Florida Senate - 2008 CS for SB 1374

By the Committees on Health Regulation; Health Regulation; and Senator Jones

588-04508-08 20081374c1

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A bill to be entitled

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An act relating to home health care; amending s. 400.462,

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F.S.; revising and adding definitions; amending s.

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400.464, F.S.; authorizing a home infusion therapy

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provider to be licensed as a nurse registry; deleting

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provisions related to Medicare reimbursement; amending s.

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400.471, F.S.; requiring an applicant for a home health

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agency license to submit to the Agency for Health Care

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Administration a business plan and evidence of contingency

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funding, and disclose other controlling ownership

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interests in health care entities; requiring certain

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standards in documentation demonstrating financial ability

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to operate; requiring an applicant for a new home health

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agency license to submit a surety bond or other security

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of a specified amount to the Agency for Health Care

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Administration; providing procedures for the agency with

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respect to making a claim against a surety bond or

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security; limiting the timing of receipt and the number of

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applications for a new home health agency license which

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the agency may accept each quarter; providing an exception

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under certain circumstances for a home health agency that

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is part of a retirement community; specifying a procedure

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for the agency to follow in selecting applications to

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process for a new home health agency license; providing

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for the future expiration of such provisions; prohibiting

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the agency from issuing an initial license to a home

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health agency licensure applicant located within 20 miles

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of a licensed home health agency that has common

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controlling interests; prohibiting the transfer of an

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application to another home health agency; requiring

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submission of an initial application to relocate a

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licensed home health to another geographic service area;

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imposing the burden of proof on an applicant to

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demonstrate that a factual determination made by the

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agency is not supported by a preponderance of the

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evidence; amending s. 400.474, F.S.; providing additional

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grounds under which the Agency for Health Care

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Administration may take  disciplinary action against a

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home health agency; creating s. 400.476, F.S.;

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establishing staffing requirements for home health

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agencies; reducing the number of home health agencies that

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an administrator or director of nursing may serve;

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requiring that an alternate administrator be designated in

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writing; limiting the period that a home health agency

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that provides skilled nursing care may operate without a

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director of nursing; requiring notification upon the

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termination and replacement of a director of nursing;

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requiring the Agency for Health Care Administration to

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take administrative enforcement action against a home

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health agency for noncompliance with the notification and

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staffing requirements for a director of nursing; exempting

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a home health agency that provides only physical,

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occupational, or speech therapy from requirements related

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to a director of nursing; providing training requirements

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for certified nursing assistants and home health aides;

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amending s. 400.484, F.S.; requiring the agency to conduct

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the first unannounced survey of a newly licensed home

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health agency within a specified period after issuing the

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license; requiring that the agency impose administrative

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fines for certain deficiencies; increasing the

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administrative fines imposed for certain deficiencies;

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amending s. 400.488, F.S.; deleting provisions authorizing

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the administration of medication to home health patients

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by unlicensed staff; providing for the delegation of

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nursing tasks as provided in ch. 464, F.S., and related

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rules; amending s. 400.491, F.S.; extending the period

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that a home health agency must retain records of the

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nonskilled care it provides; amending s. 400.497, F.S.;

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requiring that the Agency for Health Care Administration

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adopt rules related to standards for the director of

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nursing of a home health agency, requirements for a

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director of nursing to submit certified staff activity

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logs pursuant to an agency request, and quality assurance

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programs; amending s. 400.506, F.S.; providing training

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requirements for certified nursing assistants and home

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health aides referred for contract by a nurse registry;

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providing for the denial, suspension, or revocation of

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nurse registry license and fines for paying remuneration

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to certain entities in exchange for patient referrals or

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refusing fair remuneration in exchange for patient

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referrals; amending s. 400.518, F.S.; providing for a fine

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to be imposed against a home health agency that provides

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complimentary staffing to an assisted care community in

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exchange for patient referrals; amending s. 409.906, F.S.;

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requiring durable medical equipment providers enrolled in

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the Medicaid program to be accredited and have a physical

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business location that meets specified conditions;

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providing for exceptions of certain business location

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criteria; requiring a durable medical equipment provider

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enrolled in the Medicaid program to obtain a surety bond

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of a specified amount and for certain staff to undergo

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background screening; providing for exemptions from

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accreditation and the surety bond for specified durable

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medical equipment providers; requiring the Agency for

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Health Care Administration to review the process for prior

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authorization of home health agency visits and determine

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whether modifications to the process are necessary;

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requiring the agency to report to the Legislature on the

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feasibility of accessing the Medicare system to determine

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recipient eligibility for home health services; providing

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an effective date.

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

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     Section 1.  Section 400.462, Florida Statutes, is amended to

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read:

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     400.462  Definitions.--As used in this part, the term:

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     (1)  "Administrator" means a direct employee, as defined in

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subsection (9), who is. The administrator must be a licensed

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physician, physician assistant, or registered nurse licensed to

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practice in this state or an individual having at least 1 year of

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supervisory or administrative experience in home health care or

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in a facility licensed under chapter 395, under part II of this

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chapter, or under part I of chapter 429. An administrator may

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manage a maximum of five licensed home health agencies located

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within one agency service district or within an immediately

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contiguous county. If the home health agency is licensed under

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this chapter and is part of a retirement community that provides

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multiple levels of care, an employee of the retirement community

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may administer the home health agency and up to a maximum of four

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entities licensed under this chapter or chapter 429 that are

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owned, operated, or managed by the same corporate entity. An

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administrator shall designate, in writing, for each licensed

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entity, a qualified alternate administrator to serve during

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absences.

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     (2)  "Admission" means a decision by the home health agency,

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during or after an evaluation visit to the patient's home, that

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there is reasonable expectation that the patient's medical,

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nursing, and social needs for skilled care can be adequately met

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by the agency in the patient's place of residence. Admission

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includes completion of an agreement with the patient or the

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patient's legal representative to provide home health services as

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required in s. 400.487(1).

