  condition which resulted in the moratorium on admissions or

12  denial of licensure is grounds for denial of the transferee's

13  license.

14         (5)  The transferee must provide the agency with proof

15  of legal right to occupy the property before a license may be

16  issued.  Proof may include, but is not limited to, copies of

17  warranty deeds, or copies of lease or rental agreements,

18  contracts for deeds, quitclaim deeds, or other such

19  documentation.

20         Section 36.  Section 400.414, Florida Statutes, is

21  renumbered as section 429.14, Florida Statutes, and amended to

22  read:

23         429.14 400.414  Denial, revocation, or suspension of

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

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

26  license issued under this part, or impose an administrative

27  fine in the manner provided in chapter 120, for any of the

28  following actions by an assisted living facility, for the

29  actions of any person subject to level 2 background screening

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

31  facility employee:

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 1         (a)  An intentional or negligent act seriously

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

 3  facility.

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

 5  lacks the financial ability to provide continuing adequate

 6  care to residents.

 7         (c)  Misappropriation or conversion of the property of

 8  a resident of the facility.

 9         (d)  Failure to follow the criteria and procedures

10  provided under part I of chapter 394 relating to the

11  transportation, voluntary admission, and involuntary

12  examination of a facility resident.

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

14  defined in s. 429.19 s. 400.419:

15         1.  One or more cited class I deficiencies.

16         2.  Three or more cited class II deficiencies.

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

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

19  within the times specified.

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

21  background screening under s. 429.174(1) s. 400.4174(1) does

22  not meet the screening standards of s. 435.04 or that the

23  facility is retaining an employee subject to level 1

24  background screening standards under s. 429.174(2) s.

25  400.4174(2) who does not meet the screening standards of s.

26  435.03 and for whom exemptions from disqualification have not

27  been provided by the agency.

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

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

30  the residents of a facility does not meet the criteria

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

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 1  not taken action to remove the person. Exemptions from

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

 3  administrative action may be taken against the facility if the

 4  person is granted an exemption.

 5         (h)  Violation of a moratorium.

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

 7  during relicensure, or a licensee that holds a provisional

 8  license to meet the minimum license requirements of this part,

 9  or related rules, at the time of license application or

10  renewal.

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

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

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

14  application that conceals the fact that any board member,

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

16  may not meet the background screening requirements of s.

17  429.174 s. 400.4174, or that the applicant has been excluded,

18  permanently suspended, or terminated from the Medicaid or

19  Medicare programs.

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

21  in violation of the uniform firesafety standards for assisted

22  living facilities or other firesafety standards that threatens

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

24  communicated to the agency by the local authority having

25  jurisdiction or the State Fire Marshal.

26         (l)  Exclusion, permanent suspension, or termination

27  from the Medicare or Medicaid programs.

28         (m)  Knowingly operating any unlicensed facility or

29  providing without a license any service that must be licensed

30  under this chapter or chapter 400.

31  

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 1         (n)  Any act constituting a ground upon which

 2  application for a license may be denied.

 3  

 4  Administrative proceedings challenging agency action under

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

 6  and conditions that resulted in the agency action.

 7         (2)  Upon notification by the local authority having

 8  jurisdiction or by the State Fire Marshal, the agency may deny

 9  or revoke the license of an assisted living facility that

10  fails to correct cited fire code violations that affect or

11  threaten the health, safety, or welfare of a resident of a

12  facility.

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

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

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

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

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

18  ownership interest in any other facility licensed under this

19  part, or in any entity licensed by this state or another state

20  to provide health or residential care, which facility or

21  entity during the 5 years prior to the application for a

22  license closed due to financial inability to operate; had a

23  receiver appointed or a license denied, suspended, or revoked;

24  was subject to a moratorium on admissions; had an injunctive

25  proceeding initiated against it; or has an outstanding fine

26  assessed under this chapter or chapter 400.

27         (4)  The agency shall deny or revoke the license of an

28  assisted living facility that has two or more class I

29  violations that are similar or identical to violations

30  identified by the agency during a survey, inspection,

31  

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 1  monitoring visit, or complaint investigation occurring within

 2  the previous 2 years.

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

 4  revoke a facility's license under this part, in which the

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

 6  facility has threatened the health, safety, or welfare of a

 7  resident of the facility be heard by the Division of

 8  Administrative Hearings of the Department of Management

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

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

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

12  decision within 30 days after receipt of a proposed

13  recommended order.

14         (6)  The agency shall provide to the Division of Hotels

15  and Restaurants of the Department of Business and Professional

16  Regulation, on a monthly basis, a list of those assisted

17  living facilities that have had their licenses denied,

18  suspended, or revoked or that are involved in an appellate

19  proceeding pursuant to s. 120.60 related to the denial,

20  suspension, or revocation of a license.

21         (7)  Agency notification of a license suspension or

22  revocation, or denial of a license renewal, shall be posted

23  and visible to the public at the facility.

24         (8)  The agency may issue a temporary license pending

25  final disposition of a proceeding involving the suspension or

26  revocation of an assisted living facility license.

27         Section 37.  Section 400.415, Florida Statutes, is

28  renumbered as section 429.15, Florida Statutes, and amended to

29  read:

30         429.15 400.415  Moratorium on admissions; notice.--The

31  agency may impose an immediate moratorium on admissions to any

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 1  assisted living facility if the agency determines that any

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

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

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

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

 6  subject to immediate imposition of a moratorium on admissions

 7  to run concurrently with licensure denial, revocation, or

 8  suspension.

 9         (2)  When a moratorium is placed on a facility, notice

10  of the moratorium shall be posted and visible to the public at

11  the facility until the moratorium is lifted.

12         (3)  The department may by rule establish conditions

13  that constitute grounds for imposing a moratorium on a

14  facility and procedures for imposing and lifting a moratorium,

15  as necessary to administer this section.

16         Section 38.  Section 400.417, Florida Statutes, is

17  renumbered as section 429.17, Florida Statutes, and amended to

18  read:

19         429.17 400.417  Expiration of license; renewal;

20  conditional license.--

21         (1)  Biennial licenses, unless sooner suspended or

22  revoked, shall expire 2 years from the date of issuance.

23  Limited nursing, extended congregate care, and limited mental

24  health licenses shall expire at the same time as the

25  facility's standard license, regardless of when issued. The

26  agency shall notify the facility at least 120 days prior to

27  expiration that a renewal license is necessary to continue

28  operation. The notification must be provided electronically or

29  by mail delivery. Ninety days prior to the expiration date, an

30  application for renewal shall be submitted to the agency. Fees

31  must be prorated. The failure to file a timely renewal

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 1  application shall result in a late fee charged to the facility

 2  in an amount equal to 50 percent of the current fee.

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

 4  timely filing of an application on forms furnished by the

 5  agency and the provision of satisfactory proof of ability to

 6  operate and conduct the facility in accordance with the

 7  requirements of this part and adopted rules, including proof

 8  that the facility has received a satisfactory firesafety

 9  inspection, conducted by the local authority having

10  jurisdiction or the State Fire Marshal, within the preceding

11  12 months and an affidavit of compliance with the background

12  screening requirements of s. 429.174 s. 400.4174.

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

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

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

16  required to provide further proof unless the facility or any

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

18  same person has demonstrated financial instability as provided

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

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

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

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

23  must report to the agency any adverse court action concerning

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

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

26  and any other financial documents maintained by the facility

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

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

29  not be renewed if the licensee has any outstanding fines

30  assessed pursuant to this part which are in final order

31  status.

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 1         (4)  A licensee against whom a revocation or suspension

 2  proceeding is pending at the time of license renewal may be

 3  issued a conditional license effective until final disposition

 4  by the agency.  If judicial relief is sought from the final

 5  disposition, the court having jurisdiction may issue a

 6  conditional license for the duration of the judicial

 7  proceeding.

 8         (5)  A conditional license may be issued to an

 9  applicant for license renewal if the applicant fails to meet

10  all standards and requirements for licensure.  A conditional

11  license issued under this subsection shall be limited in

12  duration to a specific period of time not to exceed 6 months,

13  as determined by the agency, and shall be accompanied by an

14  agency-approved plan of correction.

15         (6)  When an extended care or limited nursing license

16  is requested during a facility's biennial license period, the

17  fee shall be prorated in order to permit the additional

18  license to expire at the end of the biennial license period.

19  The fee shall be calculated as of the date the additional

20  license application is received by the agency.

21         (7)  The department may by rule establish renewal

22  procedures, identify forms, and specify documentation

23  necessary to administer this section.

24         Section 39.  Section 400.4174, Florida Statutes, is

25  renumbered as section 429.174, Florida Statutes, and amended

26  to read:

27         429.174 400.4174  Background screening; exemptions.--

28         (1)(a)  Level 2 background screening must be conducted

29  on each of the following persons, who shall be considered

30  employees for the purposes of conducting screening under

31  chapter 435:

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 1         1.  The facility owner if an individual, the

 2  administrator, and the financial officer.

 3         2.  An officer or board member if the facility owner is

 4  a firm, corporation, partnership, or association, or any

 5  person owning 5 percent or more of the facility if the agency

 6  has probable cause to believe that such person has been

 7  convicted of any offense prohibited by s. 435.04. For each

 8  officer, board member, or person owning 5 percent or more who

 9  has been convicted of any such offense, the facility shall

10  submit to the agency a description and explanation of the

11  conviction at the time of license application. This

12  subparagraph does not apply to a board member of a

13  not-for-profit corporation or organization if the board member

14  serves solely in a voluntary capacity, does not regularly take

15  part in the day-to-day operational decisions of the

16  corporation or organization, receives no remuneration for his

17  or her services, and has no financial interest and has no

18  family members with a financial interest in the corporation or

19  organization, provided that the board member and facility

20  submit a statement affirming that the board member's

21  relationship to the facility satisfies the requirements of

22  this subparagraph.

23         (b)  Proof of compliance with level 2 screening

24  standards which has been submitted within the previous 5 years

25  to meet any facility or professional licensure requirements of

26  the agency or the Department of Health satisfies the

27  requirements of this subsection, provided that such proof is

28  accompanied, under penalty of perjury, by an affidavit of

29  compliance with the provisions of chapter 435. Proof of

30  compliance with the background screening requirements of the

31  Financial Services Commission and the Office of Insurance

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 1  Regulation for applicants for a certificate of authority to

 2  operate a continuing care retirement community under chapter

 3  651, submitted within the last 5 years, satisfies the

 4  Department of Law Enforcement and Federal Bureau of

 5  Investigation portions of a level 2 background check.

 6         (c)  The agency may grant a provisional license to a

 7  facility applying for an initial license when each individual

 8  required by this subsection to undergo screening has completed

 9  the Department of Law Enforcement background checks, but has

10  not yet received results from the Federal Bureau of

11  Investigation, or when a request for an exemption from

12  disqualification has been submitted to the agency pursuant to

13  s. 435.07, but a response has not been issued.

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

15  facility must conduct level 1 background screening, as set

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

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

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

19  individual from employment disqualification as set forth in

20  chapter 435. Such persons shall be considered as having met

21  this requirement if:

22         (a)  Proof of compliance with level 1 screening

23  requirements obtained to meet any professional license

24  requirements in this state is provided and accompanied, under

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

26  professional license and an affidavit of current compliance

27  with the background screening requirements.

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

29  continuously employed in the same type of occupation for which

30  the person is seeking employment without a breach in service

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

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

 2  provided. Proof of compliance shall be provided directly from

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

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

 5  provided by the employer retaining documentation of the

 6  screening to the person screened.

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

 8  a corporation or business entity or related corporation or

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

10  facility or agency licensed under this chapter, and for whom a

11  level 1 screening was conducted by the corporation or business

12  entity as a condition of initial or continued employment.

13         Section 40.  Section 400.4176, Florida Statutes, is

14  renumbered as section 429.176, Florida Statutes, and amended

15  to read:

16         429.176 400.4176  Notice of change of

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

18  issued, the owner changes administrators, the owner must

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

20  documentation within 90 days that the new administrator has

21  completed the applicable core educational requirements under

22  s. 429.52 s. 400.452. Background screening shall be completed

23  on any new administrator as specified in s. 429.174 s.

24  400.4174.

25         Section 41.  Section 400.4178, Florida Statutes, is

26  renumbered as section 429.178, Florida Statutes, and amended

27  to read:

28         429.178 400.4178  Special care for persons with

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

30         (1)  A facility which advertises that it provides

31  special care for persons with Alzheimer's disease or other

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 1  related disorders must meet the following standards of

 2  operation:

 3         (a)1.  If the facility has 17 or more residents, have

 4  an awake staff member on duty at all hours of the day and

 5  night; or

 6         2.  If the facility has fewer than 17 residents, have

 7  an awake staff member on duty at all hours of the day and

 8  night or have mechanisms in place to monitor and ensure the

 9  safety of the facility's residents.

10         (b)  Offer activities specifically designed for persons

11  who are cognitively impaired.

12         (c)  Have a physical environment that provides for the

13  safety and welfare of the facility's residents.

14         (d)  Employ staff who have completed the training and

15  continuing education required in subsection (2).

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

17  that provides special care for residents with Alzheimer's

18  disease or other related disorders, and who has regular

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

20  initial dementia-specific training developed or approved by

21  the department. The training shall be completed within 3

22  months after beginning employment and shall satisfy the core

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

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

25  that provides special care for residents with Alzheimer's

26  disease or other related disorders, and who provides direct

27  care to such residents, must complete the required initial

28  training and 4 additional hours of training developed or

29  approved by the department.  The training shall be completed

30  within 9 months after beginning employment and shall satisfy

31  

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

 2  400.452(2)(g).

 3         (c)  An individual who is employed by a facility that

 4  provides special care for residents with Alzheimer's disease

 5  or other related disorders, but who only has incidental

 6  contact with such residents, must be given, at a minimum,

 7  general information on interacting with individuals with

 8  Alzheimer's disease or other related disorders, within 3

 9  months after beginning employment.

10         (3)  In addition to the training required under

11  subsection (2), a direct caregiver must participate in a

12  minimum of 4 contact hours of continuing education each

13  calendar year.  The continuing education must include one or

14  more topics included in the dementia-specific training

15  developed or approved by the department, in which the

16  caregiver has not received previous training.

17         (4)  Upon completing any training listed in subsection

18  (2), the employee or direct caregiver shall be issued a

19  certificate that includes the name of the training provider,

20  the topic covered, and the date and signature of the training

21  provider.  The certificate is evidence of completion of

22  training in the identified topic, and the employee or direct

23  caregiver is not required to repeat training in that topic if

24  the employee or direct caregiver changes employment to a

25  different facility.  The employee or direct caregiver must

26  comply with other applicable continuing education

27  requirements.

28         (5)  The department, or its designee, shall approve the

29  initial and continuing education courses and providers.

30         (6)  The department shall keep a current list of

31  providers who are approved to provide initial and continuing

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 1  education for staff of facilities that provide special care

 2  for persons with Alzheimer's disease or other related

 3  disorders.

 4         (7)  Any facility more than 90 percent of whose

 5  residents receive monthly optional supplementation payments is

 6  not required to pay for the training and education programs

 7  required under this section.  A facility that has one or more

 8  such residents shall pay a reduced fee that is proportional to

 9  the percentage of such residents in the facility.  A facility

10  that does not have any residents who receive monthly optional

11  supplementation payments must pay a reasonable fee, as

12  established by the department, for such training and education

13  programs.

14         (8)  The department shall adopt rules to establish

15  standards for trainers and training and to implement this

16  section.

17         Section 42.  Section 400.418, Florida Statutes, is

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

19  read:

20         429.18 400.418  Disposition of fees and administrative

21  fines.--

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

23  fees, and administrative fines generated pursuant to ss.

24  429.07, 429.08, 429.17, 429.19, and 429.31 ss. 400.407,

25  400.408, 400.417, 400.419, and 400.431 shall be deposited in

26  the Health Care Trust Fund administered by the agency.  Such

27  funds shall be directed to and used by the agency for the

28  following purposes:

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

30  fiscal year under this part may be used to offset the expenses

31  of receivership, pursuant to s. 429.22 s. 400.422, if the

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 1  court determines that the income and assets of the facility

 2  are insufficient to provide for adequate management and

 3  operation.

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

 5  each year under this part shall be allocated to pay for

 6  inspection-related physical and mental health examinations

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

 8  residents who are either recipients of supplemental security

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

10  combined federal and state cash subsidies available to

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

12  409.212.  Such funds shall only be used where the resident is

13  ineligible for Medicaid.

14         (c)  Any trust funds accrued each year under this part

15  and not used for the purposes specified in paragraphs (a) and

16  (b) shall be used to offset the costs of the licensure

17  program, including the costs of conducting background

18  investigations, verifying information submitted, defraying the

19  costs of processing the names of applicants, and conducting

20  inspections and monitoring visits pursuant to this part.

21         (2)  Income from fees generated pursuant to s.

22  429.41(5) s. 400.441(5) shall be deposited in the Health Care

23  Trust Fund and used to offset the costs of printing and

24  postage.

25         Section 43.  Section 400.419, Florida Statutes, is

26  renumbered as section 429.19, Florida Statutes, and amended to

27  read:

28         429.19 400.419  Violations; imposition of

29  administrative fines; grounds.--

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

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

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 1  violations as set forth within this section by an assisted

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

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

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

 5  negligent act seriously affecting the health, safety, or

 6  welfare of a resident of the facility.

 7         (2)  Each violation of this part and adopted rules

 8  shall be classified according to the nature of the violation

 9  and the gravity of its probable effect on facility residents.

10  The agency shall indicate the classification on the written

11  notice of the violation as follows:

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

13  occurrences related to the operation and maintenance of a

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

15  determines present an imminent danger to the residents or

16  guests of the facility or a substantial probability that death

17  or serious physical or emotional harm would result therefrom.

18  The condition or practice constituting a class I violation

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

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

21  correction. The agency shall impose an administrative fine for

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

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

24  levied notwithstanding the correction of the violation.

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

26  occurrences related to the operation and maintenance of a

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

28  determines directly threaten the physical or emotional health,

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

30  class I violations. The agency shall impose an administrative

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

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

 2  shall be levied notwithstanding the correction of the

 3  violation.

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

 5  occurrences related to the operation and maintenance of a

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

 7  determines indirectly or potentially threaten the physical or

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

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

10  impose an administrative fine for a cited class III violation

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

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

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

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

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

16  repeated offense.

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

18  occurrences related to the operation and maintenance of a

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

20  not have the potential of negatively affecting residents.

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

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

23  the facility. The agency shall impose an administrative fine

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

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

26  class IV violation must specify the time within which the

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

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

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

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

31  an agency finding and not as a violation.

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 1         (3)  In determining if a penalty is to be imposed and

 2  in fixing the amount of the fine, the agency shall consider

 3  the following factors:

 4         (a)  The gravity of the violation, including the

 5  probability that death or serious physical or emotional harm

 6  to a resident will result or has resulted, the severity of the

 7  action or potential harm, and the extent to which the

 8  provisions of the applicable laws or rules were violated.

 9         (b)  Actions taken by the owner or administrator to

10  correct violations.

11         (c)  Any previous violations.

12         (d)  The financial benefit to the facility of

13  committing or continuing the violation.

14         (e)  The licensed capacity of the facility.

15         (4)  Each day of continuing violation after the date

16  fixed for termination of the violation, as ordered by the

17  agency, constitutes an additional, separate, and distinct

18  violation.

19         (5)  Any action taken to correct a violation shall be

20  documented in writing by the owner or administrator of the

21  facility and verified through followup visits by agency

22  personnel. The agency may impose a fine and, in the case of an

23  owner-operated facility, revoke or deny a facility's license

24  when a facility administrator fraudulently misrepresents

25  action taken to correct a violation.

26         (6)  For fines that are upheld following administrative

27  or judicial review, the violator shall pay the fine, plus

28  interest at the rate as specified in s. 55.03, for each day

29  beyond the date set by the agency for payment of the fine.

30         (7)  Any unlicensed facility that continues to operate

31  after agency notification is subject to a $1,000 fine per day.

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 1         (8)  Any licensed facility whose owner or administrator

 2  concurrently operates an unlicensed facility shall be subject

 3  to an administrative fine of $5,000 per day.

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

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

 6  400.412 and operates the facility under the new ownership is

 7  subject to a fine of $5,000.

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

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

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

11  to cover the cost of conducting initial complaint

12  investigations that result in the finding of a violation that

13  was the subject of the complaint or monitoring visits

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

15  correction of the violations.

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

17  conjunction with an administrative action against a facility

18  for violations of this part and adopted rules, shall make a

19  reasonable attempt to discuss each violation and recommended

20  corrective action with the owner or administrator of the

21  facility, prior to written notification. The agency, instead

22  of fixing a period within which the facility shall enter into

23  compliance with standards, may request a plan of corrective

24  action from the facility which demonstrates a good faith

25  effort to remedy each violation by a specific date, subject to

26  the approval of the agency.

