CS/HB 385

1	A bill to be entitled
2	An act relating to nursing home facilities; amending s.
3	400.118, F.S.; revising provisions relating to frequency
4	of quality-of-care monitoring of specified facilities;
5	amending s. 400.141, F.S.; authorizing facilities with a
6	standard license to provide certified nursing assistant
7	training; authorizing the Agency for Health Care
8	Administration to adopt rules for the training program;
9	amending s. 400.147, F.S.; revising a definition; revising
10	reporting requirements under facility internal risk
11	management and quality assurance programs; amending s.
12	400.19, F.S.; providing conditions for scheduling surveys
13	when certain deficiencies are overturned; amending s.
14	400.195, F.S.; correcting a cross-reference; amending s.
15	400.23, F.S.; revising conditions for documentation of
16	compliance with staffing standards; providing an effective
17	date.
18
19	Be It Enacted by the Legislature of the State of Florida:
20
21	Section 1.  Paragraph (a) of subsection (2) of section
22	400.118, Florida Statutes, is amended to read:
23	400.118  Quality assurance; early warning system;
24	monitoring; rapid response teams.--
25	(2)(a)  The agency shall establish within each district
26	office one or more quality-of-care monitors, based on the number
27	of nursing facilities in the district, to monitor all nursing
28	facilities in the district on a regular, unannounced, aperiodic
29	basis, including nights, evenings, weekends, and holidays.
30	Quality-of-care monitors shall visit each nursing facility
31	annually, shall visit each conditionally licensed nursing
32	facility at least quarterly, and shall visit other nursing
33	facilities as directed by the agency. However, upon request, the
34	agency shall conduct quarterly visits at a nursing facility that
35	is not conditionally licensed. The request shall be valid
36	through the current licensure period, and an extension may be
37	requested by the facility at the time of licensure renewal.
38	Priority for additional monitoring visits shall be given to
39	nursing facilities with a history of resident care deficiencies.
40	Quality-of-care monitors shall be registered nurses who are
41	trained and experienced in nursing facility regulation,
42	standards of practice in long-term care, and evaluation of
43	patient care. Individuals in these positions shall not be
44	deployed by the agency as a part of the district survey team in
45	the conduct of routine, scheduled surveys, but shall function
46	solely and independently as quality-of-care monitors. Quality-
47	of-care monitors shall assess the overall quality of life in the
48	nursing facility and shall assess specific conditions in the
49	facility directly related to resident care, including the
50	operations of internal quality improvement and risk management
51	programs and adverse incident reports. The quality-of-care
52	monitor shall include in an assessment visit observation of the
53	care and services rendered to residents and formal and informal
54	interviews with residents, family members, facility staff,
55	resident guests, volunteers, other regulatory staff, and
56	representatives of a long-term care ombudsman council or Florida
57	advocacy council.
58	Section 2.  Section 400.141, Florida Statutes, is amended
59	to read:
60	400.141  Administration and management of nursing home
61	facilities.--Every licensed facility shall comply with all
62	applicable standards and rules of the agency and shall:
63	(1)  Be under the administrative direction and charge of a
64	licensed administrator.
65	(2)  Appoint a medical director licensed pursuant to
66	chapter 458 or chapter 459. The agency may establish by rule
67	more specific criteria for the appointment of a medical
68	director.
69	(3)  Have available the regular, consultative, and
70	emergency services of physicians licensed by the state.
71	(4)  Provide for resident use of a community pharmacy as
72	specified in s. 400.022(1)(q). Any other law to the contrary
73	notwithstanding, a registered pharmacist licensed in Florida,
74	that is under contract with a facility licensed under this
75	chapter or chapter 429, shall repackage a nursing facility
76	resident's bulk prescription medication which has been packaged
77	by another pharmacist licensed in any state in the United States
78	into a unit dose system compatible with the system used by the
79	nursing facility, if the pharmacist is requested to offer such
80	service. In order to be eligible for the repackaging, a resident
81	or the resident's spouse must receive prescription medication
82	benefits provided through a former employer as part of his or
83	her retirement benefits, a qualified pension plan as specified
84	in s. 4972 of the Internal Revenue Code, a federal retirement
85	program as specified under 5 C.F.R. s. 831, or a long-term care
86	policy as defined in s. 627.9404(1). A pharmacist who correctly
87	repackages and relabels the medication and the nursing facility
88	which correctly administers such repackaged medication under the
89	provisions of this subsection shall not be held liable in any
90	civil or administrative action arising from the repackaging. In
91	order to be eligible for the repackaging, a nursing facility
92	resident for whom the medication is to be repackaged shall sign
93	an informed consent form provided by the facility which includes
94	an explanation of the repackaging process and which notifies the
95	resident of the immunities from liability provided herein. A
96	pharmacist who repackages and relabels prescription medications,
97	as authorized under this subsection, may charge a reasonable fee
98	for costs resulting from the implementation of this provision.