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     (3)  "Advanced registered nurse practitioner" means a person

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licensed in this state to practice professional nursing and

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certified in advanced or specialized nursing practice, as defined

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in s. 464.003.

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     (4)  "Agency" means the Agency for Health Care

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Administration.

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     (5)  "Certified nursing assistant" means any person who has

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been issued a certificate under part II of chapter 464. The

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licensed home health agency or licensed nurse registry shall

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ensure that the certified nursing assistant employed by or under

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contract with the home health agency or licensed nurse registry

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is adequately trained to perform the tasks of a home health aide

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in the home setting.

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     (6)  "Client" means an elderly, handicapped, or convalescent

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individual who receives companion services or homemaker services

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in the individual's home or place of residence.

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     (7)  "Companion" or "sitter" means a person who spends time

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with or cares for an elderly, handicapped, or convalescent

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individual and accompanies such individual on trips and outings

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and may prepare and serve meals to such individual. A companion

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may not provide hands-on personal care to a client.

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     (8)  "Department" means the Department of Children and

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Family Services.

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     (9)  "Direct employee" means an employee for whom one of the

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following entities pays withholding taxes: a home health agency;

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a management company that has a contract to manage the home

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health agency on a day-to-day basis; or an employee leasing

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company that has a contract with the home health agency to handle

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the payroll and payroll taxes for the home health agency.

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     (10)  "Director of nursing" means a registered nurse who is

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a direct employee, as defined in subsection (9), of the agency

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and who is a graduate of an approved school of nursing and is

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licensed in this state; who has at least 1 year of supervisory

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experience as a registered nurse; and who is responsible for

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overseeing the professional nursing and home health aid delivery

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of services of the agency. A director of nursing may be the

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director of a maximum of five licensed home health agencies

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operated by a related business entity and located within one

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agency service district or within an immediately contiguous

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county. If the home health agency is licensed under this chapter

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and is part of a retirement community that provides multiple

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levels of care, an employee of the retirement community may serve

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as the director of nursing of the home health agency and of up to

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four entities licensed under this chapter or chapter 429 which

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are owned, operated, or managed by the same corporate entity.

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     (11) "Fair market value" means the value in arms length

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transactions, consistent with the price that an asset would bring

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as the result of bona fide bargaining between well-informed

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buyers and sellers who are not otherwise in a position to

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generate business for the other party, or the compensation that

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would be included in a service agreement as the result of bona

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fide bargaining between well-informed parties to the agreement

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who are not otherwise in a position to generate business for the

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other party, on the date of acquisition of the asset or at the

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time of the service agreement.

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     (12)(11) "Home health agency" means an organization that

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provides home health services and staffing services.

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     (13)(12) "Home health agency personnel" means persons who

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are employed by or under contract with a home health agency and

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enter the home or place of residence of patients at any time in

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the course of their employment or contract.

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     (14)(13) "Home health services" means health and medical

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services and medical supplies furnished by an organization to an

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individual in the individual's home or place of residence. The

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term includes organizations that provide one or more of the

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following:

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     (a)  Nursing care.

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     (b)  Physical, occupational, respiratory, or speech therapy.

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     (c)  Home health aide services.

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     (d)  Dietetics and nutrition practice and nutrition

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counseling.

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     (e)  Medical supplies, restricted to drugs and biologicals

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prescribed by a physician.

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     (15)(14) "Home health aide" means a person who is trained

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or qualified, as provided by rule, and who provides hands-on

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personal care, performs simple procedures as an extension of

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therapy or nursing services, assists in ambulation or exercises,

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or assists in administering medications as permitted in rule and

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for which the person has received training established by the

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agency under s. 400.497(1). The licensed home health agency or

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licensed nurse registry shall ensure that the home health aide

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employed by or under contract with the home health agency or

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licensed nurse registry is adequately trained to perform the

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tasks of a home health aide in the home setting.

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     (16)(15) "Homemaker" means a person who performs household

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chores that include housekeeping, meal planning and preparation,

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shopping assistance, and routine household activities for an

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elderly, handicapped, or convalescent individual. A homemaker may

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not provide hands-on personal care to a client.

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     (17)(16) "Home infusion therapy provider" means an

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organization that employs, contracts with, or refers a licensed

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professional who has received advanced training and experience in

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intravenous infusion therapy and who administers infusion therapy

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to a patient in the patient's home or place of residence.

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     (18)(17) "Home infusion therapy" means the administration

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of intravenous pharmacological or nutritional products to a

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patient in his or her home.

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     (19) "Immediate family member" means a husband or wife; a

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birth or adoptive parent, child, or sibling; a stepparent,

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stepchild, stepbrother, or stepsister; a father-in-law, mother-

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in-law, son-in-law, daughter-in-law, brother-in-law, or sister-

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in-law; a grandparent or grandchild; or a spouse of a grandparent

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or grandchild.

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     (20) "Medical director" means a physician who is a

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volunteer with, or who receives remuneration from, a home health

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agency.

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     (21)(18) "Nurse registry" means any person that procures,

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offers, promises, or attempts to secure health-care-related

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contracts for registered nurses, licensed practical nurses,

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certified nursing assistants, home health aides, companions, or

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homemakers, who are compensated by fees as independent

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contractors, including, but not limited to, contracts for the

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provision of services to patients and contracts to provide

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private duty or staffing services to health care facilities

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licensed under chapter 395, this chapter, or chapter 429 or other

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business entities.

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     (22)(19) "Organization" means a corporation, government or

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governmental subdivision or agency, partnership or association,

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or any other legal or commercial entity, any of which involve

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more than one health care professional discipline; a health care

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professional and a home health aide or certified nursing

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assistant; more than one home health aide; more than one

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certified nursing assistant; or a home health aide and a

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certified nursing assistant. The term does not include an entity

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that provides services using only volunteers or only individuals

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related by blood or marriage to the patient or client.

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     (23)(20) "Patient" means any person who receives home

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health services in his or her home or place of residence.