27         (12)  Administrative fines paid by any facility under

28  this section shall be deposited into the Health Care Trust

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

30         (13)  The agency shall develop and disseminate an

31  annual list of all facilities sanctioned or fined $5,000 or

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 1  more for violations of state standards, the number and class

 2  of violations involved, the penalties imposed, and the current

 3  status of cases. The list shall be disseminated, at no charge,

 4  to the Department of Elderly Affairs, the Department of

 5  Health, the Department of Children and Family Services, the

 6  area agencies on aging, the Florida Statewide Advocacy

 7  Council, and the state and local ombudsman councils. The

 8  Department of Children and Family Services shall disseminate

 9  the list to service providers under contract to the department

10  who are responsible for referring persons to a facility for

11  residency. The agency may charge a fee commensurate with the

12  cost of printing and postage to other interested parties

13  requesting a copy of this list.

14         Section 44.  Section 400.42, Florida Statutes, is

15  renumbered as section 429.20, Florida Statutes, and amended to

16  read:

17         429.20 400.42  Certain solicitation prohibited;

18  third-party supplementation.--

19         (1)  A person may not, in connection with the

20  solicitation of contributions by or on behalf of an assisted

21  living facility or facilities, misrepresent or mislead any

22  person, by any manner, means, practice, or device whatsoever,

23  to believe that the receipts of such solicitation will be used

24  for charitable purposes, if that is not the fact.

25         (2)  Solicitation of contributions of any kind in a

26  threatening, coercive, or unduly forceful manner by or on

27  behalf of an assisted living facility or facilities by any

28  agent, employee, owner, or representative of any assisted

29  living facility or facilities is grounds for denial,

30  suspension, or revocation of the license of the assisted

31  

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 1  living facility or facilities by or on behalf of which such

 2  contributions were solicited.

 3         (3)  The admission or maintenance of assisted living

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

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

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

 7  solicitation or receipt of contributions in violation of this

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

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

10  living facility by or on behalf of which such contributions

11  were solicited.

12         (4)  An assisted living facility may accept additional

13  supplementation from third parties on behalf of residents

14  receiving optional state supplementation in accordance with s.

15  409.212.

16         Section 45.  Section 400.422, Florida Statutes, is

17  renumbered as section 429.22, Florida Statutes, and amended to

18  read:

19         429.22 400.422  Receivership proceedings.--

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

21  injunctive proceeding, the agency may petition a court of

22  competent jurisdiction for the appointment of a receiver, if

23  suitable alternate placements are not available, when any of

24  the following conditions exist:

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

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

27  429.07 and 429.08 ss. 400.407 and 400.408.

28         (b)  The facility is closing or has informed the agency

29  that it intends to close and adequate arrangements have not

30  been made for relocation of the residents within 7 days,

31  

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 1  exclusive of weekends and holidays, of the closing of the

 2  facility.

 3         (c)  The agency determines there exist in the facility

 4  conditions which present an imminent danger to the health,

 5  safety, or welfare of the residents of the facility or a

 6  substantial probability that death or serious physical harm

 7  would result therefrom.

 8         (d)  The facility cannot meet its financial obligation

 9  for providing food, shelter, care, and utilities.

10         (2)  Petitions for receivership shall take precedence

11  over other court business unless the court determines that

12  some other pending proceeding, having similar statutory

13  precedence, shall have priority.  A hearing shall be conducted

14  within 5 days of the filing of the petition, at which time all

15  interested parties shall have the opportunity to present

16  evidence pertaining to the petition.  The agency shall notify,

17  by certified mail, the owner or administrator of the facility

18  named in the petition and the facility resident or, if

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

20  resident's surrogate, guardian, or attorney in fact, of its

21  filing, the substance of the violation, and the date and place

22  set for the hearing.  The court shall grant the petition only

23  upon finding that the health, safety, or welfare of facility

24  residents would be threatened if a condition existing at the

25  time the petition was filed is permitted to continue.  A

26  receiver shall not be appointed ex parte unless the court

27  determines that one or more of the conditions in subsection

28  (1) exist; that the facility owner or administrator cannot be

29  found; that all reasonable means of locating the owner or

30  administrator and notifying him or her of the petition and

31  hearing have been exhausted; or that the owner or

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 1  administrator after notification of the hearing chooses not to

 2  attend.  After such findings, the court may appoint any

 3  qualified person as a receiver, except it may not appoint any

 4  owner or affiliate of the facility which is in receivership.

 5  The receiver may be selected from a list of persons qualified

 6  to act as receivers developed by the agency and presented to

 7  the court with each petition for receivership.  Under no

 8  circumstances may the agency or designated agency employee be

 9  appointed as a receiver for more than 60 days; however, the

10  receiver may petition the court, one time only, for a 30-day

11  extension.  The court shall grant the extension upon a showing

12  of good cause.

13         (3)  The receiver must make provisions for the

14  continued health, safety, and welfare of all residents of the

15  facility and:

16         (a)  Shall exercise those powers and perform those

17  duties set out by the court.

18         (b)  Shall operate the facility in such a manner as to

19  assure safety and adequate health care for the residents.

20         (c)  Shall take such action as is reasonably necessary

21  to protect or conserve the assets or property of the facility

22  for which the receiver is appointed, or the proceeds from any

23  transfer thereof, and may use them only in the performance of

24  the powers and duties set forth in this section and by order

25  of the court.

26         (d)  May use the building, fixtures, furnishings, and

27  any accompanying consumable goods in the provision of care and

28  services to residents and to any other persons receiving

29  services from the facility at the time the petition for

30  receivership was filed.  The receiver shall collect payments

31  for all goods and services provided to residents or others

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 1  during the period of the receivership at the same rate of

 2  payment charged by the owners at the time the petition for

 3  receivership was filed, or at a fair and reasonable rate

 4  otherwise approved by the court.

 5         (e)  May correct or eliminate any deficiency in the

 6  structure or furnishings of the facility which endangers the

 7  safety or health of residents while they remain in the

 8  facility, if the total cost of correction does not exceed

 9  $10,000.  The court may order expenditures for this purpose in

10  excess of $10,000 on application from the receiver after

11  notice to the owner and a hearing.

12         (f)  May let contracts and hire agents and employees to

13  carry out the powers and duties of the receiver.

14         (g)  Shall honor all leases, mortgages, and secured

15  transactions governing the building in which the facility is

16  located and all goods and fixtures in the building of which

17  the receiver has taken possession, but only to the extent of

18  payments which, in the case of a rental agreement, are for the

19  use of the property during the period of the receivership, or

20  which, in the case of a purchase agreement, become due during

21  the period of the receivership.

22         (h)  Shall have full power to direct and manage and to

23  discharge employees of the facility, subject to any contract

24  rights they may have.  The receiver shall pay employees at the

25  rate of compensation, including benefits, approved by the

26  court.  A receivership does not relieve the owner of any

27  obligation to employees made prior to the appointment of a

28  receiver and not carried out by the receiver.

29         (i)  Shall be entitled to and take possession of all

30  property or assets of residents which are in the possession of

31  a facility or its owner. The receiver shall preserve all

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 1  property, assets, and records of residents of which the

 2  receiver takes possession and shall provide for the prompt

 3  transfer of the property, assets, and records to the new

 4  placement of any transferred resident.  An inventory list

 5  certified by the owner and receiver shall be made immediately

 6  at the time the receiver takes possession of the facility.

 7         (4)(a)  A person who is served with notice of an order

 8  of the court appointing a receiver and of the receiver's name

 9  and address shall be liable to pay the receiver for any goods

10  or services provided by the receiver after the date of the

11  order if the person would have been liable for the goods or

12  services as supplied by the owner.  The receiver shall give a

13  receipt for each payment and shall keep a copy of each receipt

14  on file.  The receiver shall deposit accounts received in a

15  separate account and shall use this account for all

16  disbursements.

17         (b)  The receiver may bring an action to enforce the

18  liability created by paragraph (a).

19         (c)  A payment to the receiver of any sum owing to the

20  facility or its owner shall discharge any obligation to the

21  facility to the extent of the payment.

22         (5)(a)  A receiver may petition the court that he or

23  she not be required to honor any lease, mortgage, secured

24  transaction, or other wholly or partially executory contract

25  entered into by the owner of the facility if the rent, price,

26  or rate of interest required to be paid under the agreement

27  was substantially in excess of a reasonable rent, price, or

28  rate of interest at the time the contract was entered into, or

29  if any material provision of the agreement was unreasonable,

30  when compared to contracts negotiated under similar

31  conditions.  Any relief in this form provided by the court

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 1  shall be limited to the life of the receivership, unless

 2  otherwise determined by the court.

 3         (b)  If the receiver is in possession of real estate or

 4  goods subject to a lease, mortgage, or security interest which

 5  the receiver has obtained a court order to avoid under

 6  paragraph (a), and if the real estate or goods are necessary

 7  for the continued operation of the facility under this

 8  section, the receiver may apply to the court to set a

 9  reasonable rental, price, or rate of interest to be paid by

10  the receiver during the duration of the receivership. The

11  court shall hold a hearing on the application within 15 days.

12  The receiver shall send notice of the application to any known

13  persons who own the property involved at least 10 days prior

14  to the hearing. Payment by the receiver of the amount

15  determined by the court to be reasonable is a defense to any

16  action against the receiver for payment or for possession of

17  the goods or real estate subject to the lease, security

18  interest, or mortgage involved by any person who received such

19  notice, but the payment does not relieve the owner of the

20  facility of any liability for the difference between the

21  amount paid by the receiver and the amount due under the

22  original lease, security interest, or mortgage involved.

23         (6)  The court shall set the compensation of the

24  receiver, which will be considered a necessary expense of a

25  receivership.

26         (7)  A receiver may be held liable in a personal

27  capacity only for the receiver's own gross negligence,

28  intentional acts, or breach of fiduciary duty.

29         (8)  The court may require a receiver to post a bond.

30  

31  

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

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

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

 4         (10)  The court may terminate a receivership when:

 5         (a)  The court determines that the receivership is no

 6  longer necessary because the conditions which gave rise to the

 7  receivership no longer exist or the agency grants the facility

 8  a new license; or

 9         (b)  All of the residents in the facility have been

10  transferred or discharged.

11         (11)  Within 30 days after termination, the receiver

12  shall give the court a complete accounting of all property of

13  which the receiver has taken possession, of all funds

14  collected, and of the expenses of the receivership.

15         (12)  Nothing in this section shall be deemed to

16  relieve any owner, administrator, or employee of a facility

17  placed in receivership of any civil or criminal liability

18  incurred, or any duty imposed by law, by reason of acts or

19  omissions of the owner, administrator, or employee prior to

20  the appointment of a receiver; nor shall anything contained in

21  this section be construed to suspend during the receivership

22  any obligation of the owner, administrator, or employee for

23  payment of taxes or other operating and maintenance expenses

24  of the facility or of the owner, administrator, employee, or

25  any other person for the payment of mortgages or liens.  The

26  owner shall retain the right to sell or mortgage any facility

27  under receivership, subject to approval of the court which

28  ordered the receivership.

29         Section 46.  Section 400.424, Florida Statutes, is

30  renumbered as section 429.24, Florida Statutes, and amended to

31  read:

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 1         429.24 400.424  Contracts.--

 2         (1)  The presence of each resident in a facility shall

 3  be covered by a contract, executed at the time of admission or

 4  prior thereto, between the licensee and the resident or his or

 5  her designee or legal representative. Each party to the

 6  contract shall be provided with a duplicate original thereof,

 7  and the licensee shall keep on file in the facility all such

 8  contracts.  The licensee may not destroy or otherwise dispose

 9  of any such contract until 5 years after its expiration.

10         (2)  Each contract must contain express provisions

11  specifically setting forth the services and accommodations to

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

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

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

15  those specified in s. 429.28 s. 400.428; and other matters

16  that the parties deem appropriate. Whenever money is deposited

17  or advanced by a resident in a contract as security for

18  performance of the contract agreement or as advance rent for

19  other than the next immediate rental period:

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

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

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

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

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

25  financial statements; and shall be used, or otherwise

26  expended, only for the account of the resident.

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

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

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

30  holding the advance rent or security deposit and state the

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

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

 2  policy on advance deposits.

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

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

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

 6  resident or responsible party is entitled to a prorated refund

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

 8  beyond the termination date after all charges, including the

 9  cost of damages to the residential unit resulting from

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

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

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

13  cleared of all personal belongings.  If the amount of

14  belongings does not preclude renting the unit, the facility

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

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

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

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

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

20  are not claimed within 45 days after notification, the

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

22  any other conditions under which claims will be made against

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

24  discharge due to medical reasons, the refunds shall be

25  computed in accordance with the notice of relocation

26  requirements specified in the contract.  However, a resident

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

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

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

30  refund due the resident, the facility shall notify the

31  resident or responsible party in writing of the claim and

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

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

 3  provide a refund to the resident or responsible party within

 4  45 days after the transfer, discharge, or death of the

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

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

 7  which fine shall be equal to three times the amount due to the

 8  resident. One-half of the fine shall be remitted to the

 9  resident or his or her estate, and the other half to the

10  Health Care Trust Fund to be used for the purpose specified in

11  s. 429.18 s. 400.418.

12         (b)  If a licensee agrees to reserve a bed for a

13  resident who is admitted to a medical facility, including, but

14  not limited to, a nursing home, health care facility, or

15  psychiatric facility, the resident or his or her responsible

16  party shall notify the licensee of any change in status that

17  would prevent the resident from returning to the facility.

18  Until such notice is received, the agreed-upon daily rate may

19  be charged by the licensee.

20         (c)  The purpose of any advance payment and a refund

21  policy for such payment, including any advance payment for

22  housing, meals, or personal services, shall be covered in the

23  contract.

24         (4)  The contract shall state whether or not the

25  facility is affiliated with any religious organization and, if

26  so, which organization and its general responsibility to the

27  facility.

28         (5)  Neither the contract nor any provision thereof

29  relieves any licensee of any requirement or obligation imposed

30  upon it by this part or rules adopted under this part.

31  

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 1         (6)  In lieu of the provisions of this section,

 2  facilities certified under chapter 651 shall comply with the

 3  requirements of s. 651.055.

 4         (7)  Notwithstanding the provisions of this section,

 5  facilities which consist of 60 or more apartments may require

 6  refund policies and termination notices in accordance with the

 7  provisions of part II of chapter 83, provided that the lease

 8  is terminated automatically without financial penalty in the

 9  event of a resident's death or relocation due to psychiatric

10  hospitalization or to medical reasons which necessitate

11  services or care beyond which the facility is licensed to

12  provide.  The date of termination in such instances shall be

13  the date the unit is fully vacated.  A lease may be

14  substituted for the contract if it meets the disclosure

15  requirements of this section.  For the purpose of this

16  section, the term "apartment" means a room or set of rooms

17  with a kitchen or kitchenette and lavatory located within one

18  or more buildings containing other similar or like residential

19  units.

20         (8)  The department may by rule clarify terms,

21  establish procedures, clarify refund policies and contract

22  provisions, and specify documentation as necessary to

23  administer this section.

24         Section 47.  Section 400.4255, Florida Statutes, is

25  renumbered as section 429.255, Florida Statutes, and are

26  amended to read:

27         429.255 400.4255  Use of personnel; emergency care.--

28         (1)(a)  Persons under contract to the facility,

29  facility staff, or volunteers, who are licensed according to

30  part I of chapter 464, or those persons exempt under s.

31  464.022(1), and others as defined by rule, may administer

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 1  medications to residents, take residents' vital signs, manage

 2  individual weekly pill organizers for residents who

 3  self-administer medication, give prepackaged enemas ordered by

 4  a physician, observe residents, document observations on the

 5  appropriate resident's record, report observations to the

 6  resident's physician, and contract or allow residents or a

 7  resident's representative, designee, surrogate, guardian, or

 8  attorney in fact to contract with a third party, provided

 9  residents meet the criteria for appropriate placement as

10  defined in s. 429.26 s. 400.426.  Nursing assistants certified

11  pursuant to part II of chapter 464 may take residents' vital

12  signs as directed by a licensed nurse or physician.

13         (b)  All staff in facilities licensed under this part

14  shall exercise their professional responsibility to observe

15  residents, to document observations on the appropriate

16  resident's record, and to report the observations to the

17  resident's physician.  However, the owner or administrator of

18  the facility shall be responsible for determining that the

19  resident receiving services is appropriate for residence in

20  the facility.

21         (c)  In an emergency situation, licensed personnel may

22  carry out their professional duties pursuant to part I of

23  chapter 464 until emergency medical personnel assume

24  responsibility for care.

25         (2)  In facilities licensed to provide extended

26  congregate care, persons under contract to the facility,

27  facility staff, or volunteers, who are licensed according to

28  part I of chapter 464, or those persons exempt under s.

29  464.022(1), or those persons certified as nursing assistants

30  pursuant to part II of chapter 464, may also perform all

31  duties within the scope of their license or certification, as

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 1  approved by the facility administrator and pursuant to this

 2  part.

 3         (3)  Facility staff may withhold or withdraw

 4  cardiopulmonary resuscitation if presented with an order not

 5  to resuscitate executed pursuant to s. 401.45. The department

 6  shall adopt rules providing for the implementation of such

 7  orders. Facility staff and facilities shall not be subject to

 8  criminal prosecution or civil liability, nor be considered to

 9  have engaged in negligent or unprofessional conduct, for

10  withholding or withdrawing cardiopulmonary resuscitation

11  pursuant to such an order and rules adopted by the department.

12  The absence of an order to resuscitate executed pursuant to s.

13  401.45 does not preclude a physician from withholding or

14  withdrawing cardiopulmonary resuscitation as otherwise

15  permitted by law.

16         Section 48.  Section 400.4256, Florida Statutes, is

17  renumbered as section 429.256, Florida Statutes, and is

18  amended to read:

19         429.256 400.4256  Assistance with self-administration

20  of medication.--

21         (1)  For the purposes of this section, the term:

22         (a)  "Informed consent" means advising the resident, or

23  the resident's surrogate, guardian, or attorney in fact, that

24  an assisted living facility is not required to have a licensed

25  nurse on staff, that the resident may be receiving assistance

26  with self-administration of medication from an unlicensed

27  person, and that such assistance, if provided by an unlicensed

28  person, will or will not be overseen by a licensed nurse.

29         (b)  "Unlicensed person" means an individual not

30  currently licensed to practice nursing or medicine who is

31  employed by or under contract to an assisted living facility

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 1  and who has received training with respect to assisting with

 2  the self-administration of medication in an assisted living

 3  facility as provided under s. 429.52 s. 400.452 prior to

 4  providing such assistance as described in this section.

 5         (2)  Residents who are capable of self-administering

 6  their own medications without assistance shall be encouraged

 7  and allowed to do so. However, an unlicensed person may,

 8  consistent with a dispensed prescription's label or the

 9  package directions of an over-the-counter medication, assist a

10  resident whose condition is medically stable with the

11  self-administration of routine, regularly scheduled

12  medications that are intended to be self-administered.

13  Assistance with self-medication by an unlicensed person may

14  occur only upon a documented request by, and the written

15  informed consent of, a resident or the resident's surrogate,

16  guardian, or attorney in fact. For the purposes of this

17  section, self-administered medications include both legend and

18  over-the-counter oral dosage forms, topical dosage forms and

19  topical ophthalmic, otic, and nasal dosage forms including

20  solutions, suspensions, sprays, and inhalers.

21         (3)  Assistance with self-administration of medication

22  includes:

23         (a)  Taking the medication, in its previously

24  dispensed, properly labeled container, from where it is

25  stored, and bringing it to the resident.

26         (b)  In the presence of the resident, reading the

27  label, opening the container, removing a prescribed amount of

28  medication from the container, and closing the container.

29         (c)  Placing an oral dosage in the resident's hand or

30  placing the dosage in another container and helping the

31  resident by lifting the container to his or her mouth.

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 1         (d)  Applying topical medications.

 2         (e)  Returning the medication container to proper

 3  storage.

 4         (f)  Keeping a record of when a resident receives

 5  assistance with self-administration under this section.

 6         (4)  Assistance with self-administration does not

 7  include:

 8         (a)  Mixing, compounding, converting, or calculating

 9  medication doses, except for measuring a prescribed amount of

10  liquid medication or breaking a scored tablet or crushing a

11  tablet as prescribed.

12         (b)  The preparation of syringes for injection or the

13  administration of medications by any injectable route.

14         (c)  Administration of medications through intermittent

15  positive pressure breathing machines or a nebulizer.

16         (d)  Administration of medications by way of a tube

17  inserted in a cavity of the body.

18         (e)  Administration of parenteral preparations.

19         (f)  Irrigations or debriding agents used in the

20  treatment of a skin condition.

21         (g)  Rectal, urethral, or vaginal preparations.

22         (h)  Medications ordered by the physician or health

23  care professional with prescriptive authority to be given "as

24  needed," unless the order is written with specific parameters

25  that preclude independent judgment on the part of the

26  unlicensed person, and at the request of a competent resident.

27         (i)  Medications for which the time of administration,

28  the amount, the strength of dosage, the method of

29  administration, or the reason for administration requires

30  judgment or discretion on the part of the unlicensed person.

31  

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 1         (5)  Assistance with the self-administration of

 2  medication by an unlicensed person as described in this

 3  section shall not be considered administration as defined in

 4  s. 465.003.

 5         (6)  The department may by rule establish facility

 6  procedures and interpret terms as necessary to implement this

 7  section.