99	(5)  Provide for the access of the facility residents to
100	dental and other health-related services, recreational services,
101	rehabilitative services, and social work services appropriate to
102	their needs and conditions and not directly furnished by the
103	licensee. When a geriatric outpatient nurse clinic is conducted
104	in accordance with rules adopted by the agency, outpatients
105	attending such clinic shall not be counted as part of the
106	general resident population of the nursing home facility, nor
107	shall the nursing staff of the geriatric outpatient clinic be
108	counted as part of the nursing staff of the facility, until the
109	outpatient clinic load exceeds 15 a day.
110	(6)  Be allowed and encouraged by the agency to provide
111	other needed services under certain conditions. If the facility
112	has a standard licensure status, and has had no class I or class
113	II deficiencies during the past 2 years or has been awarded a
114	Gold Seal under the program established in s. 400.235, it may be
115	encouraged by the agency to provide services, including, but not
116	limited to, respite and adult day services, which enable
117	individuals to move in and out of the facility. A facility is
118	not subject to any additional licensure requirements for
119	providing these services. Respite care may be offered to persons
120	in need of short-term or temporary nursing home services.
121	Respite care must be provided in accordance with this part and
122	rules adopted by the agency. However, the agency shall, by rule,
123	adopt modified requirements for resident assessment, resident
124	care plans, resident contracts, physician orders, and other
125	provisions, as appropriate, for short-term or temporary nursing
126	home services. The agency shall allow for shared programming and
127	staff in a facility which meets minimum standards and offers
128	services pursuant to this subsection, but, if the facility is
129	cited for deficiencies in patient care, may require additional
130	staff and programs appropriate to the needs of service
131	recipients. A person who receives respite care may not be
132	counted as a resident of the facility for purposes of the
133	facility's licensed capacity unless that person receives 24-hour
134	respite care. A person receiving either respite care for 24
135	hours or longer or adult day services must be included when
136	calculating minimum staffing for the facility. Any costs and
137	revenues generated by a nursing home facility from
138	nonresidential programs or services shall be excluded from the
139	calculations of Medicaid per diems for nursing home
140	institutional care reimbursement.
141	(7)  If the facility has a standard license or is a Gold
142	Seal facility, exceeds the minimum required hours of licensed
143	nursing and certified nursing assistant direct care per resident
144	per day, and is part of a continuing care facility licensed
145	under chapter 651 or a retirement community that offers other
146	services pursuant to part III of this chapter or part I or part
147	III of chapter 429 on a single campus, be allowed to share
148	programming and staff. At the time of inspection and in the
149	semiannual report required pursuant to subsection (15), a
150	continuing care facility or retirement community that uses this
151	option must demonstrate through staffing records that minimum
152	staffing requirements for the facility were met. Licensed nurses
153	and certified nursing assistants who work in the nursing home
154	facility may be used to provide services elsewhere on campus if
155	the facility exceeds the minimum number of direct care hours
156	required per resident per day and the total number of residents
157	receiving direct care services from a licensed nurse or a
158	certified nursing assistant does not cause the facility to
159	violate the staffing ratios required under s. 400.23(3)(a).
160	Compliance with the minimum staffing ratios shall be based on
161	total number of residents receiving direct care services,
162	regardless of where they reside on campus. If the facility
163	receives a conditional license, it may not share staff until the
164	conditional license status ends. This subsection does not
165	restrict the agency's authority under federal or state law to
166	require additional staff if a facility is cited for deficiencies
167	in care which are caused by an insufficient number of certified
168	nursing assistants or licensed nurses. The agency may adopt
169	rules for the documentation necessary to determine compliance
170	with this provision.