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     (24)(21) "Personal care" means assistance to a patient in

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the activities of daily living, such as dressing, bathing,

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eating, or personal hygiene, and assistance in physical transfer,

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ambulation, and in administering medications as permitted by

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rule.

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     (25)(22) "Physician" means a person licensed under chapter

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458, chapter 459, chapter 460, or chapter 461.

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     (26)(23) "Physician assistant" means a person who is a

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graduate of an approved program or its equivalent, or meets

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standards approved by the boards, and is licensed to perform

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medical services delegated by the supervising physician, as

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defined in s. 458.347 or s. 459.022.

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     (27) "Remuneration" means any payment or other benefit made

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directly or indirectly, overtly or covertly, in cash or in kind.

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     (28)(24) "Skilled care" means nursing services or

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therapeutic services required by law to be delivered by a health

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care professional who is licensed under part I of chapter 464;

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part I, part III, or part V of chapter 468; or chapter 486 and

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who is employed by or under contract with a licensed home health

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agency or is referred by a licensed nurse registry.

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     (29)(25) "Staffing services" means services provided to a

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health care facility, school, or other business entity on a

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temporary or school-year basis pursuant to a written contract by

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licensed health care personnel and by certified nursing

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assistants and home heath aides who are employed by, or work

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under the auspices of, a licensed home health agency or who are

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registered with a licensed nurse registry. Staffing services may

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be provided anywhere within the state.

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     Section 2.  Subsection (3) of section 400.464, Florida

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Statutes, is amended to read:

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400.464  Home Health agencies to be licensed; expiration of

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license; exemptions; unlawful acts; penalties.--

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     (3) A Any home infusion therapy provider must shall be

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licensed as a home health agency or nurse registry. Any infusion

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therapy provider currently authorized to receive Medicare

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reimbursement under a DME - Part B Provider number for the

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provision of infusion therapy shall be licensed as a non

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certified home health agency. Such a provider shall continue to

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receive that specified Medicare reimbursement without being

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certified so long as the reimbursement is limited to those items

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authorized pursuant to the DME - Part B Provider Agreement and

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the agency is licensed in compliance with the other provisions of

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this part.

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     Section 3.  Section 400.471, Florida Statutes, is amended to

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read:

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     400.471 Application for license; fee; bond; limitation on

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applications accepted.--

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     (1)  Each applicant for licensure must comply with all

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provisions of this part and part II of chapter 408.

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     (2)  In addition to the requirements of part II of chapter

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408, the initial applicant must file with the application

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satisfactory proof that the home health agency is in compliance

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with this part and applicable rules, including:

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     (a)  A listing of services to be provided, either directly

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by the applicant or through contractual arrangements with

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existing providers.

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     (b)  The number and discipline of professional staff to be

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employed.

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     (c)  Completion of questions concerning volume data on the

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renewal application as determined by rule.

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     (d) A business plan, signed by the applicant, which details

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the home health agency's methods to obtain patients and its plan

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to recruit and maintain staff.

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     (e) Evidence of contingency funding equal to 1 month's

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average operating expense over the first year of operation.

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     (f) A balance sheet, income and expense statement, and

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statement of cash flows for the first 2 years of operation which

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provide evidence of having sufficient assets, credit, and

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projected revenues to cover liabilities and expenses. The

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applicant has demonstrated financial ability to operate if the

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applicant's assets, credit, and projected revenues meet or exceed

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projected liabilities and expenses. An applicant may not project

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an operating margin for any month in the first year of operation

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of 15 percent or greater. All documents required under this

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paragraph must be prepared in accordance with generally accepted

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accounting principles and compiled and signed by a certified

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public accountant.

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     (g) All other ownership interests in health care entities

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for each controlling interest, as defined in part II of chapter

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408.

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     (3)  In addition to the requirements of s. 408.810, the home

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health agency must also obtain and maintain the following

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insurance coverage in an amount of not less than $250,000 per

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claim, and the home health agency must submit proof of coverage

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with an initial application for licensure and with each

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application for license renewal:

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     (a)  Malpractice insurance as defined in s. 624.605(1)(k).

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     (b)  Liability insurance as defined in s. 624.605(1)(b).

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     (4)  The agency shall accept, in lieu of its own periodic

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licensure survey, submission of the survey of an accrediting

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organization that is recognized by the agency if the

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accreditation of the licensed home health agency is not

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provisional and if the licensed home health agency authorizes

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release of, and the agency receives the report of, the

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accrediting organization.

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     (5)  In accordance with s. 408.805, an applicant or licensee

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shall pay a fee for each license application submitted under this

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part, part II of chapter 408, and applicable rules. The amount of

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the fee shall be established by rule and shall be set at an

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amount that is sufficient to cover the agency's costs in carrying

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out its responsibilities under this part, but not to exceed

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$2,000 per biennium. However, state, county, or municipal

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governments applying for licenses under this part are exempt from

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the payment of license fees.

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     (6)  The agency may not issue a license designated as

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certified to a home health agency that fails to satisfy the

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requirements of a Medicare certification survey from the agency.

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     (7) An applicant for a new home health agency license must

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submit a surety bond of $50,000, or other equivalent means of

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security acceptable to the agency, such as an irrevocable letter

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of credit or a deposit in a trust account or financial

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institution, payable to the Agency for Health Care

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Administration. A surety bond or other equivalent means of

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security must be valid from initial licensure until the end of

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the first license-renewal period. The purpose of this bond is to

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secure payment of any administrative penalties imposed by the

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agency and any fees and costs incurred by the agency regarding

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the home health agency license which are authorized under state

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law and which the licensee fails to pay 30 days after the fine or

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costs become final. The agency may make a claim against the

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surety bond or security until the later of:

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     (a) One year after the license ceases to be valid if the

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license is not renewed for a second biennial period;

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     (b) One year after the license has been renewed a second

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time; or

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     (c) Sixty days after any administrative or legal

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proceeding, including any appeal, is concluded involving an

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administrative penalty, fees, or costs for an act or omission

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that occurred at any time during the first 4 years after the

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license was initially issued.