 8         Section 49.  Section 400.426, Florida Statutes, is

 9  renumbered as section 429.26, Florida Statutes, and amended to

10  read:

11         429.26 400.426  Appropriateness of placements;

12  examinations of residents.--

13         (1)  The owner or administrator of a facility is

14  responsible for determining the appropriateness of admission

15  of an individual to the facility and for determining the

16  continued appropriateness of residence of an individual in the

17  facility.  A determination shall be based upon an assessment

18  of the strengths, needs, and preferences of the resident, the

19  care and services offered or arranged for by the facility in

20  accordance with facility policy, and any limitations in law or

21  rule related to admission criteria or continued residency for

22  the type of license held by the facility under this part.  A

23  resident may not be moved from one facility to another without

24  consultation with and agreement from the resident or, if

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

26  resident's family, guardian, surrogate, or attorney in fact.

27  In the case of a resident who has been placed by the

28  department or the Department of Children and Family Services,

29  the administrator must notify the appropriate contact person

30  in the applicable department.

31  

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 1         (2)  A physician or nurse practitioner who is employed

 2  by an assisted living facility to provide an initial

 3  examination for admission purposes may not have financial

 4  interest in the facility.

 5         (3)  Persons licensed under part I of chapter 464 who

 6  are employed by or under contract with a facility shall, on a

 7  routine basis or at least monthly, perform a nursing

 8  assessment of the residents for whom they are providing

 9  nursing services ordered by a physician, except administration

10  of medication, and shall document such assessment, including

11  any substantial changes in a resident's status which may

12  necessitate relocation to a nursing home, hospital, or

13  specialized health care facility.  Such records shall be

14  maintained in the facility for inspection by the agency and

15  shall be forwarded to the resident's case manager, if

16  applicable.

17         (4)  If possible, each resident shall have been

18  examined by a licensed physician or a licensed nurse

19  practitioner within 60 days before admission to the facility.

20  The signed and completed medical examination report shall be

21  submitted to the owner or administrator of the facility who

22  shall use the information contained therein to assist in the

23  determination of the appropriateness of the resident's

24  admission and continued stay in the facility.  The medical

25  examination report shall become a permanent part of the record

26  of the resident at the facility and shall be made available to

27  the agency during inspection or upon request.  An assessment

28  that has been completed through the Comprehensive Assessment

29  and Review for Long-Term Care Services (CARES) Program

30  fulfills the requirements for a medical examination under this

31  subsection and s. 429.07(3)(b)6. s. 400.407(3)(b)6.

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 1         (5)  Except as provided in s. 429.07 s. 400.407, if a

 2  medical examination has not been completed within 60 days

 3  before the admission of the resident to the facility, a

 4  licensed physician or licensed nurse practitioner shall

 5  examine the resident and complete a medical examination form

 6  provided by the agency within 30 days following the admission

 7  to the facility to enable the facility owner or administrator

 8  to determine the appropriateness of the admission. The medical

 9  examination form shall become a permanent part of the record

10  of the resident at the facility and shall be made available to

11  the agency during inspection by the agency or upon request.

12         (6)  Any resident accepted in a facility and placed by

13  the department or the Department of Children and Family

14  Services shall have been examined by medical personnel within

15  30 days before placement in the facility. The examination

16  shall include an assessment of the appropriateness of

17  placement in a facility.  The findings of this examination

18  shall be recorded on the examination form provided by the

19  agency. The completed form shall accompany the resident and

20  shall be submitted to the facility owner or administrator.

21  Additionally, in the case of a mental health resident, the

22  Department of Children and Family Services must provide

23  documentation that the individual has been assessed by a

24  psychiatrist, clinical psychologist, clinical social worker,

25  or psychiatric nurse, or an individual who is supervised by

26  one of these professionals, and determined to be appropriate

27  to reside in an assisted living facility. The documentation

28  must be in the facility within 30 days after the mental health

29  resident has been admitted to the facility. An evaluation

30  completed upon discharge from a state mental hospital meets

31  the requirements of this subsection related to appropriateness

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 1  for placement as a mental health resident providing it was

 2  completed within 90 days prior to admission to the facility.

 3  The applicable department shall provide to the facility

 4  administrator any information about the resident that would

 5  help the administrator meet his or her responsibilities under

 6  subsection (1).  Further, department personnel shall explain

 7  to the facility operator any special needs of the resident and

 8  advise the operator whom to call should problems arise. The

 9  applicable department shall advise and assist the facility

10  administrator where the special needs of residents who are

11  recipients of optional state supplementation require such

12  assistance.

13         (7)  The facility must notify a licensed physician when

14  a resident exhibits signs of dementia or cognitive impairment

15  or has a change of condition in order to rule out the presence

16  of an underlying physiological condition that may be

17  contributing to such dementia or impairment. The notification

18  must occur within 30 days after the acknowledgment of such

19  signs by facility staff. If an underlying condition is

20  determined to exist, the facility shall arrange, with the

21  appropriate health care provider, the necessary care and

22  services to treat the condition.

23         (8)  The Department of Children and Family Services may

24  require an examination for supplemental security income and

25  optional state supplementation recipients residing in

26  facilities at any time and shall provide the examination

27  whenever a resident's condition requires it.  Any facility

28  administrator; personnel of the agency, the department, or the

29  Department of Children and Family Services; or long-term care

30  ombudsman council member who believes a resident needs to be

31  evaluated shall notify the resident's case manager, who shall

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 1  take appropriate action.  A report of the examination findings

 2  shall be provided to the resident's case manager and the

 3  facility administrator to help the administrator meet his or

 4  her responsibilities under subsection (1).

 5         (9)  If, at any time after admission to a facility, a

 6  resident appears to need care beyond that which the facility

 7  is licensed to provide, the agency shall require the resident

 8  to be physically examined by a licensed physician or licensed

 9  nurse practitioner.  This examination shall, to the extent

10  possible, be performed by the resident's preferred physician

11  or nurse practitioner and shall be paid for by the resident

12  with personal funds, except as provided in s. 429.18(1)(b) s.

13  400.418(1)(b). Following this examination, the examining

14  physician or licensed nurse practitioner shall complete and

15  sign a medical form provided by the agency. The completed

16  medical form shall be submitted to the agency within 30 days

17  after the date the facility owner or administrator is notified

18  by the agency that the physical examination is required.

19  After consultation with the physician or licensed nurse

20  practitioner who performed the examination, a medical review

21  team designated by the agency shall then determine whether the

22  resident is appropriately residing in the facility.  The

23  medical review team shall base its decision on a comprehensive

24  review of the resident's physical and functional status,

25  including the resident's preferences, and not on an isolated

26  health-related problem.  In the case of a mental health

27  resident, if the resident appears to have needs in addition to

28  those identified in the community living support plan, the

29  agency may require an evaluation by a mental health

30  professional, as determined by the Department of Children and

31  Family Services.  A facility may not be required to retain a

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 1  resident who requires more services or care than the facility

 2  is able to provide in accordance with its policies and

 3  criteria for admission and continued residency. Members of the

 4  medical review team making the final determination may not

 5  include the agency personnel who initially questioned the

 6  appropriateness of a resident's placement. Such determination

 7  is final and binding upon the facility and the resident. Any

 8  resident who is determined by the medical review team to be

 9  inappropriately residing in a facility shall be given 30 days'

10  written notice to relocate by the owner or administrator,

11  unless the resident's continued residence in the facility

12  presents an imminent danger to the health, safety, or welfare

13  of the resident or a substantial probability exists that death

14  or serious physical harm would result to the resident if

15  allowed to remain in the facility.

16         (10)  A terminally ill resident who no longer meets the

17  criteria for continued residency may remain in the facility if

18  the arrangement is mutually agreeable to the resident and the

19  facility; additional care is rendered through a licensed

20  hospice, and the resident is under the care of a physician who

21  agrees that the physical needs of the resident are being met.

22         (11)  Facilities licensed to provide extended

23  congregate care services shall promote aging in place by

24  determining appropriateness of continued residency based on a

25  comprehensive review of the resident's physical and functional

26  status; the ability of the facility, family members, friends,

27  or any other pertinent individuals or agencies to provide the

28  care and services required; and documentation that a written

29  service plan consistent with facility policy has been

30  developed and implemented to ensure that the resident's needs

31  and preferences are addressed.

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 1         (12)  No resident who requires 24-hour nursing

 2  supervision, except for a resident who is an enrolled hospice

 3  patient pursuant to part IV VI of this chapter 400, shall be

 4  retained in a facility licensed under this part.

 5         Section 50.  Section 400.427, Florida Statutes, is

 6  renumbered as section 429.27, Florida Statutes, is amended to

 7  read:

 8         429.27 400.427  Property and personal affairs of

 9  residents.--

10         (1)(a)  A resident shall be given the option of using

11  his or her own belongings, as space permits; choosing his or

12  her roommate; and, whenever possible, unless the resident is

13  adjudicated incompetent or incapacitated under state law,

14  managing his or her own affairs.

15         (b)  The admission of a resident to a facility and his

16  or her presence therein shall not confer on the facility or

17  its owner, administrator, employees, or representatives any

18  authority to manage, use, or dispose of any property of the

19  resident; nor shall such admission or presence confer on any

20  of such persons any authority or responsibility for the

21  personal affairs of the resident, except that which may be

22  necessary for the safe management of the facility or for the

23  safety of the resident.

24         (2)  A facility, or an owner, administrator, employee,

25  or representative thereof, may not act as the guardian,

26  trustee, or conservator for any resident of the assisted

27  living facility or any of such resident's property. An owner,

28  administrator, or staff member, or representative thereof, may

29  not act as a competent resident's payee for social security,

30  veteran's, or railroad benefits without the consent of the

31  resident.  Any facility whose owner, administrator, or staff,

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 1  or representative thereof, serves as representative payee for

 2  any resident of the facility shall file a surety bond with the

 3  agency in an amount equal to twice the average monthly

 4  aggregate income or personal funds due to residents, or

 5  expendable for their account, which are received by a

 6  facility.  Any facility whose owner, administrator, or staff,

 7  or a representative thereof, is granted power of attorney for

 8  any resident of the facility shall file a surety bond with the

 9  agency for each resident for whom such power of attorney is

10  granted.  The surety bond shall be in an amount equal to twice

11  the average monthly income of the resident, plus the value of

12  any resident's property under the control of the attorney in

13  fact.  The bond shall be executed by the facility as principal

14  and a licensed surety company.  The bond shall be conditioned

15  upon the faithful compliance of the facility with this section

16  and shall run to the agency for the benefit of any resident

17  who suffers a financial loss as a result of the misuse or

18  misappropriation by a facility of funds held pursuant to this

19  subsection.  Any surety company that cancels or does not renew

20  the bond of any licensee shall notify the agency in writing

21  not less than 30 days in advance of such action, giving the

22  reason for the cancellation or nonrenewal.  Any facility

23  owner, administrator, or staff, or representative thereof, who

24  is granted power of attorney for any resident of the facility

25  shall, on a monthly basis, be required to provide the resident

26  a written statement of any transaction made on behalf of the

27  resident pursuant to this subsection, and a copy of such

28  statement given to the resident shall be retained in each

29  resident's file and available for agency inspection.

30         (3)  A facility, upon mutual consent with the resident,

31  shall provide for the safekeeping in the facility of personal

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 1  effects not in excess of $500 and funds of the resident not in

 2  excess of $200 cash, and shall keep complete and accurate

 3  records of all such funds and personal effects received. If a

 4  resident is absent from a facility for 24 hours or more, the

 5  facility may provide for the safekeeping of the resident's

 6  personal effects in excess of $500.

 7         (4)  Any funds or other property belonging to or due to

 8  a resident, or expendable for his or her account, which is

 9  received by a facility shall be trust funds which shall be

10  kept separate from the funds and property of the facility and

11  other residents or shall be specifically credited to such

12  resident.  Such trust funds shall be used or otherwise

13  expended only for the account of the resident. At least once

14  every 3 months, unless upon order of a court of competent

15  jurisdiction, the facility shall furnish the resident and his

16  or her guardian, trustee, or conservator, if any, a complete

17  and verified statement of all funds and other property to

18  which this subsection applies, detailing the amount and items

19  received, together with their sources and disposition.  In any

20  event, the facility shall furnish such statement annually and

21  upon the discharge or transfer of a resident.  Any

22  governmental agency or private charitable agency contributing

23  funds or other property to the account of a resident shall

24  also be entitled to receive such statement annually and upon

25  the discharge or transfer of the resident.

26         (5)  Any personal funds available to facility residents

27  may be used by residents as they choose to obtain clothing,

28  personal items, leisure activities, and other supplies and

29  services for their personal use.  A facility may not demand,

30  require, or contract for payment of all or any part of the

31  personal funds in satisfaction of the facility rate for

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 1  supplies and services beyond that amount agreed to in writing

 2  and may not levy an additional charge to the individual or the

 3  account for any supplies or services that the facility has

 4  agreed by contract to provide as part of the standard monthly

 5  rate.  Any service or supplies provided by the facility which

 6  are charged separately to the individual or the account may be

 7  provided only with the specific written consent of the

 8  individual, who shall be furnished in advance of the provision

 9  of the services or supplies with an itemized written statement

10  to be attached to the contract setting forth the charges for

11  the services or supplies.

12         (6)(a)  In addition to any damages or civil penalties

13  to which a person is subject, any person who:

14         1.  Intentionally withholds a resident's personal

15  funds, personal property, or personal needs allowance, or who

16  demands, beneficially receives, or contracts for payment of

17  all or any part of a resident's personal property or personal

18  needs allowance in satisfaction of the facility rate for

19  supplies and services; or

20         2.  Borrows from or pledges any personal funds of a

21  resident, other than the amount agreed to by written contract

22  under s. 429.24 s. 400.424,

23  

24  commits a misdemeanor of the first degree, punishable as

25  provided in s. 775.082 or s. 775.083.

26         (b)  Any facility owner, administrator, or staff, or

27  representative thereof, who is granted power of attorney for

28  any resident of the facility and who misuses or

29  misappropriates funds obtained through this power commits a

30  felony of the third degree, punishable as provided in s.

31  775.082, s. 775.083, or s. 775.084.

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 1         (7)  In the event of the death of a resident, a

 2  licensee shall return all refunds, funds, and property held in

 3  trust to the resident's personal representative, if one has

 4  been appointed at the time the facility disburses such funds,

 5  and, if not, to the resident's spouse or adult next of kin

 6  named in a beneficiary designation form provided by the

 7  facility to the resident. If the resident has no spouse or

 8  adult next of kin or such person cannot be located, funds due

 9  the resident shall be placed in an interest-bearing account,

10  and all property held in trust by the facility shall be

11  safeguarded until such time as the funds and property are

12  disbursed pursuant to the Florida Probate Code.  Such funds

13  shall be kept separate from the funds and property of the

14  facility and other residents of the facility. If the funds of

15  the deceased resident are not disbursed pursuant to the

16  Florida Probate Code within 2 years after the resident's

17  death, the funds shall be deposited in the Health Care Trust

18  Fund administered by the agency.

19         (8)  The department may by rule clarify terms and

20  specify procedures and documentation necessary to administer

21  the provisions of this section relating to the proper

22  management of residents' funds and personal property and the

23  execution of surety bonds.

24         Section 51.  Section 400.428, Florida Statutes, is

25  renumbered as section 429.28, Florida Statutes, and amended to

26  read:

27         429.28 400.428  Resident bill of rights.--

28         (1)  No resident of a facility shall be deprived of any

29  civil or legal rights, benefits, or privileges guaranteed by

30  law, the Constitution of the State of Florida, or the

31  

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 1  Constitution of the United States as a resident of a facility.

 2  Every resident of a facility shall have the right to:

 3         (a)  Live in a safe and decent living environment, free

 4  from abuse and neglect.

 5         (b)  Be treated with consideration and respect and with

 6  due recognition of personal dignity, individuality, and the

 7  need for privacy.

 8         (c)  Retain and use his or her own clothes and other

 9  personal property in his or her immediate living quarters, so

10  as to maintain individuality and personal dignity, except when

11  the facility can demonstrate that such would be unsafe,

12  impractical, or an infringement upon the rights of other

13  residents.

14         (d)  Unrestricted private communication, including

15  receiving and sending unopened correspondence, access to a

16  telephone, and visiting with any person of his or her choice,

17  at any time between the hours of 9 a.m. and 9 p.m. at a

18  minimum.  Upon request, the facility shall make provisions to

19  extend visiting hours for caregivers and out-of-town guests,

20  and in other similar situations.

21         (e)  Freedom to participate in and benefit from

22  community services and activities and to achieve the highest

23  possible level of independence, autonomy, and interaction

24  within the community.

25         (f)  Manage his or her financial affairs unless the

26  resident or, if applicable, the resident's representative,

27  designee, surrogate, guardian, or attorney in fact authorizes

28  the administrator of the facility to provide safekeeping for

29  funds as provided in s. 429.27 s. 400.427.

30         (g)  Share a room with his or her spouse if both are

31  residents of the facility.

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 1         (h)  Reasonable opportunity for regular exercise

 2  several times a week and to be outdoors at regular and

 3  frequent intervals except when prevented by inclement weather.

 4         (i)  Exercise civil and religious liberties, including

 5  the right to independent personal decisions.  No religious

 6  beliefs or practices, nor any attendance at religious

 7  services, shall be imposed upon any resident.

 8         (j)  Access to adequate and appropriate health care

 9  consistent with established and recognized standards within

10  the community.

11         (k)  At least 45 days' notice of relocation or

12  termination of residency from the facility unless, for medical

13  reasons, the resident is certified by a physician to require

14  an emergency relocation to a facility providing a more skilled

15  level of care or the resident engages in a pattern of conduct

16  that is harmful or offensive to other residents.  In the case

17  of a resident who has been adjudicated mentally incapacitated,

18  the guardian shall be given at least 45 days' notice of a

19  nonemergency relocation or residency termination.  Reasons for

20  relocation shall be set forth in writing.  In order for a

21  facility to terminate the residency of an individual without

22  notice as provided herein, the facility shall show good cause

23  in a court of competent jurisdiction.

24         (l)  Present grievances and recommend changes in

25  policies, procedures, and services to the staff of the

26  facility, governing officials, or any other person without

27  restraint, interference, coercion, discrimination, or

28  reprisal. Each facility shall establish a grievance procedure

29  to facilitate the residents' exercise of this right.  This

30  right includes access to ombudsman volunteers and advocates

31  

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 1  and the right to be a member of, to be active in, and to

 2  associate with advocacy or special interest groups.

 3         (2)  The administrator of a facility shall ensure that

 4  a written notice of the rights, obligations, and prohibitions

 5  set forth in this part is posted in a prominent place in each

 6  facility and read or explained to residents who cannot read.

 7  This notice shall include the name, address, and telephone

 8  numbers of the local ombudsman council and central abuse

 9  hotline and, when applicable, the Advocacy Center for Persons

10  with Disabilities, Inc., and the Florida local advocacy

11  council, where complaints may be lodged.  The facility must

12  ensure a resident's access to a telephone to call the local

13  ombudsman council, central abuse hotline, Advocacy Center for

14  Persons with Disabilities, Inc., and the Florida local

15  advocacy council.

16         (3)(a)  The agency shall conduct a survey to determine

17  general compliance with facility standards and compliance with

18  residents' rights as a prerequisite to initial licensure or

19  licensure renewal.

20         (b)  In order to determine whether the facility is

21  adequately protecting residents' rights, the biennial survey

22  shall include private informal conversations with a sample of

23  residents and consultation with the ombudsman council in the

24  planning and service area in which the facility is located to

25  discuss residents' experiences within the facility.

26         (c)  During any calendar year in which no survey is

27  conducted, the agency shall conduct at least one monitoring

28  visit of each facility cited in the previous year for a class

29  I or class II violation, or more than three uncorrected class

30  III violations.

31  

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 1         (d)  The agency may conduct periodic followup

 2  inspections as necessary to monitor the compliance of

 3  facilities with a history of any class I, class II, or class

 4  III violations that threaten the health, safety, or security

 5  of residents.

 6         (e)  The agency may conduct complaint investigations as

 7  warranted to investigate any allegations of noncompliance with

 8  requirements required under this part or rules adopted under

 9  this part.

10         (4)  The facility shall not hamper or prevent residents

11  from exercising their rights as specified in this section.

12         (5)  No facility or employee of a facility may serve

13  notice upon a resident to leave the premises or take any other

14  retaliatory action against any person who:

15         (a)  Exercises any right set forth in this section.

16         (b)  Appears as a witness in any hearing, inside or

17  outside the facility.

18         (c)  Files a civil action alleging a violation of the

19  provisions of this part or notifies a state attorney or the

20  Attorney General of a possible violation of such provisions.

21         (6)  Any facility which terminates the residency of an

22  individual who participated in activities specified in

23  subsection (5) shall show good cause in a court of competent

24  jurisdiction.

25         (7)  Any person who submits or reports a complaint

26  concerning a suspected violation of the provisions of this

27  part or concerning services and conditions in facilities, or

28  who testifies in any administrative or judicial proceeding

29  arising from such a complaint, shall have immunity from any

30  civil or criminal liability therefor, unless such person has

31  acted in bad faith or with malicious purpose or the court

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 1  finds that there was a complete absence of a justiciable issue

 2  of either law or fact raised by the losing party.