171	(8)  Maintain the facility premises and equipment and
172	conduct its operations in a safe and sanitary manner.
173	(9)  If the licensee furnishes food service, provide a
174	wholesome and nourishing diet sufficient to meet generally
175	accepted standards of proper nutrition for its residents and
176	provide such therapeutic diets as may be prescribed by attending
177	physicians. In making rules to implement this subsection, the
178	agency shall be guided by standards recommended by nationally
179	recognized professional groups and associations with knowledge
180	of dietetics.
181	(10)  Keep full records of resident admissions and
182	discharges; medical and general health status, including medical
183	records, personal and social history, and identity and address
184	of next of kin or other persons who may have responsibility for
185	the affairs of the residents; and individual resident care plans
186	including, but not limited to, prescribed services, service
187	frequency and duration, and service goals. The records shall be
188	open to inspection by the agency.
189	(11)  Keep such fiscal records of its operations and
190	conditions as may be necessary to provide information pursuant
191	to this part.
192	(12)  Furnish copies of personnel records for employees
193	affiliated with such facility, to any other facility licensed by
194	this state requesting this information pursuant to this part.
195	Such information contained in the records may include, but is
196	not limited to, disciplinary matters and any reason for
197	termination. Any facility releasing such records pursuant to
198	this part shall be considered to be acting in good faith and may
199	not be held liable for information contained in such records,
200	absent a showing that the facility maliciously falsified such
201	records.
202	(13)  Publicly display a poster provided by the agency
203	containing the names, addresses, and telephone numbers for the
204	state's abuse hotline, the State Long-Term Care Ombudsman, the
205	Agency for Health Care Administration consumer hotline, the
206	Advocacy Center for Persons with Disabilities, the Florida
207	Statewide Advocacy Council, and the Medicaid Fraud Control Unit,
208	with a clear description of the assistance to be expected from
209	each.
210	(14)  Submit to the agency the information specified in s.
211	400.071(2)(e) for a management company within 30 days after the
212	effective date of the management agreement.
213	(15)  Submit semiannually to the agency, or more frequently
214	if requested by the agency, information regarding facility
215	staff-to-resident ratios, staff turnover, and staff stability,
216	including information regarding certified nursing assistants,
217	licensed nurses, the director of nursing, and the facility
218	administrator. For purposes of this reporting:
219	(a)  Staff-to-resident ratios must be reported in the
220	categories specified in s. 400.23(3)(a) and applicable rules.
221	The ratio must be reported as an average for the most recent
222	calendar quarter.
223	(b)  Staff turnover must be reported for the most recent
224	12-month period ending on the last workday of the most recent
225	calendar quarter prior to the date the information is submitted.
226	The turnover rate must be computed quarterly, with the annual
227	rate being the cumulative sum of the quarterly rates. The
228	turnover rate is the total number of terminations or separations
229	experienced during the quarter, excluding any employee
230	terminated during a probationary period of 3 months or less,
231	divided by the total number of staff employed at the end of the
232	period for which the rate is computed, and expressed as a
233	percentage.
234	(c)  The formula for determining staff stability is the
235	total number of employees that have been employed for more than
236	12 months, divided by the total number of employees employed at
237	the end of the most recent calendar quarter, and expressed as a
238	percentage.
239	(d)  A nursing facility that has failed to comply with
240	state minimum-staffing requirements for 2 consecutive days is
241	prohibited from accepting new admissions until the facility has
242	achieved the minimum-staffing requirements for a period of 6
243	consecutive days. For the purposes of this paragraph, any person
244	who was a resident of the facility and was absent from the
245	facility for the purpose of receiving medical care at a separate
246	location or was on a leave of absence is not considered a new
247	admission. Failure to impose such an admissions moratorium
248	constitutes a class II deficiency.
249	(e)  A nursing facility which does not have a conditional
250	license may be cited for failure to comply with the standards in
251	s. 400.23(3)(a)1.a. only if it has failed to meet those
252	standards on 2 consecutive days or if it has failed to meet at
253	least 97 percent of those standards on any one day.
254	(f)  A facility which has a conditional license must be in
255	compliance with the standards in s. 400.23(3)(a) at all times.
256
257	Nothing in this section shall limit the agency's ability to
258	impose a deficiency or take other actions if a facility does not
259	have enough staff to meet the residents' needs.