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     (8)(a) The agency may accept for processing for a new home

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health agency license only the following number of applications

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quarterly, as determined using the number of licensed home health

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agencies in each geographic service area on June 1, 2008, and the

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Florida Population Estimates for Counties and Municipalities,

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April 1, 2007, as published by the Office of Economic and

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Demographic Research of the Legislature:

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     1. Five for each geographic service area in which the

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number of residents over the age of 64 per number of licensed

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home health agencies in that geographic service area is between

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2,000 and 2,999;

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     2. Four for each geographic service area in which the

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number of residents over the age of 64 per number of licensed

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home health agencies in that geographic service area is between

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1,000 and 1,999; and

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     3. Three for each geographic service area in which the

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number of residents over the age of 64 per number of licensed

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home health agencies in that geographic service area is between 0

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and 999.

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However, an application for a new home health agency license that

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is part of a retirement community providing multiple levels of

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care and that will provide home health services exclusively to

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residents of that facility is not subject to the quarterly

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limitation and may not be counted as a new application for

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purposes of the quarterly limitation. If the home health agency

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provides home health services to persons outside that facility,

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the agency shall impose a moratorium on the license in accordance

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with s. 408.814 and revoke the home health agency license. The

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home health agency may reapply for a new home health agency

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license and is subject to the limits on the agency's acceptance

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of new applications.

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     (b) The agency shall accept applications for a new home

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health agency license only during the first 5 business days of a

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calendar quarter. Applications for a new home health agency

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license received during this period, except an application for a

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new home health agency license that is part of a retirement

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community providing multiple levels of care and that will provide

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home health services exclusively to residents of that facility,

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must be grouped according to the geographic service area in which

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the home health agency is to be located. During the first 6

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through 10 business days of the calendar quarter, the agency

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shall use a lottery system to select the number of applications

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authorized in paragraph (a) to be accepted for processing for

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each geographic service area.

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     (c) Notwithstanding ss. 120.60 or 408.806(3), the agency

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shall return to the sender all applications and fees for a new

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home health agency license which were received:

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     1. And not accepted for processing pursuant to the lottery-

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selection process set forth in paragraph (b); or

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     2. Before or after the first 5 business days of a calendar

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quarter.

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     (d) This subsection expires July 1, 2011.

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     (9) The agency may not issue an initial license to a home

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health agency licensure applicant if the applicant shares common

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controlling interests with another licensed home health agency

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that is located within 20 miles of the applicant. The agency must

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return the application and fees to the applicant.

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     (10) An application for a home health agency license may

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not be transferred to another home health agency or controlling

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interest prior to issuance of the license.

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     (11) A licensed home health agency that seeks to relocate

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to a different geographic service area not listed on its license

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must submit an initial application for a home health agency

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license for the new location.

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     (12) When an applicant alleges that a factual determination

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made by the agency is incorrect, the burden of proof is on the

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applicant to demonstrate that such determination is, in light of

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the total record, not supported by the preponderance of the

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evidence.

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     Section 4.  Section 400.474, Florida Statutes, is amended to

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read:

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     400.474  Administrative penalties.--

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     (1)  The agency may deny, revoke, and suspend a license and

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impose an administrative fine in the manner provided in chapter

467

120.

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     (2)  Any of the following actions by a home health agency or

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its employee is grounds for disciplinary action by the agency:

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     (a)  Violation of this part, part II of chapter 408, or of

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applicable rules.

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     (b)  An intentional, reckless, or negligent act that

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materially affects the health or safety of a patient.

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     (c)  Knowingly providing home health services in an

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unlicensed assisted living facility or unlicensed adult family-

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care home, unless the home health agency or employee reports the

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unlicensed facility or home to the agency within 72 hours after

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providing the services.

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     (d) Preparing or maintaining fraudulent patient records,

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such as, but not limited to, charting ahead, recording vital

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signs or symptoms that were not personally obtained or observed

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by the home health agency's staff at the time indicated,

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borrowing patients or patient records from other home health

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agencies to pass a survey or inspection, or falsifying

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signatures.

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     (e) Failing to provide at least one service directly to a

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patient for a period of 60 days.

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     (3) The agency shall impose a fine of $1,000 against a home

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health agency that demonstrates a pattern of falsifying:

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     (a) Documents of training for home health aides or

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certified nursing assistants; or

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     (b) Health statements for staff providing direct care to

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patients.

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A pattern may be demonstrated by a showing of at least three

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fraudulent entries or documents. The fine shall be imposed for

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each fraudulent document or, if multiple staff members are

498

included on one document, for each fraudulent entry on the

499

document.

500

     (4) The agency shall impose a fine of $5,000 against a home

501

health agency that demonstrates a pattern of billing any payor

502

for services not provided. A pattern may be demonstrated by a

503

showing of at least three billings for services not provided

504

within a 12-month period. The fine must be imposed for each

505

incident that is falsely billed. The agency may also:

506

     (a) Require payback of all funds;

507

     (b) Revoke the license; or

508

     (c) Issue a moratorium in accordance with s. 408.814.

509

     (5) The agency shall impose a fine of $5,000 against a home

510

health agency that demonstrates a pattern of failing to provide a

511

service specified in the home health agency's written agreement

512

with a patient or the patient's legal representative, or the plan

513

of care for that patient, unless a reduction in service is

514

mandated by Medicare, Medicaid, or a state program or as provided

515

in s. 400.492(3). A pattern may be demonstrated by a showing of

516

at least three incidences, regardless of the patient or service,

517

where the home health agency did not provide a service specified

518

in a written agreement or plan of care during a 3-month period.

519

The agency shall impose the fine for each occurrence. The agency

520

may also impose additional administrative fines under s. 400.484

521

for the direct or indirect harm to a patient, or deny, revoke, or

522

suspend the license of the home health agency for a pattern of

523

failing to provide a service specified in the home health

524

agency's written agreement with a patient or the plan of care for

525

that patient.