 3         Section 52.  Section 400.429, Florida Statutes, is

 4  renumbered as section 429.29, Florida Statutes, and amended to

 5  read:

 6         429.29 400.429  Civil actions to enforce rights.--

 7         (1)  Any person or resident whose rights as specified

 8  in this part are violated shall have a cause of action.  The

 9  action may be brought by the resident or his or her guardian,

10  or by a person or organization acting on behalf of a resident

11  with the consent of the resident or his or her guardian, or by

12  the personal representative of the estate of a deceased

13  resident regardless of the cause of death. If the action

14  alleges a claim for the resident's rights or for negligence

15  that caused the death of the resident, the claimant shall be

16  required to elect either survival damages pursuant to s.

17  46.021 or wrongful death damages pursuant to s. 768.21. If the

18  action alleges a claim for the resident's rights or for

19  negligence that did not cause the death of the resident, the

20  personal representative of the estate may recover damages for

21  the negligence that caused injury to the resident. The action

22  may be brought in any court of competent jurisdiction to

23  enforce such rights and to recover actual damages, and

24  punitive damages for violation of the rights of a resident or

25  negligence. Any resident who prevails in seeking injunctive

26  relief or a claim for an administrative remedy is entitled to

27  recover the costs of the action and a reasonable attorney's

28  fee assessed against the defendant not to exceed $25,000. Fees

29  shall be awarded solely for the injunctive or administrative

30  relief and not for any claim or action for damages whether

31  such claim or action is brought together with a request for an

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 1  injunction or administrative relief or as a separate action,

 2  except as provided under s. 768.79 or the Florida Rules of

 3  Civil Procedure. Sections 429.29-429.298 400.429-400.4303

 4  provide the exclusive remedy for a cause of action for

 5  recovery of damages for the personal injury or death of a

 6  resident arising out of negligence or a violation of rights

 7  specified in s. 429.28 s. 400.428. This section does not

 8  preclude theories of recovery not arising out of negligence or

 9  s. 429.28 s. 400.428 which are available to a resident or to

10  the agency. The provisions of chapter 766 do not apply to any

11  cause of action brought under ss. 429.29-429.298 ss.

12  400.429-400.4303.

13         (2)  In any claim brought pursuant to this part

14  alleging a violation of resident's rights or negligence

15  causing injury to or the death of a resident, the claimant

16  shall have the burden of proving, by a preponderance of the

17  evidence, that:

18         (a)  The defendant owed a duty to the resident;

19         (b)  The defendant breached the duty to the resident;

20         (c)  The breach of the duty is a legal cause of loss,

21  injury, death, or damage to the resident; and

22         (d)  The resident sustained loss, injury, death, or

23  damage as a result of the breach.

24  

25  Nothing in this part shall be interpreted to create strict

26  liability. A violation of the rights set forth in s. 429.28 s.

27  400.428 or in any other standard or guidelines specified in

28  this part or in any applicable administrative standard or

29  guidelines of this state or a federal regulatory agency shall

30  be evidence of negligence but shall not be considered

31  negligence per se.

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 1         (3)  In any claim brought pursuant to this section, a

 2  licensee, person, or entity shall have a duty to exercise

 3  reasonable care.  Reasonable care is that degree of care which

 4  a reasonably careful licensee, person, or entity would use

 5  under like circumstances.

 6         (4)  In any claim for resident's rights violation or

 7  negligence by a nurse licensed under part I of chapter 464,

 8  such nurse shall have the duty to exercise care consistent

 9  with the prevailing professional standard of care for a nurse.

10  The prevailing professional standard of care for a nurse shall

11  be that level of care, skill, and treatment which, in light of

12  all relevant surrounding circumstances, is recognized as

13  acceptable and appropriate by reasonably prudent similar

14  nurses.

15         (5)  Discovery of financial information for the purpose

16  of determining the value of punitive damages may not be had

17  unless the plaintiff shows the court by proffer or evidence in

18  the record that a reasonable basis exists to support a claim

19  for punitive damages.

20         (6)  In addition to any other standards for punitive

21  damages, any award of punitive damages must be reasonable in

22  light of the actual harm suffered by the resident and the

23  egregiousness of the conduct that caused the actual harm to

24  the resident.

25         (7)  The resident or the resident's legal

26  representative shall serve a copy of any complaint alleging in

27  whole or in part a violation of any rights specified in this

28  part to the Agency for Health Care Administration at the time

29  of filing the initial complaint with the clerk of the court

30  for the county in which the action is pursued. The requirement

31  of providing a copy of the complaint to the agency does not

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 1  impair the resident's legal rights or ability to seek relief

 2  for his or her claim.

 3         Section 53.  Section 400.4293, Florida Statutes, is

 4  renumbered as section 429.293, Florida Statutes, and amended

 5  to read:

 6         429.293 400.4293  Presuit notice; investigation;

 7  notification of violation of residents' rights or alleged

 8  negligence; claims evaluation procedure; informal discovery;

 9  review; settlement offer; mediation.--

10         (1)  As used in this section, the term:

11         (a)  "Claim for residents' rights violation or

12  negligence" means a negligence claim alleging injury to or the

13  death of a resident arising out of an asserted violation of

14  the rights of a resident under s. 429.28 s. 400.428 or an

15  asserted deviation from the applicable standard of care.

16         (b)  "Insurer" means any self-insurer authorized under

17  s. 627.357, liability insurance carrier, joint underwriting

18  association, or uninsured prospective defendant.

19         (2)  Prior to filing a claim for a violation of a

20  resident's rights or a claim for negligence, a claimant

21  alleging injury to or the death of a resident shall notify

22  each prospective defendant by certified mail, return receipt

23  requested, of an asserted violation of a resident's rights

24  provided in s. 429.28 s. 400.428 or deviation from the

25  standard of care. Such notification shall include an

26  identification of the rights the prospective defendant has

27  violated and the negligence alleged to have caused the

28  incident or incidents and a brief description of the injuries

29  sustained by the resident which are reasonably identifiable at

30  the time of notice. The notice shall contain a certificate of

31  counsel that counsel's reasonable investigation gave rise to a

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 1  good faith belief that grounds exist for an action against

 2  each prospective defendant.

 3         (3)(a)  No suit may be filed for a period of 75 days

 4  after notice is mailed to any prospective defendant. During

 5  the 75-day period, the prospective defendants or their

 6  insurers shall conduct an evaluation of the claim to determine

 7  the liability of each defendant and to evaluate the damages of

 8  the claimants. Each defendant or insurer of the defendant

 9  shall have a procedure for the prompt evaluation of claims

10  during the 75-day period. The procedure shall include one or

11  more of the following:

12         1.  Internal review by a duly qualified facility risk

13  manager or claims adjuster;

14         2.  Internal review by counsel for each prospective

15  defendant;

16         3.  A quality assurance committee authorized under any

17  applicable state or federal statutes or regulations; or

18         4.  Any other similar procedure that fairly and

19  promptly evaluates the claims.

20  

21  Each defendant or insurer of the defendant shall evaluate the

22  claim in good faith.

23         (b)  At or before the end of the 75 days, the defendant

24  or insurer of the defendant shall provide the claimant with a

25  written response:

26         1.  Rejecting the claim; or

27         2.  Making a settlement offer.

28         (c)  The response shall be delivered to the claimant if

29  not represented by counsel or to the claimant's attorney, by

30  certified mail, return receipt requested. Failure of the

31  prospective defendant or insurer of the defendant to reply to

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 1  the notice within 75 days after receipt shall be deemed a

 2  rejection of the claim for purposes of this section.

 3         (4)  The notification of a violation of a resident's

 4  rights or alleged negligence shall be served within the

 5  applicable statute of limitations period; however, during the

 6  75-day period, the statute of limitations is tolled as to all

 7  prospective defendants. Upon stipulation by the parties, the

 8  75-day period may be extended and the statute of limitations

 9  is tolled during any such extension. Upon receiving written

10  notice by certified mail, return receipt requested, of

11  termination of negotiations in an extended period, the

12  claimant shall have 60 days or the remainder of the period of

13  the statute of limitations, whichever is greater, within which

14  to file suit.

15         (5)  No statement, discussion, written document,

16  report, or other work product generated by presuit claims

17  evaluation procedures under this section is discoverable or

18  admissible in any civil action for any purpose by the opposing

19  party. All participants, including, but not limited to,

20  physicians, investigators, witnesses, and employees or

21  associates of the defendant, are immune from civil liability

22  arising from participation in the presuit claims evaluation

23  procedure. Any licensed physician or registered nurse may be

24  retained by either party to provide an opinion regarding the

25  reasonable basis of the claim. The presuit opinions of the

26  expert are not discoverable or admissible in any civil action

27  for any purpose by the opposing party.

28         (6)  Upon receipt by a prospective defendant of a

29  notice of claim, the parties shall make discoverable

30  information available without formal discovery as provided in

31  subsection (7).

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 1         (7)  Informal discovery may be used by a party to

 2  obtain unsworn statements and the production of documents or

 3  things, as follows:

 4         (a)  Unsworn statements.--Any party may require other

 5  parties to appear for the taking of an unsworn statement. Such

 6  statements may be used only for the purpose of claims

 7  evaluation and are not discoverable or admissible in any civil

 8  action for any purpose by any party. A party seeking to take

 9  the unsworn statement of any party must give reasonable notice

10  in writing to all parties. The notice must state the time and

11  place for taking the statement and the name and address of the

12  party to be examined. Unless otherwise impractical, the

13  examination of any party must be done at the same time by all

14  other parties. Any party may be represented by counsel at the

15  taking of an unsworn statement. An unsworn statement may be

16  recorded electronically, stenographically, or on videotape.

17  The taking of unsworn statements is subject to the provisions

18  of the Florida Rules of Civil Procedure and may be terminated

19  for abuses.

20         (b)  Documents or things.--Any party may request

21  discovery of relevant documents or things. The documents or

22  things must be produced, at the expense of the requesting

23  party, within 20 days after the date of receipt of the

24  request. A party is required to produce relevant and

25  discoverable documents or things within that party's

26  possession or control, if in good faith it can reasonably be

27  done within the timeframe of the claims evaluation process.

28         (8)  Each request for and notice concerning informal

29  discovery pursuant to this section must be in writing, and a

30  copy thereof must be sent to all parties. Such a request or

31  notice must bear a certificate of service identifying the name

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 1  and address of the person to whom the request or notice is

 2  served, the date of the request or notice, and the manner of

 3  service thereof.

 4         (9)  If a prospective defendant makes a written

 5  settlement offer, the claimant shall have 15 days from the

 6  date of receipt to accept the offer. An offer shall be deemed

 7  rejected unless accepted by delivery of a written notice of

 8  acceptance.

 9         (10)  To the extent not inconsistent with this part,

10  the provisions of the Florida Mediation Code, Florida Rules of

11  Civil Procedure, shall be applicable to such proceedings.

12         (11)  Within 30 days after the claimant's receipt of

13  defendant's response to the claim, the parties or their

14  designated representatives shall meet in mediation to discuss

15  the issues of liability and damages in accordance with the

16  mediation rules of practice and procedures adopted by the

17  Supreme Court. Upon stipulation of the parties, this 30-day

18  period may be extended and the statute of limitations is

19  tolled during the mediation and any such extension. At the

20  conclusion of mediation, the claimant shall have 60 days or

21  the remainder of the period of the statute of limitations,

22  whichever is greater, within which to file suit.

23         Section 54.  Section 400.431, Florida Statutes, is

24  renumbered as section 429.31, Florida Statutes, and amended to

25  read:

26         429.31 400.431  Closing of facility; notice; penalty.--

27         (1)  Whenever a facility voluntarily discontinues

28  operation, it shall inform the agency in writing at least 90

29  days prior to the discontinuance of operation.  The facility

30  shall also inform each resident or the next of kin, legal

31  representative, or agency acting on each resident's behalf, of

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 1  the fact and the proposed time of such discontinuance,

 2  following the notification requirements provided in s.

 3  429.28(1)(k) s. 400.428(1)(k).  In the event a resident has no

 4  person to represent him or her, the facility shall be

 5  responsible for referral to an appropriate social service

 6  agency for placement.

 7         (2)  Immediately upon the notice by the agency of the

 8  voluntary or involuntary termination of such operation, the

 9  agency shall monitor the transfer of residents to other

10  facilities and ensure that residents' rights are being

11  protected.  The department, in consultation with the

12  Department of Children and Family Services, shall specify

13  procedures for ensuring that all residents who receive

14  services are appropriately relocated.

15         (3)  All charges shall be prorated as of the date on

16  which the facility discontinues operation, and if any payments

17  have been made in advance, the payments for services not

18  received shall be refunded to the resident or the resident's

19  guardian within 10 working days of voluntary or involuntary

20  closure of the facility, whether or not such refund is

21  requested by the resident or guardian.

22         (4)  Immediately upon discontinuance of the operation

23  of a facility, the owner shall surrender the license therefor

24  to the agency, and the license shall be canceled.

25         (5)  The agency may levy a fine in an amount no greater

26  than $5,000 upon each person or business entity that owns any

27  interest in a facility that terminates operation without

28  providing notice to the agency and the residents of the

29  facility at least 30 days before operation ceases.  This fine

30  shall not be levied against any facility involuntarily closed

31  at the initiation of the agency.  The agency shall use the

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 1  proceeds of the fines to operate the facility until all

 2  residents of the facility are relocated and shall deposit any

 3  balance of the proceeds into the Health Care Trust Fund

 4  established pursuant to s. 429.18 s. 400.418.

 5         Section 55.  Section 400.441, Florida Statutes, is

 6  renumbered as section 429.41, Florida Statutes, and amended to

 7  read:

 8         429.41 400.441  Rules establishing standards.--

 9         (1)  It is the intent of the Legislature that rules

10  published and enforced pursuant to this section shall include

11  criteria by which a reasonable and consistent quality of

12  resident care and quality of life may be ensured and the

13  results of such resident care may be demonstrated.  Such rules

14  shall also ensure a safe and sanitary environment that is

15  residential and noninstitutional in design or nature.  It is

16  further intended that reasonable efforts be made to

17  accommodate the needs and preferences of residents to enhance

18  the quality of life in a facility. In order to provide safe

19  and sanitary facilities and the highest quality of resident

20  care accommodating the needs and preferences of residents, the

21  department, in consultation with the agency, the Department of

22  Children and Family Services, and the Department of Health,

23  shall adopt rules, policies, and procedures to administer this

24  part, which must include reasonable and fair minimum standards

25  in relation to:

26         (a)  The requirements for and maintenance of

27  facilities, not in conflict with the provisions of chapter

28  553, relating to plumbing, heating, cooling, lighting,

29  ventilation, living space, and other housing conditions, which

30  will ensure the health, safety, and comfort of residents and

31  protection from fire hazard, including adequate provisions for

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 1  fire alarm and other fire protection suitable to the size of

 2  the structure. Uniform firesafety standards shall be

 3  established and enforced by the State Fire Marshal in

 4  cooperation with the agency, the department, and the

 5  Department of Health.

 6         1.  Evacuation capability determination.--

 7         a.  The provisions of the National Fire Protection

 8  Association, NFPA 101A, Chapter 5, 1995 edition, shall be used

 9  for determining the ability of the residents, with or without

10  staff assistance, to relocate from or within a licensed

11  facility to a point of safety as provided in the fire codes

12  adopted herein. An evacuation capability evaluation for

13  initial licensure shall be conducted within 6 months after the

14  date of licensure. For existing licensed facilities that are

15  not equipped with an automatic fire sprinkler system, the

16  administrator shall evaluate the evacuation capability of

17  residents at least annually. The evacuation capability

18  evaluation for each facility not equipped with an automatic

19  fire sprinkler system shall be validated, without liability,

20  by the State Fire Marshal, by the local fire marshal, or by

21  the local authority having jurisdiction over firesafety,

22  before the license renewal date. If the State Fire Marshal,

23  local fire marshal, or local authority having jurisdiction

24  over firesafety has reason to believe that the evacuation

25  capability of a facility as reported by the administrator may

26  have changed, it may, with assistance from the facility

27  administrator, reevaluate the evacuation capability through

28  timed exiting drills. Translation of timed fire exiting drills

29  to evacuation capability may be determined:

30         (I)  Three minutes or less: prompt.

31  

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 1         (II)  More than 3 minutes, but not more than 13

 2  minutes: slow.

 3         (III)  More than 13 minutes: impractical.

 4         b.  The Office of the State Fire Marshal shall provide

 5  or cause the provision of training and education on the proper

 6  application of Chapter 5, NFPA 101A, 1995 edition, to its

 7  employees, to staff of the Agency for Health Care

 8  Administration who are responsible for regulating facilities

 9  under this part, and to local governmental inspectors. The

10  Office of the State Fire Marshal shall provide or cause the

11  provision of this training within its existing budget, but may

12  charge a fee for this training to offset its costs. The

13  initial training must be delivered within 6 months after July

14  1, 1995, and as needed thereafter.

15         c.  The Office of the State Fire Marshal, in

16  cooperation with provider associations, shall provide or cause

17  the provision of a training program designed to inform

18  facility operators on how to properly review bid documents

19  relating to the installation of automatic fire sprinklers. The

20  Office of the State Fire Marshal shall provide or cause the

21  provision of this training within its existing budget, but may

22  charge a fee for this training to offset its costs. The

23  initial training must be delivered within 6 months after July

24  1, 1995, and as needed thereafter.

25         d.  The administrator of a licensed facility shall sign

26  an affidavit verifying the number of residents occupying the

27  facility at the time of the evacuation capability evaluation.

28         2.  Firesafety requirements.--

29         a.  Except for the special applications provided

30  herein, effective January 1, 1996, the provisions of the

31  National Fire Protection Association, Life Safety Code, NFPA

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 1  101, 1994 edition, Chapter 22 for new facilities and Chapter

 2  23 for existing facilities shall be the uniform fire code

 3  applied by the State Fire Marshal for assisted living

 4  facilities, pursuant to s. 633.022.

 5         b.  Any new facility, regardless of size, that applies

 6  for a license on or after January 1, 1996, must be equipped

 7  with an automatic fire sprinkler system. The exceptions as

 8  provided in section 22-2.3.5.1, NFPA 101, 1994 edition, as

 9  adopted herein, apply to any new facility housing eight or

10  fewer residents. On July 1, 1995, local governmental entities

11  responsible for the issuance of permits for construction shall

12  inform, without liability, any facility whose permit for

13  construction is obtained prior to January 1, 1996, of this

14  automatic fire sprinkler requirement. As used in this part,

15  the term "a new facility" does not mean an existing facility

16  that has undergone change of ownership.

17         c.  Notwithstanding any provision of s. 633.022 or of

18  the National Fire Protection Association, NFPA 101A, Chapter

19  5, 1995 edition, to the contrary, any existing facility

20  housing eight or fewer residents is not required to install an

21  automatic fire sprinkler system, nor to comply with any other

22  requirement in Chapter 23, NFPA 101, 1994 edition, that

23  exceeds the firesafety requirements of NFPA 101, 1988 edition,

24  that applies to this size facility, unless the facility has

25  been classified as impractical to evacuate. Any existing

26  facility housing eight or fewer residents that is classified

27  as impractical to evacuate must install an automatic fire

28  sprinkler system within the timeframes granted in this

29  section.

30         d.  Any existing facility that is required to install

31  an automatic fire sprinkler system under this paragraph need

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 1  not meet other firesafety requirements of Chapter 23, NFPA

 2  101, 1994 edition, which exceed the provisions of NFPA 101,

 3  1988 edition. The mandate contained in this paragraph which

 4  requires certain facilities to install an automatic fire

 5  sprinkler system supersedes any other requirement.

 6         e.  This paragraph does not supersede the exceptions

 7  granted in NFPA 101, 1988 edition or 1994 edition.

 8         f.  This paragraph does not exempt facilities from

 9  other firesafety provisions adopted under s. 633.022 and local

10  building code requirements in effect before July 1, 1995.

11         g.  A local government may charge fees only in an

12  amount not to exceed the actual expenses incurred by local

13  government relating to the installation and maintenance of an

14  automatic fire sprinkler system in an existing and properly

15  licensed assisted living facility structure as of January 1,

16  1996.

17         h.  If a licensed facility undergoes major

18  reconstruction or addition to an existing building on or after

19  January 1, 1996, the entire building must be equipped with an

20  automatic fire sprinkler system. Major reconstruction of a

21  building means repair or restoration that costs in excess of

22  50 percent of the value of the building as reported on the tax

23  rolls, excluding land, before reconstruction. Multiple

24  reconstruction projects within a 5-year period the total costs

25  of which exceed 50 percent of the initial value of the

26  building at the time the first reconstruction project was

27  permitted are to be considered as major reconstruction.

28  Application for a permit for an automatic fire sprinkler

29  system is required upon application for a permit for a

30  reconstruction project that creates costs that go over the

31  50-percent threshold.

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 1         i.  Any facility licensed before January 1, 1996, that

 2  is required to install an automatic fire sprinkler system

 3  shall ensure that the installation is completed within the

 4  following timeframes based upon evacuation capability of the

 5  facility as determined under subparagraph 1.:

 6         (I)  Impractical evacuation capability, 24 months.