260	(16)  Report monthly the number of vacant beds in the
261	facility which are available for resident occupancy on the day
262	the information is reported.
263	(17)  Notify a licensed physician when a resident exhibits
264	signs of dementia or cognitive impairment or has a change of
265	condition in order to rule out the presence of an underlying
266	physiological condition that may be contributing to such
267	dementia or impairment. The notification must occur within 30
268	days after the acknowledgment of such signs by facility staff.
269	If an underlying condition is determined to exist, the facility
270	shall arrange, with the appropriate health care provider, the
271	necessary care and services to treat the condition.
272	(18)  If the facility implements a dining and hospitality
273	attendant program, ensure that the program is developed and
274	implemented under the supervision of the facility director of
275	nursing. A licensed nurse, licensed speech or occupational
276	therapist, or a registered dietitian must conduct training of
277	dining and hospitality attendants. A person employed by a
278	facility as a dining and hospitality attendant must perform
279	tasks under the direct supervision of a licensed nurse.
280	(19)  Report to the agency any filing for bankruptcy
281	protection by the facility or its parent corporation,
282	divestiture or spin-off of its assets, or corporate
283	reorganization within 30 days after the completion of such
284	activity.
285	(20)  Maintain general and professional liability insurance
286	coverage that is in force at all times. In lieu of general and
287	professional liability insurance coverage, a state-designated
288	teaching nursing home and its affiliated assisted living
289	facilities created under s. 430.80 may demonstrate proof of
290	financial responsibility as provided in s. 430.80(3)(h).
291	(21)  Maintain in the medical record for each resident a
292	daily chart of certified nursing assistant services provided to
293	the resident. The certified nursing assistant who is caring for
294	the resident must complete this record by the end of his or her
295	shift. This record must indicate assistance with activities of
296	daily living, assistance with eating, and assistance with
297	drinking, and must record each offering of nutrition and
298	hydration for those residents whose plan of care or assessment
299	indicates a risk for malnutrition or dehydration.
300	(22)  Before November 30 of each year, subject to the
301	availability of an adequate supply of the necessary vaccine,
302	provide for immunizations against influenza viruses to all its
303	consenting residents in accordance with the recommendations of
304	the United States Centers for Disease Control and Prevention,
305	subject to exemptions for medical contraindications and
306	religious or personal beliefs. Subject to these exemptions, any
307	consenting person who becomes a resident of the facility after
308	November 30 but before March 31 of the following year must be
309	immunized within 5 working days after becoming a resident.
310	Immunization shall not be provided to any resident who provides
311	documentation that he or she has been immunized as required by
312	this subsection. This subsection does not prohibit a resident
313	from receiving the immunization from his or her personal
314	physician if he or she so chooses. A resident who chooses to
315	receive the immunization from his or her personal physician
316	shall provide proof of immunization to the facility. The agency
317	may adopt and enforce any rules necessary to comply with or
318	implement this subsection.
319	(23)  Assess all residents for eligibility for pneumococcal
320	polysaccharide vaccination (PPV) and vaccinate residents when
321	indicated within 60 days after the effective date of this act in
322	accordance with the recommendations of the United States Centers
323	for Disease Control and Prevention, subject to exemptions for
324	medical contraindications and religious or personal beliefs.
325	Residents admitted after the effective date of this act shall be
326	assessed within 5 working days of admission and, when indicated,
327	vaccinated within 60 days in accordance with the recommendations
328	of the United States Centers for Disease Control and Prevention,
329	subject to exemptions for medical contraindications and
330	religious or personal beliefs. Immunization shall not be
331	provided to any resident who provides documentation that he or
332	she has been immunized as required by this subsection. This
333	subsection does not prohibit a resident from receiving the
334	immunization from his or her personal physician if he or she so
335	chooses. A resident who chooses to receive the immunization from
336	his or her personal physician shall provide proof of
337	immunization to the facility. The agency may adopt and enforce
338	any rules necessary to comply with or implement this subsection.
339	(24)  Annually encourage and promote to its employees the
340	benefits associated with immunizations against influenza viruses
341	in accordance with the recommendations of the United States
342	Centers for Disease Control and Prevention. The agency may adopt
343	and enforce any rules necessary to comply with or implement this
344	subsection.