526

     (6) The agency may deny, revoke, or suspend the license of

527

a home health agency and shall impose a fine of $5,000 against a

528

home health agency that:

529

     (a) Gives remuneration for staffing services to:

530

     1. Another home health agency with which it has formal or

531

informal patient-referral transactions or arrangements; or

532

     2. A health services pool with which it has formal or

533

informal patient-referral transactions or arrangements,

534

535

unless the home health agency has activated its comprehensive

536

emergency management plan in accordance with s. 400.492.

537

     (b) Provides services to residents in an assisted living

538

facility for which the home health agency does not receive fair

539

market value remuneration.

540

     (c) Provides staffing to an assisted living facility for

541

which the home health agency does not receive fair market value

542

remuneration.

543

     (d) Fails to provide the agency, upon request, with copies

544

of all contracts with assisted living facilities which were

545

executed within 5 years before the request.

546

     (e) Gives remuneration to a case manager, discharge

547

planner, facility-based staff member, or third-party vendor who

548

is involved in the discharge-planning process of a facility

549

licensed under chapter 395 or this chapter from whom the home

550

health agency receives referrals.

551

     (f) Fails to submit to the agency, within 10 days after the

552

end of each calendar quarter, a written report that includes the

553

following data based on data as it existed on the last day of the

554

quarter:

555

     1. The number of insulin-dependent diabetic patients

556

receiving insulin-injection services from the home health agency;

557

     2. The number of patients receiving both home health

558

services from the home health agency and hospice services;

559

     3. The number of patients receiving home health services

560

from that home health agency; and

561

     4. The names and license numbers of nurses whose primary

562

job responsibility is to provide home health services to patients

563

and who received remuneration from the home health agency in

564

excess of $25,000 during the calendar quarter.

565

     (g) Gives cash, or its equivalent, to a Medicare or

566

Medicaid beneficiary.

567

     (h) Has more than one medical director contract in effect

568

at one time or more than one medical director contract and one

569

contract with a physician-specialist whose services are mandated

570

for the home health agency in order to qualify to participate in

571

a federal or state health care program at one time.

572

     (i) Gives remuneration to a physician without a medical

573

director contract being in effect. The contract must:

574

     1. Be in writing and signed by both parties;

575

     2. Provide for remuneration that is at fair market value

576

for an hourly rate, which must be supported by invoices submitted

577

by the medical director describing the work performed, the dates

578

on which that work was performed, and the duration of that work;

579

and

580

     3. Be for a term of at least 1 year.

581

582

The hourly rate specified in the contract may not be increased

583

during the term of the contract. The home health agency may not

584

execute a subsequent contract with that physician which has an

585

increased hourly rate and covers any portion of the term that was

586

in the original contract.

587

     (j) Gives remuneration to:

588

     1. A physician, and the home health agency is in violation

589

of paragraph (h) or paragraph (i);

590

     2. A member of the physician's office staff; or

591

     3. An immediate family member of the physician,

592

593

if the home health agency has received a patient referral in the

594

preceding 12 months from that physician or physician's office

595

staff.

596

     (k) Fails to provide to the agency, upon request, copies of

597

all contracts with a medical director which were executed within

598

5 years before the request.

599

     (7)(3)(a) In addition to the requirements of s. 408.813,

600

any person, partnership, or corporation that violates s. 408.812

601

or s. 408.813 and that previously operated a licensed home health

602

agency or concurrently operates both a licensed home health

603

agency and an unlicensed home health agency commits a felony of

604

the third degree punishable as provided in s. 775.082, s.

605

775.083, or s. 775.084.

606

     (b)  If any home health agency is found to be operating

607

without a license and that home health agency has received any

608

government reimbursement for services, the agency shall make a

609

fraud referral to the appropriate government reimbursement

610

program.

611

     Section 5.  Section 400.476, Florida Statutes, is created to

612

read:

613

     400.476 Staffing requirements; notifications; limitations

614

on staffing services.--

615

     (1) ADMINISTRATOR.--

616

     (a) An administrator may manage only one home health

617

agency, except that an administrator may manage up to five home

618

health agencies if all five home health agencies have identical

619

controlling interests as defined in s. 408.803 and are located

620

within one agency geographic service area or within an

621

immediately contiguous county. If the home health agency is

622

licensed under this chapter and is part of a retirement community

623

that provides multiple levels of care, an employee of the

624

retirement community may administer the home health agency and up

625

to a maximum of four entities licensed under this chapter or

626

chapter 429 which all have identical controlling interests as

627

defined in s. 408.803. An administrator shall designate, in

628

writing, for each licensed entity, a qualified alternate

629

administrator to serve during the administrator's absence.

630

     (b) An administrator of a home health agency who is a

631

licensed physician, physician assistant, or registered nurse

632

licensed to practice in this state may also be the director of

633

nursing for a home health agency. An administrator may serve as a

634

director of nursing only for the number of entities authorized in

635

subsection (2) if there are 10 or fewer full-time equivalent

636

employees and contracted personnel in each home health agency.

637

     (2) DIRECTOR OF NURSING.--

638

     (a) A director of nursing may be the director of nursing

639

for:

640

     1. Up to two licensed home health agencies if the agencies

641

have identical controlling interests as defined in s. 408.803 and

642

are located within one agency geographic service area or within

643

an immediately contiguous county; or

644

     2. Up to five licensed home health agencies if:

645

     a. All of the home health agencies have identical

646

controlling interests as defined in s. 408.803;

647

     b. All of the home health agencies are located within one

648

agency geographic service area or within an immediately

649

contiguous county; and

650

     c. Each home health agency has a registered nurse who meets

651

the qualifications of a director of nursing and who has a written

652

delegation from the director of nursing to serve as the director

653

of nursing for that home health agency when the director of

654

nursing is not present.

655

656

If a home health agency licensed under this chapter is part of a

657

retirement community that provides multiple levels of care, an

658

employee of the retirement community may serve as the director of

659

nursing of the home health agency and up to a maximum of four

660

entities, other than home health agencies, licensed under this

661

chapter or chapter 429 which all have identical controlling

662

interests as defined in s. 408.803.