 7         (II)  Slow evacuation capability, 48 months.

 8         (III)  Prompt evacuation capability, 60 months.

 9  

10  The beginning date from which the deadline for the automatic

11  fire sprinkler installation requirement must be calculated is

12  upon receipt of written notice from the local fire official

13  that an automatic fire sprinkler system must be installed. The

14  local fire official shall send a copy of the document

15  indicating the requirement of a fire sprinkler system to the

16  Agency for Health Care Administration.

17         j.  It is recognized that the installation of an

18  automatic fire sprinkler system may create financial hardship

19  for some facilities. The appropriate local fire official

20  shall, without liability, grant two 1-year extensions to the

21  timeframes for installation established herein, if an

22  automatic fire sprinkler installation cost estimate and proof

23  of denial from two financial institutions for a construction

24  loan to install the automatic fire sprinkler system are

25  submitted. However, for any facility with a class I or class

26  II, or a history of uncorrected class III, firesafety

27  deficiencies, an extension must not be granted. The local fire

28  official shall send a copy of the document granting the time

29  extension to the Agency for Health Care Administration.

30         k.  A facility owner whose facility is required to be

31  equipped with an automatic fire sprinkler system under Chapter

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 1  23, NFPA 101, 1994 edition, as adopted herein, must disclose

 2  to any potential buyer of the facility that an installation of

 3  an automatic fire sprinkler requirement exists. The sale of

 4  the facility does not alter the timeframe for the installation

 5  of the automatic fire sprinkler system.

 6         l.  Existing facilities required to install an

 7  automatic fire sprinkler system as a result of

 8  construction-type restrictions in Chapter 23, NFPA 101, 1994

 9  edition, as adopted herein, or evacuation capability

10  requirements shall be notified by the local fire official in

11  writing of the automatic fire sprinkler requirement, as well

12  as the appropriate date for final compliance as provided in

13  this subparagraph. The local fire official shall send a copy

14  of the document to the Agency for Health Care Administration.

15         m.  Except in cases of life-threatening fire hazards,

16  if an existing facility experiences a change in the evacuation

17  capability, or if the local authority having jurisdiction

18  identifies a construction-type restriction, such that an

19  automatic fire sprinkler system is required, it shall be

20  afforded time for installation as provided in this

21  subparagraph.

22  

23  Facilities that are fully sprinkled and in compliance with

24  other firesafety standards are not required to conduct more

25  than one of the required fire drills between the hours of 11

26  p.m. and 7 a.m., per year. In lieu of the remaining drills,

27  staff responsible for residents during such hours may be

28  required to participate in a mock drill that includes a review

29  of evacuation procedures. Such standards must be included or

30  referenced in the rules adopted by the State Fire Marshal.

31  Pursuant to s. 633.022(1)(b), the State Fire Marshal is the

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 1  final administrative authority for firesafety standards

 2  established and enforced pursuant to this section. All

 3  licensed facilities must have an annual fire inspection

 4  conducted by the local fire marshal or authority having

 5  jurisdiction.

 6         3.  Resident elopement requirements.--Facilities are

 7  required to conduct a minimum of two resident elopement

 8  prevention and response drills per year. All administrators

 9  and direct care staff must participate in the drills which

10  shall include a review of procedures to address resident

11  elopement. Facilities must document the implementation of the

12  drills and ensure that the drills are conducted in a manner

13  consistent with the facility's resident elopement policies and

14  procedures.

15         (b)  The preparation and annual update of a

16  comprehensive emergency management plan.  Such standards must

17  be included in the rules adopted by the department after

18  consultation with the Department of Community Affairs.  At a

19  minimum, the rules must provide for plan components that

20  address emergency evacuation transportation; adequate

21  sheltering arrangements; postdisaster activities, including

22  provision of emergency power, food, and water; postdisaster

23  transportation; supplies; staffing; emergency equipment;

24  individual identification of residents and transfer of

25  records; communication with families; and responses to family

26  inquiries.  The comprehensive emergency management plan is

27  subject to review and approval by the local emergency

28  management agency. During its review, the local emergency

29  management agency shall ensure that the following agencies, at

30  a minimum, are given the opportunity to review the plan:  the

31  Department of Elderly Affairs, the Department of Health, the

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 1  Agency for Health Care Administration, and the Department of

 2  Community Affairs.  Also, appropriate volunteer organizations

 3  must be given the opportunity to review the plan.  The local

 4  emergency management agency shall complete its review within

 5  60 days and either approve the plan or advise the facility of

 6  necessary revisions.

 7         (c)  The number, training, and qualifications of all

 8  personnel having responsibility for the care of residents.

 9  The rules must require adequate staff to provide for the

10  safety of all residents.  Facilities licensed for 17 or more

11  residents are required to maintain an alert staff for 24 hours

12  per day.

13         (d)  All sanitary conditions within the facility and

14  its surroundings which will ensure the health and comfort of

15  residents.  The rules must clearly delineate the

16  responsibilities of the agency's licensure and survey staff,

17  the county health departments, and the local authority having

18  jurisdiction over fire safety and ensure that inspections are

19  not duplicative.  The agency may collect fees for food service

20  inspections conducted by the county health departments and

21  transfer such fees to the Department of Health.

22         (e)  License application and license renewal, transfer

23  of ownership, proper management of resident funds and personal

24  property, surety bonds, resident contracts, refund policies,

25  financial ability to operate, and facility and staff records.

26         (f)  Inspections, complaint investigations,

27  moratoriums, classification of deficiencies, levying and

28  enforcement of penalties, and use of income from fees and

29  fines.

30         (g)  The enforcement of the resident bill of rights

31  specified in s. 429.28 s. 400.428.

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 1         (h)  The care and maintenance of residents, which must

 2  include, but is not limited to:

 3         1.  The supervision of residents;

 4         2.  The provision of personal services;

 5         3.  The provision of, or arrangement for, social and

 6  leisure activities;

 7         4.  The arrangement for appointments and transportation

 8  to appropriate medical, dental, nursing, or mental health

 9  services, as needed by residents;

10         5.  The management of medication;

11         6.  The nutritional needs of residents;

12         7.  Resident records; and

13         8.  Internal risk management and quality assurance.

14         (i)  Facilities holding a limited nursing, extended

15  congregate care, or limited mental health license.

16         (j)  The establishment of specific criteria to define

17  appropriateness of resident admission and continued residency

18  in a facility holding a standard, limited nursing, extended

19  congregate care, and limited mental health license.

20         (k)  The use of physical or chemical restraints.  The

21  use of physical restraints is limited to half-bed rails as

22  prescribed and documented by the resident's physician with the

23  consent of the resident or, if applicable, the resident's

24  representative or designee or the resident's surrogate,

25  guardian, or attorney in fact.  The use of chemical restraints

26  is limited to prescribed dosages of medications authorized by

27  the resident's physician and must be consistent with the

28  resident's diagnosis. Residents who are receiving medications

29  that can serve as chemical restraints must be evaluated by

30  their physician at least annually to assess:

31         1.  The continued need for the medication.

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 1         2.  The level of the medication in the resident's

 2  blood.

 3         3.  The need for adjustments in the prescription.

 4         (l)  The establishment of specific policies and

 5  procedures on resident elopement. Facilities shall conduct a

 6  minimum of two resident elopement drills each year. All

 7  administrators and direct care staff shall participate in the

 8  drills. Facilities shall document the drills.

 9         (2)  In adopting any rules pursuant to this part, the

10  department, in conjunction with the agency, shall make

11  distinct standards for facilities based upon facility size;

12  the types of care provided; the physical and mental

13  capabilities and needs of residents; the type, frequency, and

14  amount of services and care offered; and the staffing

15  characteristics of the facility. Rules developed pursuant to

16  this section shall not restrict the use of shared staffing and

17  shared programming in facilities that are part of retirement

18  communities that provide multiple levels of care and otherwise

19  meet the requirements of law and rule.  Except for uniform

20  firesafety standards, the department shall adopt by rule

21  separate and distinct standards for facilities with 16 or

22  fewer beds and for facilities with 17 or more beds.  The

23  standards for facilities with 16 or fewer beds shall be

24  appropriate for a noninstitutional residential environment,

25  provided that the structure is no more than two stories in

26  height and all persons who cannot exit the facility unassisted

27  in an emergency reside on the first floor.  The department, in

28  conjunction with the agency, may make other distinctions among

29  types of facilities as necessary to enforce the provisions of

30  this part. Where appropriate, the agency shall offer alternate

31  solutions for complying with established standards, based on

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 1  distinctions made by the department and the agency relative to

 2  the physical characteristics of facilities and the types of

 3  care offered therein.

 4         (3)  The department shall submit a copy of proposed

 5  rules to the Speaker of the House of Representatives, the

 6  President of the Senate, and appropriate committees of

 7  substance for review and comment prior to the promulgation

 8  thereof.

 9         (a)  Rules promulgated by the department shall

10  encourage the development of homelike facilities which promote

11  the dignity, individuality, personal strengths, and

12  decisionmaking ability of residents.

13         (b)  The agency, in consultation with the department,

14  may waive rules promulgated pursuant to this part in order to

15  demonstrate and evaluate innovative or cost-effective

16  congregate care alternatives which enable individuals to age

17  in place.  Such waivers may be granted only in instances where

18  there is reasonable assurance that the health, safety, or

19  welfare of residents will not be endangered.  To apply for a

20  waiver, the licensee shall submit to the agency a written

21  description of the concept to be demonstrated, including

22  goals, objectives, and anticipated benefits; the number and

23  types of residents who will be affected, if applicable; a

24  brief description of how the demonstration will be evaluated;

25  and any other information deemed appropriate by the agency.

26  Any facility granted a waiver shall submit a report of

27  findings to the agency and the department within 12 months.

28  At such time, the agency may renew or revoke the waiver or

29  pursue any regulatory or statutory changes necessary to allow

30  other facilities to adopt the same practices. The department

31  may by rule clarify terms and establish waiver application

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 1  procedures, criteria for reviewing waiver proposals, and

 2  procedures for reporting findings, as necessary to implement

 3  this subsection.

 4         (4)  The agency may use an abbreviated biennial

 5  standard licensure inspection that consists of a review of key

 6  quality-of-care standards in lieu of a full inspection in

 7  facilities which have a good record of past performance.

 8  However, a full inspection shall be conducted in facilities

 9  which have had a history of class I or class II violations,

10  uncorrected class III violations, confirmed ombudsman council

11  complaints, or confirmed licensure complaints, within the

12  previous licensure period immediately preceding the inspection

13  or when a potentially serious problem is identified during the

14  abbreviated inspection.  The agency, in consultation with the

15  department, shall develop the key quality-of-care standards

16  with input from the State Long-Term Care Ombudsman Council and

17  representatives of provider groups for incorporation into its

18  rules. The department, in consultation with the agency, shall

19  report annually to the Legislature concerning its

20  implementation of this subsection. The report shall include,

21  at a minimum, the key quality-of-care standards which have

22  been developed; the number of facilities identified as being

23  eligible for the abbreviated inspection; the number of

24  facilities which have received the abbreviated inspection and,

25  of those, the number that were converted to full inspection;

26  the number and type of subsequent complaints received by the

27  agency or department on facilities which have had abbreviated

28  inspections; any recommendations for modification to this

29  subsection; any plans by the agency to modify its

30  implementation of this subsection; and any other information

31  which the department believes should be reported.

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 1         (5)  A fee shall be charged by the department to any

 2  person requesting a copy of this part or rules promulgated

 3  under this part.  Such fees shall not exceed the actual cost

 4  of duplication and postage.

 5         Section 56.  Section 400.442, Florida Statutes, is

 6  renumbered as section 429.42, Florida Statutes, and amended to

 7  read:

 8         429.42 400.442  Pharmacy and dietary services.--

 9         (1)  Any assisted living facility in which the agency

10  has documented a class I or class II deficiency or uncorrected

11  class III deficiencies regarding medicinal drugs or

12  over-the-counter preparations, including their storage, use,

13  delivery, or administration, or dietary services, or both,

14  during a biennial survey or a monitoring visit or an

15  investigation in response to a complaint, shall, in addition

16  to or as an alternative to any penalties imposed under s.

17  429.19 s. 400.419, be required to employ the consultant

18  services of a licensed pharmacist, a licensed registered

19  nurse, or a registered or licensed dietitian, as applicable.

20  The consultant shall, at a minimum, provide onsite quarterly

21  consultation until the inspection team from the agency

22  determines that such consultation services are no longer

23  required.

24         (2)  A corrective action plan for deficiencies related

25  to assistance with the self-administration of medication or

26  the administration of medication must be developed and

27  implemented by the facility within 48 hours after notification

28  of such deficiency, or sooner if the deficiency is determined

29  by the agency to be life-threatening.

30         (3)  The agency shall employ at least two pharmacists

31  licensed pursuant to chapter 465 among its personnel who

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 1  biennially inspect assisted living facilities licensed under

 2  this part, to participate in biennial inspections or consult

 3  with the agency regarding deficiencies relating to medicinal

 4  drugs or over-the-counter preparations.

 5         (4)  The department may by rule establish procedures

 6  and specify documentation as necessary to implement this

 7  section.

 8         Section 57.  Section 400.444, Florida Statutes, is

 9  renumbered as section 429.44, Florida Statutes, and amended to

10  read:

11         429.44 400.444  Construction and renovation;

12  requirements.--

13         (1)  The requirements for the construction and

14  renovation of a facility shall comply with the provisions of

15  chapter 553 which pertain to building construction standards,

16  including plumbing, electrical code, glass, manufactured

17  buildings, accessibility for persons with disabilities, and

18  the state minimum building code and with the provisions of s.

19  633.022, which pertain to uniform firesafety standards.

20         (2)  Upon notification by the local authority having

21  jurisdiction over life-threatening violations which seriously

22  threaten the health, safety, or welfare of a resident of a

23  facility, the agency shall take action as specified in s.

24  429.14 s. 400.414.

25         (3)  The department may adopt rules to establish

26  procedures and specify the documentation necessary to

27  implement this section.

28         Section 58.  Section 400.447, Florida Statutes, is

29  renumbered as section 429.47, Florida Statutes, and amended to

30  read:

31  

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 1         429.47 400.447  Prohibited acts; penalties for

 2  violation.--

 3         (1)  It is unlawful for any person or public body to

 4  offer or advertise to the public, in any way by any medium

 5  whatever, personal services as defined in this act, without

 6  obtaining a valid current license.  It is unlawful for any

 7  holder of a license issued pursuant to the provisions of this

 8  act to advertise or hold out to the public that it holds a

 9  license for a facility other than that for which it actually

10  holds a license.

11         (2)  It is unlawful for any holder of a license issued

12  pursuant to the provisions of this act to withhold from the

13  agency any evidence of financial instability, including, but

14  not limited to, bad checks, delinquent accounts, nonpayment of

15  withholding taxes, unpaid utility expenses, nonpayment for

16  essential services, or adverse court action concerning the

17  financial viability of the facility or any other facility

18  licensed under part II of chapter 400 or under part I III of

19  this chapter which is owned by the licensee.

20         (3)  Any person found guilty of violating subsection

21  (1) or subsection (2) commits a misdemeanor of the second

22  degree, punishable as provided in s. 775.083.  Each day of

23  continuing violation shall be considered a separate offense.

24         (4)  While a facility is under construction, the owner

25  may advertise to the public prior to obtaining a license.

26  Facilities that are certified under chapter 651 shall comply

27  with the advertising provisions of s. 651.095 rather than

28  those provided for in this subsection.

29         (5)  A freestanding facility shall not advertise or

30  imply that any part of it is a nursing home.  For the purpose

31  of this subsection, "freestanding facility" means a facility

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 1  that is not operated in conjunction with a nursing home to

 2  which residents of the facility are given priority when

 3  nursing care is required.  A person who violates this

 4  subsection is subject to fine as specified in s. 429.19 s.

 5  400.419.

 6         (6)  Any facility which is affiliated with any

 7  religious organization or which has a name implying religious

 8  affiliation shall include in its advertising whether or not it

 9  is affiliated with any religious organization and, if so,

10  which organization.

11         (7)  A facility licensed under this part which is not

12  part of a facility authorized under chapter 651 shall include

13  the facility's license number as given by the agency in all

14  advertising.  A company or person owning more than one

15  facility shall include at least one license number per

16  advertisement.  All advertising shall include the term

17  "assisted living facility" before the license number.

18         Section 59.  Section 400.452, Florida Statutes, is

19  renumbered as section 429.52, Florida Statutes, and amended to

20  read:

21         429.52 400.452  Staff training and educational

22  programs; core educational requirement.--

23         (1)  Administrators and other assisted living facility

24  staff must meet minimum training and education requirements

25  established by the Department of Elderly Affairs by rule. This

26  training and education is intended to assist facilities to

27  appropriately respond to the needs of residents, to maintain

28  resident care and facility standards, and to meet licensure

29  requirements.

30         (2)  The department shall establish a competency test

31  and a minimum required score to indicate successful completion

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 1  of the training and educational requirements. The competency

 2  test must be developed by the department in conjunction with

 3  the agency and providers. The required training and education

 4  must cover at least the following topics:

 5         (a)  State law and rules relating to assisted living

 6  facilities.

 7         (b)  Resident rights and identifying and reporting

 8  abuse, neglect, and exploitation.

 9         (c)  Special needs of elderly persons, persons with

10  mental illness, and persons with developmental disabilities

11  and how to meet those needs.

12         (d)  Nutrition and food service, including acceptable

13  sanitation practices for preparing, storing, and serving food.

14         (e)  Medication management, recordkeeping, and proper

15  techniques for assisting residents with self-administered

16  medication.

17         (f)  Firesafety requirements, including fire evacuation

18  drill procedures and other emergency procedures.

19         (g)  Care of persons with Alzheimer's disease and

20  related disorders.

21         (3)  Effective January 1, 2004, a new facility

22  administrator must complete the required training and

23  education, including the competency test, within a reasonable

24  time after being employed as an administrator, as determined

25  by the department.  Failure to do so is a violation of this

26  part and subjects the violator to an administrative fine as

27  prescribed in s. 429.19 s. 400.419. Administrators licensed in

28  accordance with chapter 468, part II, are exempt from this

29  requirement. Other licensed professionals may be exempted, as

30  determined by the department by rule.

31  

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 1         (4)  Administrators are required to participate in

 2  continuing education for a minimum of 12 contact hours every 2

 3  years.

 4         (5)  Staff involved with the management of medications

 5  and assisting with the self-administration of medications

 6  under s. 429.256 s. 400.4256 must complete a minimum of 4

 7  additional hours of training provided by a registered nurse,

 8  licensed pharmacist, or department staff. The department shall

 9  establish by rule the minimum requirements of this additional

10  training.

11         (6)  Other facility staff shall participate in training

12  relevant to their job duties as specified by rule of the

13  department.

14         (7)  If the department or the agency determines that

15  there are problems in a facility that could be reduced through

16  specific staff training or education beyond that already

17  required under this section, the department or the agency may

18  require, and provide, or cause to be provided, the training or

19  education of any personal care staff in the facility.

20         (8)  The department shall adopt rules related to these

21  training requirements, the competency test, necessary

22  procedures, and competency test fees.

23         Section 60.  Subsections (1), (10), and (18) of section

24  400.462, Florida Statutes, are amended to read:

25         400.462  Definitions.--As used in this part, the term:

26         (1)  "Administrator" means a direct employee, as

27  defined in subsection (9). The administrator must be a

28  licensed physician, physician assistant, or registered nurse

29  licensed to practice in this state or an individual having at

30  least 1 year of supervisory or administrative experience in

31  home health care or in a facility licensed under chapter 395,

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 1  or under part II or part III of this chapter, or under part I

 2  of chapter 429. An administrator may manage a maximum of five

 3  licensed home health agencies located within one agency

 4  service district or within an immediately contiguous county.

 5  If the home health agency is licensed under this chapter and

 6  is part of a retirement community that provides multiple

 7  levels of care, an employee of the retirement community may

 8  administer the home health agency and up to a maximum of four

 9  entities licensed under this chapter or chapter 429 that are

10  owned, operated, or managed by the same corporate entity. An

11  administrator shall designate, in writing, for each licensed

12  entity, a qualified alternate administrator to serve during

13  absences.

14         (10)  "Director of nursing" means a registered nurse

15  who is a direct employee, as defined in subsection (9), of the

16  agency and who is a graduate of an approved school of nursing

17  and is licensed in this state; who has at least 1 year of

18  supervisory experience as a registered nurse; and who is

19  responsible for overseeing the professional nursing and home

20  health aid delivery of services of the agency. A director of

21  nursing may be the director of a maximum of five licensed home

22  health agencies operated by a related business entity and

23  located within one agency service district or within an

24  immediately contiguous county. If the home health agency is

25  licensed under this chapter and is part of a retirement

26  community that provides multiple levels of care, an employee

27  of the retirement community may serve as the director of

28  nursing of the home health agency and of up to four entities

29  licensed under this chapter or chapter 429 which are owned,

30  operated, or managed by the same corporate entity.