345
346	Every facility with a standard license Facilities that have been
347	awarded a Gold Seal under the program established in s. 400.235
348	may develop a plan to provide certified nursing assistant
349	training as prescribed by federal regulations and state rules
350	and may apply to the agency for approval of its their program.
351	The agency may adopt rules regarding the approval, suspension,
352	and termination of a certified nursing assistant training
353	program provided by such facility.
354	Section 3.  Subsections (9) through (15) of section
355	400.147, Florida Statutes, are renumbered as subsections (8)
356	through (14), respectively, and paragraph (e) of subsection (5),
357	subsection (7), and present subsection (8) of that section are
358	amended to read:
359	400.147  Internal risk management and quality assurance
360	program.--
361	(5)  For purposes of reporting to the agency under this
362	section, the term "adverse incident" means:
363	(e)  An event that is reported to law enforcement for
364	investigation.
365	(7)(a)  The facility shall initiate an investigation and
366	shall notify the agency within 1 business day after the risk
367	manager or his or her designee has received a report pursuant to
368	paragraph (1)(d). The notification must be made in writing and
369	be provided electronically, by facsimile device or overnight
370	mail delivery. The notification must include information
371	regarding the identity of the affected resident, the type of
372	adverse incident, the initiation of an investigation by the
373	facility, and whether the events causing or resulting in the
374	adverse incident represent a potential risk to any other
375	resident. The notification is confidential as provided by law
376	and is not discoverable or admissible in any civil or
377	administrative action, except in disciplinary proceedings by the
378	agency or the appropriate regulatory board. The agency may
379	investigate, as it deems appropriate, any such incident and
380	prescribe measures that must or may be taken in response to the
381	incident. The agency shall review each incident and determine
382	whether it potentially involved conduct by the health care
383	professional who is subject to disciplinary action, in which
384	case the provisions of s. 456.073 shall apply.
385	(b)(8)(a)  Each facility shall complete the investigation
386	and submit an adverse incident report to the agency for each
387	adverse incident within 15 calendar days after its occurrence.
388	If, after a complete investigation, the risk manager determines
389	that the incident was not an adverse incident as defined in
390	subsection (5), the facility shall include this information in
391	the report. The agency shall develop a form for reporting this
392	information.
393	(c)(b)  The information reported to the agency pursuant to
394	paragraph (b) that (a) which relates to persons licensed under
395	chapter 458, chapter 459, chapter 461, or chapter 466 shall be
396	reviewed by the agency. The agency shall determine whether any
397	of the incidents potentially involved conduct by a health care
398	professional who is subject to disciplinary action, in which
399	case the provisions of s. 456.073 shall apply.
400	(d)(c)  The report submitted to the agency must also
401	contain the name of the risk manager of the facility.
402	(e)(d)  The adverse incident report is confidential as
403	provided by law and is not discoverable or admissible in any
404	civil or administrative action, except in disciplinary
405	proceedings by the agency or the appropriate regulatory board.
406	Section 4.  Subsection (3) of section 400.19, Florida
407	Statutes, is amended to read:
408	400.19  Right of entry and inspection.--
409	(3)  The agency shall every 15 months conduct at least one
410	unannounced inspection to determine compliance by the licensee
411	with statutes, and with rules promulgated under the provisions
412	of those statutes, governing minimum standards of construction,
413	quality and adequacy of care, and rights of residents. The
414	survey shall be conducted every 6 months for the next 2-year
415	period if the facility has been cited for a class I deficiency,
416	has been cited for two or more class II deficiencies arising
417	from separate surveys or investigations within a 60-day period,
418	or has had three or more substantiated complaints within a 6-
419	month period, each resulting in at least one class I or class II
420	deficiency. In addition to any other fees or fines in this part,
421	the agency shall assess a fine for each facility that is subject
422	to the 6-month survey cycle. The fine for the 2-year period
423	shall be $6,000, one-half to be paid at the completion of each
424	survey. The agency may adjust this fine by the change in the
425	Consumer Price Index, based on the 12 months immediately
426	preceding the increase, to cover the cost of the additional
427	surveys. In the event such deficiencies are overturned as the
428	result of administrative action but additional surveys have
429	already been conducted pursuant to this section, the most recent
430	survey shall be considered a licensure survey for purposes of
431	future survey scheduling. The agency shall verify through
432	subsequent inspection that any deficiency identified during the
433	annual inspection is corrected. However, the agency may verify
434	the correction of a class III or class IV deficiency unrelated
435	to resident rights or resident care without reinspecting the
436	facility if adequate written documentation has been received
437	from the facility, which provides assurance that the deficiency
438	has been corrected. The giving or causing to be given of advance
439	notice of such unannounced inspections by an employee of the
440	agency to any unauthorized person shall constitute cause for
441	suspension of not fewer than 5 working days according to the
442	provisions of chapter 110.