663

     (b) A home health agency that provides skilled nursing care

664

may not operate for more than 30 calendar days without a director

665

of nursing. A home health agency that provides skilled nursing

666

care and the director of nursing of a home health agency must

667

notify the agency within 10 business days after termination of

668

the services of the director of nursing for the home health

669

agency. A home health agency that provides skilled nursing care

670

must notify the agency of the identity and qualifications of the

671

new director of nursing within 10 days after the new director is

672

hired. If a home health agency that provides skilled nursing care

673

operates for more than 30 calendar days without a director of

674

nursing, the home health agency commits a class II deficiency. In

675

addition to the fine for a class II deficiency, the agency may

676

issue a moratorium in accordance with s. 408.814 or revoke the

677

license. The agency shall fine a home health agency that fails to

678

notify the agency as required in this paragraph $1,000 for the

679

first violation and $2,000 for a repeat violation. The agency may

680

not take administrative action against a home health agency if

681

the director of nursing fails to notify the department upon

682

termination of services as the director of nursing for the home

683

health agency.

684

     (c) A home health agency that provides only physical,

685

occupational, or speech therapy is not required to have a

686

director of nursing and is exempt from paragraph (b).

687

     (3) TRAINING.--A home health agency shall ensure that each

688

certified nursing assistant employed by or under contract with

689

the home health agency and each home health aide employed by or

690

under contract with the home health agency is adequately trained

691

to perform the tasks of a home health aide in the home setting.

692

     (4) STAFFING.--Staffing services may be provided anywhere

693

within the state.

694

     Section 6.  Section 400.484, Florida Statutes, is amended to

695

read:

696

     400.484  Right of inspection; deficiencies; fines.--

697

     (1)  In addition to the requirements of s. 408.811, the

698

agency may make such inspections and investigations as are

699

necessary in order to determine the state of compliance with this

700

part, part II of chapter 408, and applicable rules. The agency

701

shall conduct an unannounced survey of each home health agency

702

within 15 months after issuing a new license to the home health

703

agency.

704

     (2)  The agency shall impose fines for various classes of

705

deficiencies in accordance with the following schedule:

706

     (a)  A class I deficiency is any act, omission, or practice

707

that results in a patient's death, disablement, or permanent

708

injury, or places a patient at imminent risk of death,

709

disablement, or permanent injury. Upon finding a class I

710

deficiency, the agency shall may impose an administrative fine in

711

the amount of $15,000 $5,000 for each occurrence and each day

712

that the deficiency exists.

713

     (b)  A class II deficiency is any act, omission, or practice

714

that has a direct adverse effect on the health, safety, or

715

security of a patient. Upon finding a class II deficiency, the

716

agency shall may impose an administrative fine in the amount of

717

$5,000 $1,000 for each occurrence and each day that the

718

deficiency exists.

719

     (c)  A class III deficiency is any act, omission, or

720

practice that has an indirect, adverse effect on the health,

721

safety, or security of a patient. Upon finding an uncorrected or

722

repeated class III deficiency, the agency shall may impose an

723

administrative fine not to exceed $1,000 $500 for each occurrence

724

and each day that the uncorrected or repeated deficiency exists.

725

     (d)  A class IV deficiency is any act, omission, or practice

726

related to required reports, forms, or documents which does not

727

have the potential of negatively affecting patients. These

728

violations are of a type that the agency determines do not

729

threaten the health, safety, or security of patients. Upon

730

finding an uncorrected or repeated class IV deficiency, the

731

agency shall may impose an administrative fine not to exceed $500

732

$200 for each occurrence and each day that the uncorrected or

733

repeated deficiency exists.

734

     (3)  In addition to any other penalties imposed pursuant to

735

this section or part, the agency may assess costs related to an

736

investigation that results in a successful prosecution, excluding

737

costs associated with an attorney's time.

738

     Section 7.  Section 400.488, Florida Statutes, is amended to

739

read:

740

     400.488 Nurse delegation Assistance with self-

741

administration of medication.--A home health agency nurse may

742

delegate nursing tasks as provided in chapter 464 and related

743

rules.

744

     (1) For purposes of this section, the term:

745

     (a) "Informed consent" means advising the patient, or the

746

patient's surrogate, guardian, or attorney in fact, that the

747

patient may be receiving assistance with self-administration of

748

medication from an unlicensed person.

749

     (b) "Unlicensed person" means an individual not currently

750

licensed to practice nursing or medicine who is employed by or

751

under contract to a home health agency and who has received

752

training with respect to assisting with the self-administration

753

of medication as provided by agency rule.

754

     (2) Patients who are capable of self-administering their

755

own medications without assistance shall be encouraged and

756

allowed to do so. However, an unlicensed person may, consistent

757

with a dispensed prescription's label or the package directions

758

of an over-the-counter medication, assist a patient whose

759

condition is medically stable with the self-administration of

760

routine, regularly scheduled medications that are intended to be

761

self-administered. Assistance with self-medication by an

762

unlicensed person may occur only upon a documented request by,

763

and the written informed consent of, a patient or the patient's

764

surrogate, guardian, or attorney in fact. For purposes of this

765

section, self-administered medications include both legend and

766

over-the-counter oral dosage forms, topical dosage forms, and

767

topical ophthalmic, otic, and nasal dosage forms, including

768

solutions, suspensions, sprays, and inhalers.

769

     (3) Assistance with self-administration of medication

770

includes:

771

     (a) Taking the medication, in its previously dispensed,

772

properly labeled container, from where it is stored and bringing

773

it to the patient.

774

     (b) In the presence of the patient, reading the label,

775

opening the container, removing a prescribed amount of medication

776

from the container, and closing the container.

777

     (c) Placing an oral dosage in the patient's hand or placing

778

the dosage in another container and helping the patient by

779

lifting the container to his or her mouth.

780

     (d) Applying topical medications.