31  

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 1         (18)  "Nurse registry" means any person that procures,

 2  offers, promises, or attempts to secure health-care-related

 3  contracts for registered nurses, licensed practical nurses,

 4  certified nursing assistants, home health aides, companions,

 5  or homemakers, who are compensated by fees as independent

 6  contractors, including, but not limited to, contracts for the

 7  provision of services to patients and contracts to provide

 8  private duty or staffing services to health care facilities

 9  licensed under chapter 395, or this chapter, or chapter 429 or

10  other business entities.

11         Section 61.  Paragraphs (h), (i), and (n) of subsection

12  (5) of section 400.464, Florida Statutes, are amended to read:

13         400.464  Home health agencies to be licensed;

14  expiration of license; exemptions; unlawful acts; penalties.--

15         (5)  The following are exempt from the licensure

16  requirements of this part:

17         (h)  The delivery of assisted living facility services

18  for which the assisted living facility is licensed under part

19  I III of this chapter 429, to serve its residents in its

20  facility.

21         (i)  The delivery of hospice services for which the

22  hospice is licensed under part IV VI of this chapter, to serve

23  hospice patients admitted to its service.

24         (n)  The delivery of adult family care home services

25  for which the adult family care home is licensed under part II

26  VII of this chapter 429, to serve the residents in its

27  facility.

28         Section 62.  Subsection (2) of section 400.497, Florida

29  Statutes, is amended to read:

30         400.497  Rules establishing minimum standards.--The

31  agency shall adopt, publish, and enforce rules to implement

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 1  this part, including, as applicable, ss. 400.506 and 400.509,

 2  which must provide reasonable and fair minimum standards

 3  relating to:

 4         (2)  Shared staffing. The agency shall allow shared

 5  staffing if the home health agency is part of a retirement

 6  community that provides multiple levels of care, is located on

 7  one campus, is licensed under this chapter or chapter 429, and

 8  otherwise meets the requirements of law and rule.

 9         Section 63.  Paragraph (c) of subsection (2) of section

10  400.556, Florida Statutes, is amended to read:

11         400.556  Denial, suspension, revocation of license;

12  administrative fines; investigations and inspections.--

13         (2)  Each of the following actions by the owner of an

14  adult day care center or by its operator or employee is a

15  ground for action by the agency against the owner of the

16  center or its operator or employee:

17         (c)  A failure of persons subject to level 2 background

18  screening under s. 429.174(1) s. 400.4174(1) to meet the

19  screening standards of s. 435.04, or the retention by the

20  center of an employee subject to level 1 background screening

21  standards under s. 429.174(2) s. 400.4174(2) who does not meet

22  the screening standards of s. 435.03 and for whom exemptions

23  from disqualification have not been provided by the agency.

24         Section 64.  Paragraph (c) of subsection (2) of section

25  400.5572, Florida Statutes, is amended to read:

26         400.5572  Background screening.--

27         (2)  The owner or administrator of an adult day care

28  center must conduct level 1 background screening as set forth

29  in chapter 435 on all employees hired on or after October 1,

30  1998, who provide basic services or supportive and optional

31  

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 1  services to the participants. Such persons satisfy this

 2  requirement if:

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

 4  a corporation or business entity or related corporation or

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

 6  facility or agency licensed under this chapter or chapter 429,

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

 8  corporation or business entity as a condition of initial or

 9  continued employment.

10         Section 65.  Subsection (5) of section 400.601, Florida

11  Statutes, is amended to read:

12         400.601  Definitions.--As used in this part, the term:

13         (5)  "Hospice residential unit" means a homelike living

14  facility, other than a facility licensed under other parts of

15  this chapter, or under chapter 395, or under chapter 429, that

16  is operated by a hospice for the benefit of its patients and

17  is considered by a patient who lives there to be his or her

18  primary residence.

19         Section 66.  Paragraph (c) of subsection (2) of section

20  400.618, Florida Statutes, is amended to read:

21         400.618  Definitions.--As used in this part, the term:

22         (2)  "Adult family-care home" means a full-time,

23  family-type living arrangement, in a private home, under which

24  a person who owns or rents the home provides room, board, and

25  personal care, on a 24-hour basis, for no more than five

26  disabled adults or frail elders who are not relatives. The

27  following family-type living arrangements are not required to

28  be licensed as an adult family-care home:

29         (c)  An establishment that is licensed as an assisted

30  living facility under chapter 429 part III.

31  

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 1         Section 67.  Paragraph (f) of subsection (1) of section

 2  400.628, Florida Statutes, is amended to read:

 3         400.628  Residents' bill of rights.--

 4         (1)  A resident of an adult family-care home may not be

 5  deprived of any civil or legal rights, benefits, or privileges

 6  guaranteed by law, the State Constitution, or the Constitution

 7  of the United States solely by reason of status as a resident

 8  of the home. Each resident has the right to:

 9         (f)  Manage the resident's own financial affairs unless

10  the resident or the resident's guardian authorizes the

11  provider to provide safekeeping for funds in accordance with

12  procedures equivalent to those provided in s. 429.27 s.

13  400.427.

14         Section 68.  Paragraphs (c), (d), (e), and (f) of

15  subsection (5) of section 400.93, Florida Statutes, are

16  amended to read:

17         400.93  Licensure required; exemptions; unlawful acts;

18  penalties.--

19         (5)  The following are exempt from home medical

20  equipment provider licensure, unless they have a separate

21  company, corporation, or division that is in the business of

22  providing home medical equipment and services for sale or rent

23  to consumers at their regular or temporary place of residence

24  pursuant to the provisions of this part:

25         (c)  Assisted living facilities licensed under chapter

26  429 part III, when serving their residents.

27         (d)  Home health agencies licensed under part III IV.

28         (e)  Hospices licensed under part IV VI.

29         (f)  Intermediate care facilities, homes for special

30  services, and transitional living facilities licensed under

31  part V VIII.

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 1         Section 69.  Paragraph (c) of subsection (10) of

 2  section 400.962, Florida Statutes, is amended to read:

 3         400.962  License required; license application.--

 4         (10)

 5         (c)  Proof of compliance with the level 2 background

 6  screening requirements of chapter 435 which has been submitted

 7  within the previous 5 years in compliance with any other

 8  licensure requirements under this chapter or chapter 429

 9  satisfies the requirements of paragraph (a). Proof of

10  compliance with background screening which has been submitted

11  within the previous 5 years to fulfill the requirements of the

12  Financial Services Commission and the Office of Insurance

13  Regulation under chapter 651 as part of an application for a

14  certificate of authority to operate a continuing care

15  retirement community satisfies the requirements for the

16  Department of Law Enforcement and Federal Bureau of

17  Investigation background checks.

18         Section 70.  Paragraph (b) of subsection (1) of section

19  400.980, Florida Statutes, is amended to read:

20         400.980  Health care services pools.--

21         (1)  As used in this section, the term:

22         (b)  "Health care services pool" means any person,

23  firm, corporation, partnership, or association engaged for

24  hire in the business of providing temporary employment in

25  health care facilities, residential facilities, and agencies

26  for licensed, certified, or trained health care personnel

27  including, without limitation, nursing assistants, nurses'

28  aides, and orderlies. However, the term does not include

29  nursing registries, a facility licensed under this chapter or

30  chapter 429 400, a health care services pool established

31  within a health care facility to provide services only within

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 1  the confines of such facility, or any individual contractor

 2  directly providing temporary services to a health care

 3  facility without use or benefit of a contracting agent.

 4         Section 71.  Paragraphs (a), (b), (c), and (d) of

 5  subsection (4) of section 400.9905, Florida Statutes, are

 6  amended to read:

 7         400.9905  Definitions.--

 8         (4)  "Clinic" means an entity at which health care

 9  services are provided to individuals and which tenders charges

10  for reimbursement for such services, including a mobile clinic

11  and a portable equipment provider. For purposes of this part,

12  the term does not include and the licensure requirements of

13  this part do not apply to:

14         (a)  Entities licensed or registered by the state under

15  chapter 395; or entities licensed or registered by the state

16  and providing only health care services within the scope of

17  services authorized under their respective licenses granted

18  under ss. 383.30-383.335, chapter 390, chapter 394, chapter

19  397, this chapter except part X XIII, chapter 429, chapter

20  463, chapter 465, chapter 466, chapter 478, part I of chapter

21  483, chapter 484, or chapter 651; end-stage renal disease

22  providers authorized under 42 C.F.R. part 405, subpart U; or

23  providers certified under 42 C.F.R. part 485, subpart B or

24  subpart H; or any entity that provides neonatal or pediatric

25  hospital-based health care services by licensed practitioners

26  solely within a hospital licensed under chapter 395.

27         (b)  Entities that own, directly or indirectly,

28  entities licensed or registered by the state pursuant to

29  chapter 395; or entities that own, directly or indirectly,

30  entities licensed or registered by the state and providing

31  only health care services within the scope of services

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 1  authorized pursuant to their respective licenses granted under

 2  ss. 383.30-383.335, chapter 390, chapter 394, chapter 397,

 3  this chapter except part X XIII, chapter 429, chapter 463,

 4  chapter 465, chapter 466, chapter 478, part I of chapter 483,

 5  chapter 484, chapter 651; end-stage renal disease providers

 6  authorized under 42 C.F.R. part 405, subpart U; or providers

 7  certified under 42 C.F.R. part 485, subpart B or subpart H; or

 8  any entity that provides neonatal or pediatric hospital-based

 9  health care services by licensed practitioners solely within a

10  hospital licensed under chapter 395.

11         (c)  Entities that are owned, directly or indirectly,

12  by an entity licensed or registered by the state pursuant to

13  chapter 395; or entities that are owned, directly or

14  indirectly, by an entity licensed or registered by the state

15  and providing only health care services within the scope of

16  services authorized pursuant to their respective licenses

17  granted under ss. 383.30-383.335, chapter 390, chapter 394,

18  chapter 397, this chapter except part X XIII, chapter 429,

19  chapter 463, chapter 465, chapter 466, chapter 478, part I of

20  chapter 483, chapter 484, or chapter 651; end-stage renal

21  disease providers authorized under 42 C.F.R. part 405, subpart

22  U; or providers certified under 42 C.F.R. part 485, subpart B

23  or subpart H; or any entity that provides neonatal or

24  pediatric hospital-based health care services by licensed

25  practitioners solely within a hospital under chapter 395.

26         (d)  Entities that are under common ownership, directly

27  or indirectly, with an entity licensed or registered by the

28  state pursuant to chapter 395; or entities that are under

29  common ownership, directly or indirectly, with an entity

30  licensed or registered by the state and providing only health

31  care services within the scope of services authorized pursuant

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 1  to their respective licenses granted under ss. 383.30-383.335,

 2  chapter 390, chapter 394, chapter 397, this chapter except

 3  part X XIII, chapter 429, chapter 463, chapter 465, chapter

 4  466, chapter 478, part I of chapter 483, chapter 484, or

 5  chapter 651; end-stage renal disease providers authorized

 6  under 42 C.F.R. part 405, subpart U; or providers certified

 7  under 42 C.F.R. part 485, subpart B or subpart H; or any

 8  entity that provides neonatal or pediatric hospital-based

 9  health care services by licensed practitioners solely within a

10  hospital licensed under chapter 395.

11         Section 72.  Subsection (12) of section 401.23, Florida

12  Statutes, is amended to read:

13         401.23  Definitions.--As used in this part, the term:

14         (12)  "Interfacility transfer" means the transportation

15  by ambulance of a patient between two facilities licensed

16  under chapter 393, chapter 395, or chapter 400, or chapter

17  429, pursuant to this part.

18         Section 73.  Paragraph (b) of subsection (2) of section

19  402.164, Florida Statutes, is amended to read:

20         402.164  Legislative intent; definitions.--

21         (2)  As used in ss. 402.164-402.167, the term:

22         (b)  "Client" means a client as defined in s. 393.063,

23  s. 394.67, s. 397.311, or s. 400.960, a forensic client or

24  client as defined in s. 916.106, a child or youth as defined

25  in s. 39.01, a child as defined in s. 827.01, a family as

26  defined in s. 414.0252, a participant as defined in s.

27  400.551, a resident as defined in s. 429.02 s. 400.402, a

28  Medicaid recipient or recipient as defined in s. 409.901, a

29  child receiving child care as defined in s. 402.302, a

30  disabled adult as defined in s. 410.032 or s. 410.603, or a

31  

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 1  victim as defined in s. 39.01 or s. 415.102 as each definition

 2  applies within its respective chapter.

 3         Section 74.  Subsection (10) of section 408.032,

 4  Florida Statutes, is amended to read:

 5         408.032  Definitions relating to Health Facility and

 6  Services Development Act.--As used in ss. 408.031-408.045, the

 7  term:

 8         (10)  "Hospice" or "hospice program" means a hospice as

 9  defined in part IV VI of chapter 400.

10         Section 75.  Paragraph (b) of subsection (2) of section

11  408.033, Florida Statutes, is amended to read:

12         408.033  Local and state health planning.--

13         (2)  FUNDING.--

14         (b)1.  A hospital licensed under chapter 395, a nursing

15  home licensed under chapter 400, and an assisted living

16  facility licensed under chapter 429 400 shall be assessed an

17  annual fee based on number of beds.

18         2.  All other facilities and organizations listed in

19  paragraph (a) shall each be assessed an annual fee of $150.

20         3.  Facilities operated by the Department of Children

21  and Family Services, the Department of Health, or the

22  Department of Corrections and any hospital which meets the

23  definition of rural hospital pursuant to s. 395.602 are exempt

24  from the assessment required in this subsection.

25         Section 76.  Subsection (2) of section 408.034, Florida

26  Statutes, is amended to read:

27         408.034  Duties and responsibilities of agency;

28  rules.--

29         (2)  In the exercise of its authority to issue licenses

30  to health care facilities and health service providers, as

31  provided under chapters 393 and, 395, and parts II and IV VI

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 1  of chapter 400, the agency may not issue a license to any

 2  health care facility or health service provider that fails to

 3  receive a certificate of need or an exemption for the licensed

 4  facility or service.

 5         Section 77.  Subsections (28) and (29) of section

 6  408.07, Florida Statutes, are amended to read:

 7         408.07  Definitions.--As used in this chapter, with the

 8  exception of ss. 408.031-408.045, the term:

 9         (28)  "Home health agency" means an organization

10  licensed under part III IV of chapter 400.

11         (29)  "Hospice" means an organization licensed under

12  part IV VI of chapter 400.

13         Section 78.  Subsection (3) of section 408.831, Florida

14  Statutes, is amended to read:

15         408.831  Denial, suspension, or revocation of a

16  license, registration, certificate, or application.--

17         (3)  This section provides standards of enforcement

18  applicable to all entities licensed or regulated by the Agency

19  for Health Care Administration. This section controls over any

20  conflicting provisions of chapters 39, 381, 383, 390, 391,

21  393, 394, 395, 400, 408, 429, 468, 483, and 641 or rules

22  adopted pursuant to those chapters.

23         Section 79.  Subsection (2) of section 409.212, Florida

24  Statutes, is amended to read:

25         409.212  Optional supplementation.--

26         (2)  The base rate of payment for optional state

27  supplementation shall be established by the department within

28  funds appropriated. Additional amounts may be provided for

29  mental health residents in facilities designed to provide

30  limited mental health services as provided for in s. 429.075

31  

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 1  s. 400.4075. The base rate of payment does not include the

 2  personal needs allowance.

 3         Section 80.  Subsection (4) of section 409.905, Florida

 4  Statutes, is amended to read:

 5         409.905  Mandatory Medicaid services.--The agency may

 6  make payments for the following services, which are required

 7  of the state by Title XIX of the Social Security Act,

 8  furnished by Medicaid providers to recipients who are

 9  determined to be eligible on the dates on which the services

10  were provided. Any service under this section shall be

11  provided only when medically necessary and in accordance with

12  state and federal law. Mandatory services rendered by

13  providers in mobile units to Medicaid recipients may be

14  restricted by the agency. Nothing in this section shall be

15  construed to prevent or limit the agency from adjusting fees,

16  reimbursement rates, lengths of stay, number of visits, number

17  of services, or any other adjustments necessary to comply with

18  the availability of moneys and any limitations or directions

19  provided for in the General Appropriations Act or chapter 216.

20         (4)  HOME HEALTH CARE SERVICES.--The agency shall pay

21  for nursing and home health aide services, supplies,

22  appliances, and durable medical equipment, necessary to assist

23  a recipient living at home. An entity that provides services

24  pursuant to this subsection shall be licensed under part III

25  IV of chapter 400. These services, equipment, and supplies, or

26  reimbursement therefor, may be limited as provided in the

27  General Appropriations Act and do not include services,

28  equipment, or supplies provided to a person residing in a

29  hospital or nursing facility.

30         (a)  In providing home health care services, the agency

31  may require prior authorization of care based on diagnosis.

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 1         (b)  The agency shall implement a comprehensive

 2  utilization management program that requires prior

 3  authorization of all private duty nursing services, an

 4  individualized treatment plan that includes information about

 5  medication and treatment orders, treatment goals, methods of

 6  care to be used, and plans for care coordination by nurses and

 7  other health professionals. The utilization management program

 8  shall also include a process for periodically reviewing the

 9  ongoing use of private duty nursing services. The assessment

10  of need shall be based on a child's condition, family support

11  and care supplements, a family's ability to provide care, and

12  a family's and child's schedule regarding work, school, sleep,

13  and care for other family dependents. When implemented, the

14  private duty nursing utilization management program shall

15  replace the current authorization program used by the Agency

16  for Health Care Administration and the Children's Medical

17  Services program of the Department of Health. The agency may

18  competitively bid on a contract to select a qualified

19  organization to provide utilization management of private duty

20  nursing services. The agency is authorized to seek federal

21  waivers to implement this initiative.

22         Section 81.  Subsection (14) of section 409.906,

23  Florida Statutes, is amended to read:

24         409.906  Optional Medicaid services.--Subject to

25  specific appropriations, the agency may make payments for

26  services which are optional to the state under Title XIX of

27  the Social Security Act and are furnished by Medicaid

28  providers to recipients who are determined to be eligible on

29  the dates on which the services were provided. Any optional

30  service that is provided shall be provided only when medically

31  necessary and in accordance with state and federal law.

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 1  Optional services rendered by providers in mobile units to

 2  Medicaid recipients may be restricted or prohibited by the

 3  agency. Nothing in this section shall be construed to prevent

 4  or limit the agency from adjusting fees, reimbursement rates,

 5  lengths of stay, number of visits, or number of services, or

 6  making any other adjustments necessary to comply with the

 7  availability of moneys and any limitations or directions

 8  provided for in the General Appropriations Act or chapter 216.

 9  If necessary to safeguard the state's systems of providing

10  services to elderly and disabled persons and subject to the

11  notice and review provisions of s. 216.177, the Governor may

12  direct the Agency for Health Care Administration to amend the

13  Medicaid state plan to delete the optional Medicaid service

14  known as "Intermediate Care Facilities for the Developmentally

15  Disabled." Optional services may include:

16         (14)  HOSPICE CARE SERVICES.--The agency may pay for

17  all reasonable and necessary services for the palliation or

18  management of a recipient's terminal illness, if the services

19  are provided by a hospice that is licensed under part IV VI of

20  chapter 400 and meets Medicare certification requirements.

21         Section 82.  Subsection (7) and paragraph (a) of

22  subsection (8) of section 409.907, Florida Statutes, are

23  amended to read:

24         409.907  Medicaid provider agreements.--The agency may

25  make payments for medical assistance and related services

26  rendered to Medicaid recipients only to an individual or

27  entity who has a provider agreement in effect with the agency,

28  who is performing services or supplying goods in accordance

29  with federal, state, and local law, and who agrees that no

30  person shall, on the grounds of handicap, race, color, or

31  national origin, or for any other reason, be subjected to

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 1  discrimination under any program or activity for which the

 2  provider receives payment from the agency.

 3         (7)  The agency may require, as a condition of

 4  participating in the Medicaid program and before entering into

 5  the provider agreement, that the provider submit information,

 6  in an initial and any required renewal applications,

 7  concerning the professional, business, and personal background

 8  of the provider and permit an onsite inspection of the

 9  provider's service location by agency staff or other personnel

10  designated by the agency to perform this function. The agency

11  shall perform a random onsite inspection, within 60 days after

12  receipt of a fully complete new provider's application, of the

13  provider's service location prior to making its first payment

14  to the provider for Medicaid services to determine the

15  applicant's ability to provide the services that the applicant

16  is proposing to provide for Medicaid reimbursement. The agency

17  is not required to perform an onsite inspection of a provider

18  or program that is licensed by the agency, that provides

19  services under waiver programs for home and community-based

20  services, or that is licensed as a medical foster home by the

21  Department of Children and Family Services. As a continuing

22  condition of participation in the Medicaid program, a provider

23  shall immediately notify the agency of any current or pending

24  bankruptcy filing. Before entering into the provider

25  agreement, or as a condition of continuing participation in

26  the Medicaid program, the agency may also require that

27  Medicaid providers reimbursed on a fee-for-services basis or

28  fee schedule basis which is not cost-based, post a surety bond

29  not to exceed $50,000 or the total amount billed by the

30  provider to the program during the current or most recent

31  calendar year, whichever is greater. For new providers, the

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 1  amount of the surety bond shall be determined by the agency

 2  based on the provider's estimate of its first year's billing.

