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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(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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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:
464
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
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included on one document, for each fraudulent entry on the
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document.
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(4) The agency shall impose a fine of $5,000 against a home
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health agency that demonstrates a pattern of billing any payor
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for services not provided. A pattern may be demonstrated by a
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showing of at least three billings for services not provided
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within a 12-month period. The fine must be imposed for each
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incident that is falsely billed. The agency may also:
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(a) Require payback of all funds;
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(b) Revoke the license; or
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(c) Issue a moratorium in accordance with s. 408.814.
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(5) The agency shall impose a fine of $5,000 against a home
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health agency that demonstrates a pattern of failing to provide a
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service specified in the home health agency's written agreement
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with a patient or the patient's legal representative, or the plan
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of care for that patient, unless a reduction in service is
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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.
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.