443	Section 5.  Paragraph (d) of subsection (1) of section
444	400.195, Florida Statutes, is amended to read:
445	400.195  Agency reporting requirements.--
446	(1)  For the period beginning June 30, 2001, and ending
447	June 30, 2005, the Agency for Health Care Administration shall
448	provide a report to the Governor, the President of the Senate,
449	and the Speaker of the House of Representatives with respect to
450	nursing homes. The first report shall be submitted no later than
451	December 30, 2002, and subsequent reports shall be submitted
452	every 6 months thereafter. The report shall identify facilities
453	based on their ownership characteristics, size, business
454	structure, for-profit or not-for-profit status, and any other
455	characteristics the agency determines useful in analyzing the
456	varied segments of the nursing home industry and shall report:
457	(d)  Information regarding deficiencies cited, including
458	information used to develop the Nursing Home Guide WATCH LIST
459	pursuant to s. 400.191, and applicable rules, a summary of data
460	generated on nursing homes by Centers for Medicare and Medicaid
461	Services Nursing Home Quality Information Project, and
462	information collected pursuant to s. 400.147(8)(9), relating to
463	litigation.
464	Section 6.  Paragraph (a) of subsection (3) of section
465	400.23, Florida Statutes, is amended to read:
466	400.23  Rules; evaluation and deficiencies; licensure
467	status.--
468	(3)(a)1.  The agency shall adopt rules providing minimum
469	staffing requirements for nursing homes. These requirements
470	shall include, for each nursing home facility:
471	a.  A minimum certified nursing assistant staffing of 2.6
472	hours of direct care per resident per day beginning January 1,
473	2003, and increasing to 2.7 hours of direct care per resident
474	per day beginning January 1, 2007. Beginning January 1, 2002, no
475	facility shall staff below one certified nursing assistant per
476	20 residents, and a minimum licensed nursing staffing of 1.0
477	hour of direct care per resident per day but never below one
478	licensed nurse per 40 residents.
479	b.  Beginning January 1, 2007, a minimum weekly average
480	certified nursing assistant staffing of 2.9 hours of direct care
481	per resident per day. For the purpose of this sub-subparagraph,
482	a week is defined as Sunday through Saturday.
483	2.  Nursing assistants employed under s. 400.211(2) may be
484	included in computing the staffing ratio for certified nursing
485	assistants only if their job responsibilities include only
486	nursing-assistant-related duties.
487	3.  Each nursing home must document compliance with
488	staffing standards as required under this paragraph and post
489	daily the names of staff on duty for the benefit of facility
490	residents and the public. Compliance with federal posting
491	requirements shall satisfy the posting requirements of this
492	subparagraph.
493	4.  The agency shall recognize the use of licensed nurses
494	for compliance with minimum staffing requirements for certified
495	nursing assistants, provided that the facility otherwise meets
496	the minimum staffing requirements for licensed nurses and that
497	the licensed nurses are performing the duties of a certified
498	nursing assistant. Unless otherwise approved by the agency,
499	licensed nurses counted toward the minimum staffing requirements
500	for certified nursing assistants must exclusively perform the
501	duties of a certified nursing assistant for the entire shift and
502	not also be counted toward the minimum staffing requirements for
503	licensed nurses. If the agency approved a facility's request to
504	use a licensed nurse to perform both licensed nursing and
505	certified nursing assistant duties, the facility must allocate
506	the amount of staff time specifically spent on certified nursing
507	assistant duties for the purpose of documenting compliance with
508	minimum staffing requirements for certified and licensed nursing
509	staff. In no event may the hours of a licensed nurse with dual
510	job responsibilities be counted twice.
511	Section 7.  This act shall take effect July 1, 2007.

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