 3  If the provider's billing during the first year exceeds the

 4  bond amount, the agency may require the provider to acquire an

 5  additional bond equal to the actual billing level of the

 6  provider. A provider's bond shall not exceed $50,000 if a

 7  physician or group of physicians licensed under chapter 458,

 8  chapter 459, or chapter 460 has a 50 percent or greater

 9  ownership interest in the provider or if the provider is an

10  assisted living facility licensed under part III of chapter

11  429 400. The bonds permitted by this section are in addition

12  to the bonds referenced in s. 400.179(5)(d). If the provider

13  is a corporation, partnership, association, or other entity,

14  the agency may require the provider to submit information

15  concerning the background of that entity and of any principal

16  of the entity, including any partner or shareholder having an

17  ownership interest in the entity equal to 5 percent or

18  greater, and any treating provider who participates in or

19  intends to participate in Medicaid through the entity. The

20  information must include:

21         (a)  Proof of holding a valid license or operating

22  certificate, as applicable, if required by the state or local

23  jurisdiction in which the provider is located or if required

24  by the Federal Government.

25         (b)  Information concerning any prior violation, fine,

26  suspension, termination, or other administrative action taken

27  under the Medicaid laws, rules, or regulations of this state

28  or of any other state or the Federal Government; any prior

29  violation of the laws, rules, or regulations relating to the

30  Medicare program; any prior violation of the rules or

31  regulations of any other public or private insurer; and any

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 1  prior violation of the laws, rules, or regulations of any

 2  regulatory body of this or any other state.

 3         (c)  Full and accurate disclosure of any financial or

 4  ownership interest that the provider, or any principal,

 5  partner, or major shareholder thereof, may hold in any other

 6  Medicaid provider or health care related entity or any other

 7  entity that is licensed by the state to provide health or

 8  residential care and treatment to persons.

 9         (d)  If a group provider, identification of all members

10  of the group and attestation that all members of the group are

11  enrolled in or have applied to enroll in the Medicaid program.

12         (8)(a)  Each provider, or each principal of the

13  provider if the provider is a corporation, partnership,

14  association, or other entity, seeking to participate in the

15  Medicaid program must submit a complete set of his or her

16  fingerprints to the agency for the purpose of conducting a

17  criminal history record check.  Principals of the provider

18  include any officer, director, billing agent, managing

19  employee, or affiliated person, or any partner or shareholder

20  who has an ownership interest equal to 5 percent or more in

21  the provider. However, a director of a not-for-profit

22  corporation or organization is not a principal for purposes of

23  a background investigation as required by this section if the

24  director: serves solely in a voluntary capacity for the

25  corporation or organization, does not regularly take part in

26  the day-to-day operational decisions of the corporation or

27  organization, receives no remuneration from the not-for-profit

28  corporation or organization for his or her service on the

29  board of directors, has no financial interest in the

30  not-for-profit corporation or organization, and has no family

31  members with a financial interest in the not-for-profit

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 1  corporation or organization; and if the director submits an

 2  affidavit, under penalty of perjury, to this effect to the

 3  agency and the not-for-profit corporation or organization

 4  submits an affidavit, under penalty of perjury, to this effect

 5  to the agency as part of the corporation's or organization's

 6  Medicaid provider agreement application. Notwithstanding the

 7  above, the agency may require a background check for any

 8  person reasonably suspected by the agency to have been

 9  convicted of a crime. This subsection shall not apply to:

10         1.  A hospital licensed under chapter 395;

11         2.  A nursing home licensed under chapter 400;

12         3.  A hospice licensed under chapter 400;

13         4.  An assisted living facility licensed under chapter

14  429; 400.

15         5.  A unit of local government, except that

16  requirements of this subsection apply to nongovernmental

17  providers and entities when contracting with the local

18  government to provide Medicaid services. The actual cost of

19  the state and national criminal history record checks must be

20  borne by the nongovernmental provider or entity; or

21         6.  Any business that derives more than 50 percent of

22  its revenue from the sale of goods to the final consumer, and

23  the business or its controlling parent either is required to

24  file a form 10-K or other similar statement with the

25  Securities and Exchange Commission or has a net worth of $50

26  million or more.

27         Section 83.  Paragraph (c) of subsection (5) of section

28  409.912, Florida Statutes, is amended to read:

29         409.912  Cost-effective purchasing of health care.--The

30  agency shall purchase goods and services for Medicaid

31  recipients in the most cost-effective manner consistent with

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 1  the delivery of quality medical care. To ensure that medical

 2  services are effectively utilized, the agency may, in any

 3  case, require a confirmation or second physician's opinion of

 4  the correct diagnosis for purposes of authorizing future

 5  services under the Medicaid program. This section does not

 6  restrict access to emergency services or poststabilization

 7  care services as defined in 42 C.F.R. part 438.114. Such

 8  confirmation or second opinion shall be rendered in a manner

 9  approved by the agency. The agency shall maximize the use of

10  prepaid per capita and prepaid aggregate fixed-sum basis

11  services when appropriate and other alternative service

12  delivery and reimbursement methodologies, including

13  competitive bidding pursuant to s. 287.057, designed to

14  facilitate the cost-effective purchase of a case-managed

15  continuum of care. The agency shall also require providers to

16  minimize the exposure of recipients to the need for acute

17  inpatient, custodial, and other institutional care and the

18  inappropriate or unnecessary use of high-cost services. The

19  agency shall contract with a vendor to monitor and evaluate

20  the clinical practice patterns of providers in order to

21  identify trends that are outside the normal practice patterns

22  of a provider's professional peers or the national guidelines

23  of a provider's professional association. The vendor must be

24  able to provide information and counseling to a provider whose

25  practice patterns are outside the norms, in consultation with

26  the agency, to improve patient care and reduce inappropriate

27  utilization. The agency may mandate prior authorization, drug

28  therapy management, or disease management participation for

29  certain populations of Medicaid beneficiaries, certain drug

30  classes, or particular drugs to prevent fraud, abuse, overuse,

31  and possible dangerous drug interactions. The Pharmaceutical

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 1  and Therapeutics Committee shall make recommendations to the

 2  agency on drugs for which prior authorization is required. The

 3  agency shall inform the Pharmaceutical and Therapeutics

 4  Committee of its decisions regarding drugs subject to prior

 5  authorization. The agency is authorized to limit the entities

 6  it contracts with or enrolls as Medicaid providers by

 7  developing a provider network through provider credentialing.

 8  The agency may competitively bid single-source-provider

 9  contracts if procurement of goods or services results in

10  demonstrated cost savings to the state without limiting access

11  to care. The agency may limit its network based on the

12  assessment of beneficiary access to care, provider

13  availability, provider quality standards, time and distance

14  standards for access to care, the cultural competence of the

15  provider network, demographic characteristics of Medicaid

16  beneficiaries, practice and provider-to-beneficiary standards,

17  appointment wait times, beneficiary use of services, provider

18  turnover, provider profiling, provider licensure history,

19  previous program integrity investigations and findings, peer

20  review, provider Medicaid policy and billing compliance

21  records, clinical and medical record audits, and other

22  factors. Providers shall not be entitled to enrollment in the

23  Medicaid provider network. The agency shall determine

24  instances in which allowing Medicaid beneficiaries to purchase

25  durable medical equipment and other goods is less expensive to

26  the Medicaid program than long-term rental of the equipment or

27  goods. The agency may establish rules to facilitate purchases

28  in lieu of long-term rentals in order to protect against fraud

29  and abuse in the Medicaid program as defined in s. 409.913.

30  The agency may seek federal waivers necessary to administer

31  these policies.

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 1         (5)  By December 1, 2005, the Agency for Health Care

 2  Administration, in partnership with the Department of Elderly

 3  Affairs, shall create an integrated, fixed-payment delivery

 4  system for Medicaid recipients who are 60 years of age or

 5  older. The Agency for Health Care Administration shall

 6  implement the integrated system initially on a pilot basis in

 7  two areas of the state. In one of the areas enrollment shall

 8  be on a voluntary basis. The program must transfer all

 9  Medicaid services for eligible elderly individuals who choose

10  to participate into an integrated-care management model

11  designed to serve Medicaid recipients in the community. The

12  program must combine all funding for Medicaid services

13  provided to individuals 60 years of age or older into the

14  integrated system, including funds for Medicaid home and

15  community-based waiver services; all Medicaid services

16  authorized in ss. 409.905 and 409.906, excluding funds for

17  Medicaid nursing home services unless the agency is able to

18  demonstrate how the integration of the funds will improve

19  coordinated care for these services in a less costly manner;

20  and Medicare coinsurance and deductibles for persons dually

21  eligible for Medicaid and Medicare as prescribed in s.

22  409.908(13).

23         (c)  The agency must ensure that the

24  capitation-rate-setting methodology for the integrated system

25  is actuarially sound and reflects the intent to provide

26  quality care in the least restrictive setting. The agency must

27  also require integrated-system providers to develop a

28  credentialing system for service providers and to contract

29  with all Gold Seal nursing homes, where feasible, and exclude,

30  where feasible, chronically poor-performing facilities and

31  providers as defined by the agency. The integrated system must

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 1  provide that if the recipient resides in a noncontracted

 2  residential facility licensed under chapter 400 or chapter 429

 3  at the time the integrated system is initiated, the recipient

 4  must be permitted to continue to reside in the noncontracted

 5  facility as long as the recipient desires. The integrated

 6  system must also provide that, in the absence of a contract

 7  between the integrated-system provider and the residential

 8  facility licensed under chapter 400 or chapter 429, current

 9  Medicaid rates must prevail. The agency and the Department of

10  Elderly Affairs must jointly develop procedures to manage the

11  services provided through the integrated system in order to

12  ensure quality and recipient choice.

13         Section 84.  Section 410.031, Florida Statutes, is

14  amended to read:

15         410.031  Legislative intent.--It is the intent of the

16  Legislature to encourage the provision of care for disabled

17  adults in family-type living arrangements in private homes as

18  an alternative to institutional or nursing home care for such

19  persons. The provisions of ss. 410.031-410.036 are intended to

20  be supplemental to the provisions of chapters chapter 400 and

21  429, relating to the licensing and regulation of nursing homes

22  and assisted living facilities, and do not exempt any person

23  who is otherwise subject to regulation under chapter 400 or

24  chapter 429.

25         Section 85.  Section 410.034, Florida Statutes, is

26  amended to read:

27         410.034  Department determination of fitness to provide

28  home care.--In accordance with s. 429.02 s. 400.402, a person

29  caring for an adult who is related to such person by blood or

30  marriage is not subject to the Assisted Living Facilities Act.

31  If, however, the person who plans to provide home care under

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 1  this act is found by the department to be unable to provide

 2  this care, the department shall notify the person wishing to

 3  provide home care of this determination, and the person shall

 4  not be eligible for subsidy payments under ss.

 5  410.031-410.036.

 6         Section 86.  Section 415.1111, Florida Statutes, is

 7  amended to read:

 8         415.1111  Civil actions.--A vulnerable adult who has

 9  been abused, neglected, or exploited as specified in this

10  chapter has a cause of action against any perpetrator and may

11  recover actual and punitive damages for such abuse, neglect,

12  or exploitation.  The action may be brought by the vulnerable

13  adult, or that person's guardian, by a person or organization

14  acting on behalf of the vulnerable adult with the consent of

15  that person or that person's guardian, or by the personal

16  representative of the estate of a deceased victim without

17  regard to whether the cause of death resulted from the abuse,

18  neglect, or exploitation. The action may be brought in any

19  court of competent jurisdiction to enforce such action and to

20  recover actual and punitive damages for any deprivation of or

21  infringement on the rights of a vulnerable adult. A party who

22  prevails in any such action may be entitled to recover

23  reasonable attorney's fees, costs of the action, and damages.

24  The remedies provided in this section are in addition to and

25  cumulative with other legal and administrative remedies

26  available to a vulnerable adult. Notwithstanding the

27  foregoing, any civil action for damages against any licensee

28  or entity who establishes, controls, conducts, manages, or

29  operates a facility licensed under part II of chapter 400

30  relating to its operation of the licensed facility shall be

31  brought pursuant to s. 400.023, or against any licensee or

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 1  entity who establishes, controls, conducts, manages, or

 2  operates a facility licensed under part I III of chapter 429

 3  400 relating to its operation of the licensed facility shall

 4  be brought pursuant to s. 429.29 s. 400.429. Such licensee or

 5  entity shall not be vicariously liable for the acts or

 6  omissions of its employees or agents or any other third party

 7  in an action brought under this section.

 8         Section 87.  Section 430.601, Florida Statutes, is

 9  amended to read:

10         430.601  Home care for the elderly; legislative

11  intent.--It is the intent of the Legislature to encourage the

12  provision of care for the elderly in family-type living

13  arrangements in private homes as an alternative to

14  institutional or nursing home care for such persons. The

15  provisions of ss. 430.601-430.606 are intended to be

16  supplemental to the provisions of chapters chapter 400 and

17  429, relating to the licensing and regulation of nursing homes

18  and assisted living facilities, and do not exempt any person

19  who is otherwise subject to regulation under those chapters

20  the provisions of that chapter.

21         Section 88.  Subsection (7) of section 430.703, Florida

22  Statutes, is amended to read:

23         430.703  Definitions.--As used in this act, the term:

24         (7)  "Other qualified provider" means an entity

25  licensed under chapter 400 or chapter 429 that demonstrates a

26  long-term care continuum and meets all requirements pursuant

27  to an interagency agreement between the agency and the

28  department.

29         Section 89.  Paragraph (a) of subsection (3) of section

30  435.03, Florida Statutes, is amended to read:

31         435.03  Level 1 screening standards.--

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 1         (3)  Standards must also ensure that the person:

 2         (a)  For employees and employers licensed or registered

 3  pursuant to chapter 400 or chapter 429, and for employees and

 4  employers of developmental services institutions as defined in

 5  s. 393.063, intermediate care facilities for the

 6  developmentally disabled as defined in s. 393.063, and mental

 7  health treatment facilities as defined in s. 394.455, meets

 8  the requirements of this chapter.

 9         Section 90.  Paragraph (a) of subsection (4) of section

10  435.04, Florida Statutes, is amended to read:

11         435.04  Level 2 screening standards.--

12         (4)  Standards must also ensure that the person:

13         (a)  For employees or employers licensed or registered

14  pursuant to chapter 400 or chapter 429, does not have a

15  confirmed report of abuse, neglect, or exploitation as defined

16  in s. 415.102(6), which has been uncontested or upheld under

17  s. 415.103.

18         Section 91.  Paragraph (g) of subsection (1) of section

19  440.13, Florida Statutes, is amended to read:

20         440.13  Medical services and supplies; penalty for

21  violations; limitations.--

22         (1)  DEFINITIONS.--As used in this section, the term:

23         (g)  "Health care facility" means any hospital licensed

24  under chapter 395 and any health care institution licensed

25  under chapter 400 or chapter 429.

26         Section 92.  Subsection (1) of section 465.0235,

27  Florida Statutes, is amended to read:

28         465.0235  Automated pharmacy systems used by long-term

29  care facilities, hospices, or state correctional

30  institutions.--

31  

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 1         (1)  A pharmacy may provide pharmacy services to a

 2  long-term care facility or hospice licensed under chapter 400

 3  or chapter 429 or a state correctional institution operated

 4  under chapter 944 through the use of an automated pharmacy

 5  system that need not be located at the same location as the

 6  pharmacy.

 7         Section 93.  Subsection (8) of section 468.1685,

 8  Florida Statutes, is amended to read:

 9         468.1685  Powers and duties of board and

10  department.--It is the function and duty of the board,

11  together with the department, to:

12         (8)  Set up procedures by rule for advising and acting

13  together with the Department of Health and other boards of

14  other health professions in matters affecting procedures and

15  methods for effectively enforcing the purpose of this part and

16  the administration of chapters chapter 400 and 429.

17         Section 94.  Paragraph (k) of subsection (1) of section

18  468.505, Florida Statutes, is amended to read:

19         468.505  Exemptions; exceptions.--

20         (1)  Nothing in this part may be construed as

21  prohibiting or restricting the practice, services, or

22  activities of:

23         (k)  A person employed by a hospital licensed under

24  chapter 395, or by a nursing home or assisted living facility

25  licensed under part II or part III of chapter 400, by an

26  assisted living facility licensed under chapter 429, or by a

27  continuing care facility certified under chapter 651, if the

28  person is employed in compliance with the laws and rules

29  adopted thereunder regarding the operation of its dietetic

30  department.

31  

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 1         Section 95.  Subsection (11) of section 477.025,

 2  Florida Statutes, is amended to read:

 3         477.025  Cosmetology salons; specialty salons;

 4  requisites; licensure; inspection; mobile cosmetology

 5  salons.--

 6         (11)  Facilities licensed under part II or part III of

 7  chapter 400 or under part I of chapter 429 are shall be exempt

 8  from the provisions of this section, and a cosmetologist

 9  licensed pursuant to s. 477.019 may provide salon services

10  exclusively for facility residents.

11         Section 96.  Paragraph (a) of subsection (2) of section

12  509.032, Florida Statutes, is amended to read:

13         509.032  Duties.--

14         (2)  INSPECTION OF PREMISES.--

15         (a)  The division has responsibility and jurisdiction

16  for all inspections required by this chapter.  The division

17  has responsibility for quality assurance.  Each licensed

18  establishment shall be inspected at least biannually, except

19  for transient and nontransient apartments, which shall be

20  inspected at least annually, and shall be inspected at such

21  other times as the division determines is necessary to ensure

22  the public's health, safety, and welfare.  The division shall

23  establish a system to determine inspection frequency.  Public

24  lodging units classified as resort condominiums or resort

25  dwellings are not subject to this requirement, but shall be

26  made available to the division upon request.  If, during the

27  inspection of a public lodging establishment classified for

28  renting to transient or nontransient tenants, an inspector

29  identifies vulnerable adults who appear to be victims of

30  neglect, as defined in s. 415.102, or, in the case of a

31  building that is not equipped with automatic sprinkler

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 1  systems, tenants or clients who may be unable to self-preserve

 2  in an emergency, the division shall convene meetings with the

 3  following agencies as appropriate to the individual situation:

 4  the Department of Health, the Department of Elderly Affairs,

 5  the area agency on aging, the local fire marshal, the landlord

 6  and affected tenants and clients, and other relevant

 7  organizations, to develop a plan which improves the prospects

 8  for safety of affected residents and, if necessary, identifies

 9  alternative living arrangements such as facilities licensed

10  under part II or part III of chapter 400 or under chapter 429.

11         Section 97.  Subsection (1) of section 509.241, Florida

12  Statutes, is amended to read:

13         509.241  Licenses required; exceptions.--

14         (1)  LICENSES; ANNUAL RENEWALS.--Each public lodging

15  establishment and public food service establishment shall

16  obtain a license from the division. Such license may not be

17  transferred from one place or individual to another. It shall

18  be a misdemeanor of the second degree, punishable as provided

19  in s. 775.082 or s. 775.083, for such an establishment to

20  operate without a license. Local law enforcement shall provide

21  immediate assistance in pursuing an illegally operating

22  establishment. The division may refuse a license, or a renewal

23  thereof, to any establishment that is not constructed and

24  maintained in accordance with law and with the rules of the

25  division. The division may refuse to issue a license, or a

26  renewal thereof, to any establishment an operator of which,

27  within the preceding 5 years, has been adjudicated guilty of,

28  or has forfeited a bond when charged with, any crime

29  reflecting on professional character, including soliciting for

30  prostitution, pandering, letting premises for prostitution,

31  keeping a disorderly place, or illegally dealing in controlled

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 1  substances as defined in chapter 893, whether in this state or

 2  in any other jurisdiction within the United States, or has had

 3  a license denied, revoked, or suspended pursuant to s. 429.14

 4  s. 400.414. Licenses shall be renewed annually, and the

 5  division shall adopt a rule establishing a staggered schedule

 6  for license renewals. If any license expires while

 7  administrative charges are pending against the license, the

 8  proceedings against the license shall continue to conclusion

 9  as if the license were still in effect.

