1

A bill to be entitled

2

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

3

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

4

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

5

provider to be licensed as a nurse registry; deleting

6

provisions related to Medicare reimbursement; amending s.

7

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

8

agency license to submit to the Agency for Health Care

9

Administration a business plan and evidence of contingency

10

funding, and disclose other controlling ownership

11

interests in health care entities; requiring certain

12

standards in documentation demonstrating financial ability

13

to operate; requiring an applicant for a new home health

14

agency license to submit a surety bond of a specified

15

amount to the Agency for Health Care Administration;

16

authorizing the agency to adopt rules for the submission

17

of other forms of security; providing procedures for the

18

agency with respect to making a claim against a surety

19

bond or security; limiting the timing of receipt and the

20

number of applications for a new home health agency

21

license which the agency may accept each quarter;

22

providing an exception under certain circumstances for a

23

home health agency that is part of a retirement community;

24

specifying a procedure for the agency to follow in

25

selecting applications to process for a new home health

26

agency license; providing for the future expiration of

27

such provisions; prohibiting the agency from issuing an

28

initial license to a home health agency licensure

29

applicant located within 20 miles of a licensed home

30

health agency that has common controlling interests;

31

prohibiting the transfer of an application to another home

32

health agency; requiring submission of an initial

33

application to relocate a licensed home health to another

34

geographic service area; imposing the burden of proof on

35

an applicant to demonstrate that a factual determination

36

made by the agency is not supported by a preponderance of

37

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

38

additional grounds under which the Agency for Health Care

39

Administration may take  disciplinary action against a

40

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

41

establishing staffing requirements for home health

42

agencies; reducing the number of home health agencies that

43

an administrator or director of nursing may serve;

44

requiring that an alternate administrator be designated in

45

writing; limiting the period that a home health agency

46

that provides skilled nursing care may operate without a

47

director of nursing; requiring notification upon the

48

termination and replacement of a director of nursing;

49

requiring the Agency for Health Care Administration to

50

take administrative enforcement action against a home

51

health agency for noncompliance with the notification and

52

staffing requirements for a director of nursing; exempting

53

a home health agency that provides only physical,

54

occupational, or speech therapy from requirements related

55

to a director of nursing; providing training requirements

56

for certified nursing assistants and home health aides;

57

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

58

the first unannounced survey of a newly licensed home

59

health agency within a specified period after issuing the

60

license; requiring that the agency impose administrative

61

fines for certain deficiencies; increasing the

62

administrative fines imposed for certain deficiencies;

63

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

64

the administration of medication to home health patients

65

by unlicensed staff; providing for the delegation of

66

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

67

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

68

that a home health agency must retain records of the

69

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

70

requiring that the Agency for Health Care Administration

71

adopt rules related to standards for the director of

72

nursing of a home health agency, requirements for a

73

director of nursing to submit certified staff activity

74

logs pursuant to an agency request, quality assurance

75

programs, and inspections related to an application for a

76

change in ownership; amending s. 400.506, F.S.; providing

77

training requirements for certified nursing assistants and

78

home health aides referred for contract by a nurse

79

registry; providing for the denial, suspension, or

80

revocation of nurse registry license and fines for paying

81

remuneration to certain entities in exchange for patient

82

referrals or refusing fair remuneration in exchange for

83

patient referrals; amending s. 400.518, F.S.; providing

84

for a fine to be imposed against a home health agency that

85

provides complimentary staffing to an assisted care

86

community in exchange for patient referrals; amending s.

87

409.906, F.S.; requiring durable medical equipment

88

providers enrolled in the Medicaid program to be

89

accredited and have a physical business location that

90

meets specified conditions; providing for exceptions of

91

certain business location criteria; requiring a durable

92

medical equipment provider enrolled in the Medicaid

93

program to obtain a surety bond of a specified amount and

94

for certain staff to undergo background screening;

95

providing for exemptions from accreditation and the surety

96

bond for specified durable medical equipment providers;

97

requiring the Agency for Health Care Administration to

98

review the process for prior authorization of home health

99

agency visits and determine whether modifications to the

100

process are necessary; requiring the agency to report to

101

the Legislature on the feasibility of accessing the

102

Medicare system to determine recipient eligibility for

103

home health services; providing an effective date.