781

     (e) Returning the medication container to proper storage.

782

     (f) Keeping a record of when a patient receives assistance

783

with self-administration under this section.

784

     (4) Assistance with self-administration does not include:

785

     (a) Mixing, compounding, converting, or calculating

786

medication doses, except for measuring a prescribed amount of

787

liquid medication or breaking a scored tablet or crushing a

788

tablet as prescribed.

789

     (b) The preparation of syringes for injection or the

790

administration of medications by any injectable route.

791

     (c) Administration of medications through intermittent

792

positive pressure breathing machines or a nebulizer.

793

     (d) Administration of medications by way of a tube inserted

794

in a cavity of the body.

795

     (e) Administration of parenteral preparations.

796

     (f) Irrigations or debriding agents used in the treatment

797

of a skin condition.

798

     (g) Rectal, urethral, or vaginal preparations.

799

     (h) Medications ordered by the physician or health care

800

professional with prescriptive authority to be given "as needed,"

801

unless the order is written with specific parameters that

802

preclude independent judgment on the part of the unlicensed

803

person, and at the request of a competent patient.

804

     (i) Medications for which the time of administration, the

805

amount, the strength of dosage, the method of administration, or

806

the reason for administration requires judgment or discretion on

807

the part of the unlicensed person.

808

     (5) Assistance with the self-administration of medication

809

by an unlicensed person as described in this section does not

810

constitute administration as defined in s. 465.003.

811

     (6) The agency may by rule establish procedures and

812

interpret terms as necessary to administer this section.

813

     Section 8.  Subsection (2) of section 400.491, Florida

814

Statutes, is amended to read:

815

     400.491  Clinical records.--

816

     (2)  The home health agency must maintain for each client

817

who receives nonskilled care a service provision plan. Such

818

records must be maintained by the home health agency for 3 years

819

1 year following termination of services.

820

     Section 9.  Present subsections (5), (6), (7), and (8) of

821

section 400.497, Florida Statutes, are renumbered as subsections

822

(6), (7), (8), and (9), respectively, and a new subsection (5) is

823

added to that section, to read:

824

     400.497  Rules establishing minimum standards.--The agency

825

shall adopt, publish, and enforce rules to implement part II of

826

chapter 408 and this part, including, as applicable, ss. 400.506

827

and 400.509, which must provide reasonable and fair minimum

828

standards relating to:

829

     (5) Oversight by the director of nursing. The agency shall

830

develop rules related to:

831

     (a) Standards that address oversight responsibilities by

832

the director of nursing of skilled nursing and personal care

833

services provided by the home health agency's staff;

834

     (b) Requirements for a director of nursing to provide to

835

the agency, upon request, a certified daily report of the home

836

health services provided by a specified direct employee or

837

contracted staff member on behalf of the home health agency. The

838

agency may request a certified daily report only for a period not

839

to exceed 2 years prior to the date of the request; and

840

     (c) A quality assurance program for home health services

841

provided by the home health agency.

842

     Section 10.  Paragraph (a) of subsection (6) of section

843

400.506, Florida Statutes, is amended, present subsections (15)

844

and (16) of that section are renumbered as subsections (16) and

845

(17), respectively, and a new subsection (15) is added to that

846

section, to read:

847

     400.506  Licensure of nurse registries; requirements;

848

penalties.--

849

     (6)(a)  A nurse registry may refer for contract in private

850

residences registered nurses and licensed practical nurses

851

registered and licensed under part I of chapter 464, certified

852

nursing assistants certified under part II of chapter 464, home

853

health aides who present documented proof of successful

854

completion of the training required by rule of the agency, and

855

companions or homemakers for the purposes of providing those

856

services authorized under s. 400.509(1). A licensed nurse

857

registry shall ensure that each certified nursing assistant

858

referred for contract by the nurse registry and each home health

859

aide referred for contract by the nurse registry is adequately

860

trained to perform the tasks of a home health aide in the home

861

setting. Each person referred by a nurse registry must provide

862

current documentation that he or she is free from communicable

863

diseases.

864

     (15)(a) The agency may deny, suspend, or revoke the

865

license of a nurse registry and shall impose a fine of $5,000

866

against a nurse registry that:

867

     1. Provides services to residents in an assisted living

868

facility for which the nurse registry does not receive fair

869

market value remuneration.

870

     2. Provides staffing to an assisted living facility for

871

which the nurse registry does not receive fair market value

872

remuneration.

873

     3. Fails to provide the agency, upon request, with copies

874

of all contracts with assisted living facilities which were

875

executed within the last 5 years.

876

     4. Gives remuneration to a case manager, discharge

877

planner, facility-based staff member, or third-party vendor who

878

is involved in the discharge-planning process of a facility

879

licensed under chapter 395 or this chapter and from whom the

880

nurse registry receives referrals.

881

     5. Gives remuneration to a physician, a member of the

882

physician's office staff, or an immediate family member of the

883

physician, and the nurse registry received a patient referral

884

in the last 12 months from that physician or the physician's

885

office staff.

886

     6. Gives remuneration to an insurance agent, a member of

887

the insurance agent's office staff, or an immediate family

888

member of the insurance agent, and the nurse registry received

889

a patient referral within the last 12 months from that agent or

890

the agent's office staff.

891

     (b) The agency shall also impose an administrative fine

892

of $15,000 if the nurse registry refers nurses, certified

893

nursing assistants, home health aides, or other staff without

894

charge to a facility licensed under chapter 429 in return for

895

patient referrals from the facility.

896

     (c) The proceeds of all fines collected under this

897

subsection shall be deposited into the Health Care Trust Fund.

898

     Section 11.  Subsection (4) is added to section 400.518,

899

Florida Statutes, to read:

900

     400.518  Prohibited referrals to home health agencies.--

901

     (4) The agency shall impose an administrative fine of

902

$15,000 if a home health agency provides nurses, certified

903

nursing assistants, home health aides, or other staff without

904

charge to a facility licensed under chapter 429 in return for

905

patient referrals from the facility. The proceeds of such fines

906

shall be deposited into the Health Care Trust Fund.