10         Section 98.  Subsection (1) of section 627.732, Florida

11  Statutes, is amended to read:

12         627.732  Definitions.--As used in ss. 627.730-627.7405,

13  the term:

14         (1)  "Broker" means any person not possessing a license

15  under chapter 395, chapter 400, chapter 429, chapter 458,

16  chapter 459, chapter 460, chapter 461, or chapter 641 who

17  charges or receives compensation for any use of medical

18  equipment and is not the 100-percent owner or the 100-percent

19  lessee of such equipment. For purposes of this section, such

20  owner or lessee may be an individual, a corporation, a

21  partnership, or any other entity and any of its

22  100-percent-owned affiliates and subsidiaries. For purposes of

23  this subsection, the term "lessee" means a long-term lessee

24  under a capital or operating lease, but does not include a

25  part-time lessee. The term "broker" does not include a

26  hospital or physician management company whose medical

27  equipment is ancillary to the practices managed, a debt

28  collection agency, or an entity that has contracted with the

29  insurer to obtain a discounted rate for such services; nor

30  does the term include a management company that has contracted

31  to provide general management services for a licensed

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 1  physician or health care facility and whose compensation is

 2  not materially affected by the usage or frequency of usage of

 3  medical equipment or an entity that is 100-percent owned by

 4  one or more hospitals or physicians. The term "broker" does

 5  not include a person or entity that certifies, upon request of

 6  an insurer, that:

 7         (a)  It is a clinic licensed under ss. 400.990-400.995;

 8         (b)  It is a 100-percent owner of medical equipment;

 9  and

10         (c)  The owner's only part-time lease of medical

11  equipment for personal injury protection patients is on a

12  temporary basis not to exceed 30 days in a 12-month period,

13  and such lease is solely for the purposes of necessary repair

14  or maintenance of the 100-percent-owned medical equipment or

15  pending the arrival and installation of the newly purchased or

16  a replacement for the 100-percent-owned medical equipment, or

17  for patients for whom, because of physical size or

18  claustrophobia, it is determined by the medical director or

19  clinical director to be medically necessary that the test be

20  performed in medical equipment that is open-style. The leased

21  medical equipment cannot be used by patients who are not

22  patients of the registered clinic for medical treatment of

23  services. Any person or entity making a false certification

24  under this subsection commits insurance fraud as defined in s.

25  817.234. However, the 30-day period provided in this paragraph

26  may be extended for an additional 60 days as applicable to

27  magnetic resonance imaging equipment if the owner certifies

28  that the extension otherwise complies with this paragraph.

29         Section 99.  Subsection (2) of section 651.011, Florida

30  Statutes, is amended to read:

31  

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 1         651.011  Definitions.--For the purposes of this

 2  chapter, the term:

 3         (2)  "Continuing care" or "care" means furnishing

 4  pursuant to a contract shelter and either nursing care or

 5  personal services as defined in s. 429.02 s. 400.402, whether

 6  such nursing care or personal services are provided in the

 7  facility or in another setting designated by the contract for

 8  continuing care, to an individual not related by consanguinity

 9  or affinity to the provider furnishing such care, upon payment

10  of an entrance fee. Other personal services provided shall be

11  designated in the continuing care contract. Contracts to

12  provide continuing care include agreements to provide care for

13  any duration, including contracts that are terminable by

14  either party.

15         Section 100.  Paragraph (c) of subsection (2) of

16  section 651.022, Florida Statutes, is amended to read:

17         651.022  Provisional certificate of authority;

18  application.--

19         (2)  The application for a provisional certificate of

20  authority shall be on a form prescribed by the commission and

21  shall contain the following information:

22         (c)1.  Evidence that the applicant is reputable and of

23  responsible character.  If the applicant is a firm,

24  association, organization, partnership, business trust,

25  corporation, or company, the form shall require evidence that

26  the members or shareholders are reputable and of responsible

27  character, and the person in charge of providing care under a

28  certificate of authority shall likewise be required to produce

29  evidence of being reputable and of responsible character.

30         2.  Evidence satisfactory to the office of the ability

31  of the applicant to comply with the provisions of this chapter

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 1  and with rules adopted by the commission pursuant to this

 2  chapter.

 3         3.  A statement of whether a person identified in the

 4  application for a provisional certificate of authority or the

 5  administrator or manager of the facility, if such person has

 6  been designated, or any such person living in the same

 7  location:

 8         a.  Has been convicted of a felony or has pleaded nolo

 9  contendere to a felony charge, or has been held liable or has

10  been enjoined in a civil action by final judgment, if the

11  felony or civil action involved fraud, embezzlement,

12  fraudulent conversion, or misappropriation of property.

13         b.  Is subject to a currently effective injunctive or

14  restrictive order or federal or state administrative order

15  relating to business activity or health care as a result of an

16  action brought by a public agency or department, including,

17  without limitation, an action affecting a license under

18  chapter 400 or chapter 429.

19  

20  The statement shall set forth the court or agency, the date of

21  conviction or judgment, and the penalty imposed or damages

22  assessed, or the date, nature, and issuer of the

23  order.  Before determining whether a provisional certificate

24  of authority is to be issued, the office may make an inquiry

25  to determine the accuracy of the information submitted

26  pursuant to subparagraphs 1. and 2.

27         Section 101.  Subsection (6) of section 651.023,

28  Florida Statutes, is amended to read:

29         651.023  Certificate of authority; application.--

30         (6)  The timeframes provided under s. 651.022(5) and

31  (6) apply to applications submitted under s. 651.021(2). The

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 1  office may not issue a certificate of authority under this

 2  chapter to any facility which does not have a component which

 3  is to be licensed pursuant to part II or part III of chapter

 4  400 or to part I of chapter 429 or which will not offer

 5  personal services or nursing services through written

 6  contractual agreement. Any written contractual agreement must

 7  be disclosed in the continuing care contract and is subject to

 8  the provisions of s. 651.1151, relating to administrative,

 9  vendor, and management contracts.

10         Section 102.  Subsection (8) of section 651.055,

11  Florida Statutes, is amended to read:

12         651.055  Contracts; right to rescind.--

13         (8)  The provisions of this section shall control over

14  any conflicting provisions contained in part II or part III of

15  chapter 400 or in part I of chapter 429.

16         Section 103.  Subsection (5) of section 651.095,

17  Florida Statutes, is amended to read:

18         651.095  Advertisements; requirements; penalties.--

19         (5)  The provisions of this section shall control over

20  any conflicting provisions contained in part II or part III of

21  chapter 400 or in part I of chapter 429.

22         Section 104.  Subsections (1), (4), (6), (7), and (8)

23  of section 651.118, Florida Statutes, are amended to read:

24         651.118  Agency for Health Care Administration;

25  certificates of need; sheltered beds; community beds.--

26         (1)  The provisions of this section shall control in

27  the case of conflict with the provisions of the Health

28  Facility and Services Development Act, ss. 408.031-408.045;

29  the provisions of chapter 395; or the provisions of part II

30  parts II and III of chapter 400; or the provisions of part I

31  of chapter 429.

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 1         (4)  The Agency for Health Care Administration shall

 2  approve one sheltered nursing home bed for every four proposed

 3  residential units, including those that are licensed under

 4  part I of chapter 429 part III of chapter 400, in the

 5  continuing care facility unless the provider demonstrates the

 6  need for a lesser number of sheltered nursing home beds based

 7  on proposed utilization by prospective residents or

 8  demonstrates the need for additional sheltered nursing home

 9  beds based on actual utilization and demand by current

10  residents.

11         (6)  Unless the provider already has a component that

12  is to be a part of the continuing care facility and that is

13  licensed under chapter 395, or part II or part III of chapter

14  400, or part I of chapter 429 at the time of construction of

15  the continuing care facility, the provider must construct the

16  nonnursing home portion of the facility and the nursing home

17  portion of the facility at the same time. If a provider

18  constructs less than the number of residential units approved

19  in the certificate of authority, the number of licensed

20  sheltered nursing home beds shall be reduced by a

21  proportionate share.

22         (7)  Notwithstanding the provisions of subsection (2),

23  at the discretion of the continuing care provider, sheltered

24  nursing home beds may be used for persons who are not

25  residents of the continuing care facility and who are not

26  parties to a continuing care contract for a period of up to 5

27  years after the date of issuance of the initial nursing home

28  license. A provider whose 5-year period has expired or is

29  expiring may request the Agency for Health Care Administration

30  for an extension, not to exceed 30 percent of the total

31  sheltered nursing home beds, if the utilization by residents

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 1  of the nursing home facility in the sheltered beds will not

 2  generate sufficient income to cover nursing home facility

 3  expenses, as evidenced by one of the following:

 4         (a)  The nursing home facility has a net loss for the

 5  most recent fiscal year as determined under generally accepted

 6  accounting principles, excluding the effects of extraordinary

 7  or unusual items, as demonstrated in the most recently audited

 8  financial statement; or

 9         (b)  The nursing home facility would have had a pro

10  forma loss for the most recent fiscal year, excluding the

11  effects of extraordinary or unusual items, if revenues were

12  reduced by the amount of revenues from persons in sheltered

13  beds who were not residents, as reported on by a certified

14  public accountant.

15  

16  The agency shall be authorized to grant an extension to the

17  provider based on the evidence required in this subsection.

18  The agency may request a continuing care facility to use up to

19  25 percent of the patient days generated by new admissions of

20  nonresidents during the extension period to serve Medicaid

21  recipients for those beds authorized for extended use if there

22  is a demonstrated need in the respective service area and if

23  funds are available. A provider who obtains an extension is

24  prohibited from applying for additional sheltered beds under

25  the provision of subsection (2), unless additional residential

26  units are built or the provider can demonstrate need by

27  continuing care facility residents to the Agency for Health

28  Care Administration. The 5-year limit does not apply to up to

29  five sheltered beds designated for inpatient hospice care as

30  part of a contractual arrangement with a hospice licensed

31  under part IV VI of chapter 400. A continuing care facility

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 1  that uses such beds after the 5-year period shall report such

 2  use to the Agency for Health Care Administration. For purposes

 3  of this subsection, "resident" means a person who, upon

 4  admission to the continuing care facility, initially resides

 5  in a part of the continuing care facility not licensed under

 6  part II of chapter 400.

 7         (8)  A provider may petition the Agency for Health Care

 8  Administration to use a designated number of sheltered nursing

 9  home beds to provide extended congregate care as defined in s.

10  429.02 s. 400.402 if the beds are in a distinct area of the

11  nursing home which can be adapted to meet the requirements for

12  extended congregate care. The provider may subsequently use

13  such beds as sheltered beds after notifying the agency of the

14  intended change. Any sheltered beds used to provide extended

15  congregate care pursuant to this subsection may not qualify

16  for funding under the Medicaid waiver. Any sheltered beds used

17  to provide extended congregate care pursuant to this

18  subsection may share common areas, services, and staff with

19  beds designated for nursing home care, provided that all of

20  the beds are under common ownership. For the purposes of this

21  subsection, fire and life safety codes applicable to nursing

22  home facilities shall apply.

23         Section 105.  Subsection (2) of section 765.1103,

24  Florida Statutes, is amended to read:

25         765.1103  Pain management and palliative care.--

26         (2)  Health care providers and practitioners regulated

27  under chapter 458, chapter 459, or chapter 464 must, as

28  appropriate, comply with a request for pain management or

29  palliative care from a patient under their care or, for an

30  incapacitated patient under their care, from a surrogate,

31  proxy, guardian, or other representative permitted to make

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 1  health care decisions for the incapacitated patient.

 2  Facilities regulated under chapter 395, or chapter 400, or

 3  chapter 429 must comply with the pain management or palliative

 4  care measures ordered by the patient's physician.

 5         Section 106.  Subsection (2) of section 765.205,

 6  Florida Statutes, is amended to read:

 7         765.205  Responsibility of the surrogate.--

 8         (2)  The surrogate may authorize the release of

 9  information and medical records to appropriate persons to

10  ensure the continuity of the principal's health care and may

11  authorize the admission, discharge, or transfer of the

12  principal to or from a health care facility or other facility

13  or program licensed under chapter 400 or chapter 429.

14         Section 107.  Subsection (1) of section 768.735,

15  Florida Statutes, is amended to read:

16         768.735  Punitive damages; exceptions; limitation.--

17         (1)  Sections 768.72(2)-(4), 768.725, and 768.73 do not

18  apply to any civil action based upon child abuse, abuse of the

19  elderly under chapter 415, or abuse of the developmentally

20  disabled. Such actions are governed by applicable statutes and

21  controlling judicial precedent. This section does not apply to

22  claims brought pursuant to s. 400.023 or s. 429.29 s. 400.429.

23         Section 108.  Paragraph (h) of subsection (1) of

24  section 893.13, Florida Statutes, is amended to read:

25         893.13  Prohibited acts; penalties.--

26         (1)

27         (h)  Except as authorized by this chapter, it is

28  unlawful for any person to sell, manufacture, or deliver, or

29  possess with intent to sell, manufacture, or deliver, a

30  controlled substance in, on, or within 1,000 feet of the real

31  property comprising an assisted living facility, as that term

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 1  is used in chapter 429 400. Any person who violates this

 2  paragraph with respect to:

 3         1.  A controlled substance named or described in s.

 4  893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4.

 5  commits a felony of the first degree, punishable as provided

 6  in s. 775.082, s. 775.083, or s. 775.084.

 7         2.  A controlled substance named or described in s.

 8  893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5.,

 9  (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) commits a

10  felony of the second degree, punishable as provided in s.

11  775.082, s. 775.083, or s. 775.084.

12         Section 109.  Paragraph (a) of subsection (4) of

13  section 943.0585, Florida Statutes, is amended to read:

14         943.0585  Court-ordered expunction of criminal history

15  records.--The courts of this state have jurisdiction over

16  their own procedures, including the maintenance, expunction,

17  and correction of judicial records containing criminal history

18  information to the extent such procedures are not inconsistent

19  with the conditions, responsibilities, and duties established

20  by this section. Any court of competent jurisdiction may order

21  a criminal justice agency to expunge the criminal history

22  record of a minor or an adult who complies with the

23  requirements of this section. The court shall not order a

24  criminal justice agency to expunge a criminal history record

25  until the person seeking to expunge a criminal history record

26  has applied for and received a certificate of eligibility for

27  expunction pursuant to subsection (2). A criminal history

28  record that relates to a violation of s. 393.135, s. 394.4593,

29  s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 817.034, s.

30  825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135,

31  s. 847.0145, s. 893.135,  s. 916.1075, or a violation

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 1  enumerated in s. 907.041 may not be expunged, without regard

 2  to whether adjudication was withheld, if the defendant was

 3  found guilty of or pled guilty or nolo contendere to the

 4  offense, or if the defendant, as a minor, was found to have

 5  committed, or pled guilty or nolo contendere to committing,

 6  the offense as a delinquent act. The court may only order

 7  expunction of a criminal history record pertaining to one

 8  arrest or one incident of alleged criminal activity, except as

 9  provided in this section. The court may, at its sole

10  discretion, order the expunction of a criminal history record

11  pertaining to more than one arrest if the additional arrests

12  directly relate to the original arrest. If the court intends

13  to order the expunction of records pertaining to such

14  additional arrests, such intent must be specified in the

15  order. A criminal justice agency may not expunge any record

16  pertaining to such additional arrests if the order to expunge

17  does not articulate the intention of the court to expunge a

18  record pertaining to more than one arrest. This section does

19  not prevent the court from ordering the expunction of only a

20  portion of a criminal history record pertaining to one arrest

21  or one incident of alleged criminal activity. Notwithstanding

22  any law to the contrary, a criminal justice agency may comply

23  with laws, court orders, and official requests of other

24  jurisdictions relating to expunction, correction, or

25  confidential handling of criminal history records or

26  information derived therefrom. This section does not confer

27  any right to the expunction of any criminal history record,

28  and any request for expunction of a criminal history record

29  may be denied at the sole discretion of the court.

30         (4)  EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any

31  criminal history record of a minor or an adult which is

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 1  ordered expunged by a court of competent jurisdiction pursuant

 2  to this section must be physically destroyed or obliterated by

 3  any criminal justice agency having custody of such record;

 4  except that any criminal history record in the custody of the

 5  department must be retained in all cases. A criminal history

 6  record ordered expunged that is retained by the department is

 7  confidential and exempt from the provisions of s. 119.07(1)

 8  and s. 24(a), Art. I of the State Constitution and not

 9  available to any person or entity except upon order of a court

10  of competent jurisdiction. A criminal justice agency may

11  retain a notation indicating compliance with an order to

12  expunge.

13         (a)  The person who is the subject of a criminal

14  history record that is expunged under this section or under

15  other provisions of law, including former s. 893.14, former s.

16  901.33, and former s. 943.058, may lawfully deny or fail to

17  acknowledge the arrests covered by the expunged record, except

18  when the subject of the record:

19         1.  Is a candidate for employment with a criminal

20  justice agency;

21         2.  Is a defendant in a criminal prosecution;

22         3.  Concurrently or subsequently petitions for relief

23  under this section or s. 943.059;

24         4.  Is a candidate for admission to The Florida Bar;

25         5.  Is seeking to be employed or licensed by or to

26  contract with the Department of Children and Family Services

27  or the Department of Juvenile Justice or to be employed or

28  used by such contractor or licensee in a sensitive position

29  having direct contact with children, the developmentally

30  disabled, the aged, or the elderly as provided in s.

31  110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.

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 1  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

 2  916.106(10) and (13), s. 985.407, or chapter 400, or chapter

 3  429; or

 4         6.  Is seeking to be employed or licensed by the

 5  Department of Education, any district school board, any

 6  university laboratory school, any charter school, any private

 7  or parochial school, or any local governmental entity that

 8  licenses child care facilities.

 9         Section 110.  Paragraph (a) of subsection (4) of

10  section 943.059, Florida Statutes, is amended to read:

11         943.059  Court-ordered sealing of criminal history

12  records.--The courts of this state shall continue to have

13  jurisdiction over their own procedures, including the

14  maintenance, sealing, and correction of judicial records

15  containing criminal history information to the extent such

16  procedures are not inconsistent with the conditions,

17  responsibilities, and duties established by this section. Any

18  court of competent jurisdiction may order a criminal justice

19  agency to seal the criminal history record of a minor or an

20  adult who complies with the requirements of this section. The

21  court shall not order a criminal justice agency to seal a

22  criminal history record until the person seeking to seal a

23  criminal history record has applied for and received a

24  certificate of eligibility for sealing pursuant to subsection

25  (2). A criminal history record that relates to a violation of

26  s. 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03,

27  s. 800.04, s. 817.034, s. 825.1025, s. 827.071, chapter 839,

28  s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.

29  916.1075, or a violation enumerated in s. 907.041 may not be

30  sealed, without regard to whether adjudication was withheld,

31  if the defendant was found guilty of or pled guilty or nolo

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 1  contendere to the offense, or if the defendant, as a minor,

 2  was found to have committed or pled guilty or nolo contendere

 3  to committing the offense as a delinquent act. The court may

 4  only order sealing of a criminal history record pertaining to

 5  one arrest or one incident of alleged criminal activity,

 6  except as provided in this section. The court may, at its sole

 7  discretion, order the sealing of a criminal history record

 8  pertaining to more than one arrest if the additional arrests

 9  directly relate to the original arrest. If the court intends

10  to order the sealing of records pertaining to such additional

11  arrests, such intent must be specified in the order. A

12  criminal justice agency may not seal any record pertaining to

13  such additional arrests if the order to seal does not

14  articulate the intention of the court to seal records

15  pertaining to more than one arrest. This section does not

16  prevent the court from ordering the sealing of only a portion

17  of a criminal history record pertaining to one arrest or one

18  incident of alleged criminal activity. Notwithstanding any law

19  to the contrary, a criminal justice agency may comply with

20  laws, court orders, and official requests of other

21  jurisdictions relating to sealing, correction, or confidential

22  handling of criminal history records or information derived

23  therefrom. This section does not confer any right to the

24  sealing of any criminal history record, and any request for

25  sealing a criminal history record may be denied at the sole

26  discretion of the court.

27         (4)  EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A

28  criminal history record of a minor or an adult which is

29  ordered sealed by a court of competent jurisdiction pursuant

30  to this section is confidential and exempt from the provisions

31  of s. 119.07(1) and s. 24(a), Art. I of the State Constitution

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 1  and is available only to the person who is the subject of the

 2  record, to the subject's attorney, to criminal justice

 3  agencies for their respective criminal justice purposes, or to

 4  those entities set forth in subparagraphs (a)1., 4., 5., and

 5  6. for their respective licensing and employment purposes.

 6         (a)  The subject of a criminal history record sealed

 7  under this section or under other provisions of law, including

 8  former s. 893.14, former s. 901.33, and former s. 943.058, may

 9  lawfully deny or fail to acknowledge the arrests covered by

10  the sealed record, except when the subject of the record:

11         1.  Is a candidate for employment with a criminal

12  justice agency;

13         2.  Is a defendant in a criminal prosecution;

14         3.  Concurrently or subsequently petitions for relief

15  under this section or s. 943.0585;

16         4.  Is a candidate for admission to The Florida Bar;

17         5.  Is seeking to be employed or licensed by or to

18  contract with the Department of Children and Family Services

19  or the Department of Juvenile Justice or to be employed or

20  used by such contractor or licensee in a sensitive position

21  having direct contact with children, the developmentally

22  disabled, the aged, or the elderly as provided in s.

23  110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.

24  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), s.

25  415.103, s. 916.106(10) and (13), s. 985.407, or chapter 400,

26  or chapter 429; or

27         6.  Is seeking to be employed or licensed by the

28  Department of Education, any district school board, any

29  university laboratory school, any charter school, any private

30  or parochial school, or any local governmental entity that

31  licenses child care facilities.

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 1         Section 111.  The Division of Statutory Revision of the

 2  Office of Legislative Services is requested to prepare a

 3  reviser's bill for introduction at a subsequent session of the

 4  Legislature to conform the Florida Statutes to changes made by

 5  this act.

 6         Section 112.  This act shall take effect July 1, 2006.

 7  

 8          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 9                         Senate Bill 388

10                                 

11  The committee substitute contains numerous technical
    amendments relating to statutory references.
12  

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