907

     Section 12.  Subsection (10) of section 409.906, Florida

908

Statutes, is amended to read:

909

409.906  Optional Medicaid services.--Subject to specific

910

appropriations, the agency may make payments for services which

911

are optional to the state under Title XIX of the Social Security

912

Act and are furnished by Medicaid providers to recipients who are

913

determined to be eligible on the dates on which the services were

914

provided. Any optional service that is provided shall be provided

915

only when medically necessary and in accordance with state and

916

federal law. Optional services rendered by providers in mobile

917

units to Medicaid recipients may be restricted or prohibited by

918

the agency. Nothing in this section shall be construed to prevent

919

or limit the agency from adjusting fees, reimbursement rates,

920

lengths of stay, number of visits, or number of services, or

921

making any other adjustments necessary to comply with the

922

availability of moneys and any limitations or directions provided

923

for in the General Appropriations Act or chapter 216. If

924

necessary to safeguard the state's systems of providing services

925

to elderly and disabled persons and subject to the notice and

926

review provisions of s. 216.177, the Governor may direct the

927

Agency for Health Care Administration to amend the Medicaid state

928

plan to delete the optional Medicaid service known as

929

"Intermediate Care Facilities for the Developmentally Disabled."

930

Optional services may include:

931

(10)  DURABLE MEDICAL EQUIPMENT.--The agency may authorize

932

and pay for certain durable medical equipment and supplies

933

provided to a Medicaid recipient as medically necessary. As of

934

January 1, 2009, the agency shall limit payment for durable

935

medical equipment and supplies to providers who meet all of the

936

criteria in this subsection.

937

     (a) Durable medical equipment and medical supply providers

938

must be accredited by an Agency for Health Care Administration

939

approved accreditation organization specifically designated as a

940

durable medical equipment accrediting organization. The provider

941

must be re-accredited periodically and is subject to unannounced

942

reviews by the accrediting organization.

943

     (b) Durable medical equipment and medical supply providers

944

must have a physical business location with durable medical

945

equipment and medical supplies on site and must be readily

946

available to the general public. The physical business location

947

must meet the following criteria:

948

     1. The location must maintain a substantial inventory that

949

is readily available and sufficient to meet the needs of the

950

durable medical equipment business location's customers;

951

     2. The location must be clearly identified with signage

952

that can be read from 20 feet away which readily identifies the

953

business location as a business that furnishes durable medical

954

equipment, medical supplies, or both;

955

     3. The location must have a functional landline business

956

telephone;

957

     4. The physical business location may not be located within

958

or at the same numbered street address as another Medicaid-

959

enrolled durable medical equipment and medical supply provider or

960

an enrolled Medicaid pharmacy that is also enrolled as a durable

961

medical equipment provider. A location within or at the same

962

numbered street address includes unique suite or storefront

963

numbers assigned by the United States Postal Service or the

964

building's owner;

965

     5. For out-of-state providers, the physical business

966

location must be no more than 50 miles from the Florida state

967

line. Exceptions may be made for manufacturers of a specific type

968

of unique durable medical equipment that is not otherwise

969

available from other durable medical equipment distributors or

970

providers located within the state; and

971

     6. Unless the provider is an out-of-state manufacturer

972

business that is located more than 50 miles from the Florida

973

state line and is excepted from sub-paragraph 5., the location

974

must be easily accessible to the public during normal, scheduled,

975

and posted business hours and must operate no less than 5 hours a

976

day, and no less than 5 days a week, with the exception of

977

scheduled and posted holidays.

978

     (c) Durable medical equipment and medical supply providers

979

must obtain a $50,000 surety bond for each provider location, up

980

to a maximum of five bonds statewide or an aggregate bond of

981

$250,000 statewide as identified per federal employer

982

identification number. Providers who qualify for a statewide or

983

an aggregate bond must identify all of their locations in any

984

enrollment application or bond renewal as a Medicaid durable

985

medical equipment and medical supply provider. Each provider

986

location's surety bond must be renewed annually and the provider

987

must submit proof of renewal, even if the original bond is a

988

continuous bond.

989

     (d) A level 2 background screening, as described in s.

990

435.04, is required as a condition of employment for provider

991

staff in direct contact with and providing direct services to

992

recipients of durable medical equipment and medical supplies in

993

their homes. This requirement includes, but is not limited to,

994

repair and service technicians, fitters, and delivery staff.

995

     (e) The following providers are exempt from paragraphs (a)

996

and (c):

997

     1. A durable medical equipment and medical supply provider

998

owned and operated by a governmental entity;

999

     2. A durable medical equipment and medical supply provider

1000

that is operating within a pharmacy that is currently enrolled as

1001

a Medicaid pharmacy provider; and

1002

     3. An active Medicaid-enrolled orthopedic physician's

1003

group, primarily owned by physicians, which is providing only

1004

orthotic and prosthetic devices.

1005

     Section 13. The Agency for Health Care Administration shall

1006

review the process, procedures, and contractor's performance for

1007

the prior authorization of home health agency visits that are in

1008

excess of 60 visits over the lifetime of a Medicaid recipient.

1009

The agency shall determine whether modifications are necessary in

1010

order to reduce Medicaid fraud and abuse related to home health

1011

services for a Medicaid recipient which are not medically

1012

necessary. If modifications to the prior authorization function

1013

are necessary, the agency shall amend the contract to require

1014

contractor performance that reduces potential Medicaid fraud and

1015

abuse with respect to home health agency visits.

1016

     Section 14. The Agency for Health Care Administration shall

1017

report to the Legislature by January 1, 2009, on the feasibility

1018

and costs of accessing the Medicare system to disallow Medicaid

1019

payment for home health services that are paid for under the

1020

Medicare prospective payment system for recipients who are dually

1021

eligible for Medicaid and Medicare.

1022

     Section 15.  This act shall take effect July 1, 2008.

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