104

105

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

106

107

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

108

read:

109

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

110

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

111

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

112

physician, physician assistant, or registered nurse licensed to

113

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

114

supervisory or administrative experience in home health care or

115

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

116

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

117

manage a maximum of five licensed home health agencies located

118

within one agency service district or within an immediately

119

contiguous county. If the home health agency is licensed under

120

this chapter and is part of a retirement community that provides

121

multiple levels of care, an employee of the retirement community

122

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

123

entities licensed under this chapter or chapter 429 that are

124

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

125

administrator shall designate, in writing, for each licensed

126

entity, a qualified alternate administrator to serve during

127

absences.

128

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

129

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

130

there is reasonable expectation that the patient's medical,

131

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

132

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

133

includes completion of an agreement with the patient or the

134

patient's legal representative to provide home health services as

135

required in s. 400.487(1).

136

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

137

licensed in this state to practice professional nursing and

138

certified in advanced or specialized nursing practice, as defined

139

in s. 464.003.

140

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

141

Administration.

142

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

143

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

144

licensed home health agency or licensed nurse registry shall

145

ensure that the certified nursing assistant employed by or under

146

contract with the home health agency or licensed nurse registry

147

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

148

in the home setting.

149

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

150

individual who receives companion services or homemaker services

151

in the individual's home or place of residence.

152

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

153

with or cares for an elderly, handicapped, or convalescent

154

individual and accompanies such individual on trips and outings

155

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

156

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

157

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

158

Family Services.

159

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

160

following entities pays withholding taxes: a home health agency;

161

a management company that has a contract to manage the home

162

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

163

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

164

the payroll and payroll taxes for the home health agency.

165

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

166

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

167

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

168

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

169

experience as a registered nurse; and who is responsible for

170

overseeing the professional nursing and home health aid delivery

171

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

172

director of a maximum of five licensed home health agencies

173

operated by a related business entity and located within one

174

agency service district or within an immediately contiguous

175

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

176

and is part of a retirement community that provides multiple

177

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

178

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

179

four entities licensed under this chapter or chapter 429 which

180

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

181

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

182

transactions, consistent with the price that an asset would bring

183

as the result of bona fide bargaining between well-informed

184

buyers and sellers who are not otherwise in a position to

185

generate business for the other party, or the compensation that

186

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

187

fide bargaining between well-informed parties to the agreement

188

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

189

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

190

time of the service agreement.

191

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

192

provides home health services and staffing services.

193

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

194

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

195

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

196

the course of their employment or contract.

197

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

198

services and medical supplies furnished by an organization to an

199

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

200

term includes organizations that provide one or more of the

201

following:

202

     (a)  Nursing care.

203

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

204

     (c)  Home health aide services.

205

     (d)  Dietetics and nutrition practice and nutrition

206

counseling.

207

     (e)  Medical supplies, restricted to drugs and biologicals

208

prescribed by a physician.

209

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

210

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

211

personal care, performs simple procedures as an extension of

212

therapy or nursing services, assists in ambulation or exercises,

213

or assists in administering medications as permitted in rule and

214

for which the person has received training established by the

215

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

216

licensed nurse registry shall ensure that the home health aide

217

employed by or under contract with the home health agency or

218

licensed nurse registry is adequately trained to perform the

219

tasks of a home health aide in the home setting.

220

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

221

chores that include housekeeping, meal planning and preparation,

222

shopping assistance, and routine household activities for an

223

elderly, handicapped, or convalescent individual. A homemaker may

224

not provide hands-on personal care to a client.

225

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

226

organization that employs, contracts with, or refers a licensed

227

professional who has received advanced training and experience in

228

intravenous infusion therapy and who administers infusion therapy

229

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

230

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

231

of intravenous pharmacological or nutritional products to a

232

patient in his or her home.

233

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

234

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

235

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

236

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

237

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

238

or grandchild.

239

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

240

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

241

agency.

242

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

243

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

244

contracts for registered nurses, licensed practical nurses,

245

certified nursing assistants, home health aides, companions, or

246

homemakers, who are compensated by fees as independent

247

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

248

provision of services to patients and contracts to provide

249

private duty or staffing services to health care facilities

250

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

251

business entities.

252

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

253

governmental subdivision or agency, partnership or association,

254

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

255

more than one health care professional discipline; a health care

256

professional and a home health aide or certified nursing

257

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

258

certified nursing assistant; or a home health aide and a

259

certified nursing assistant. The term does not include an entity

260

that provides services using only volunteers or only individuals

261

related by blood or marriage to the patient or client.

262

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

263

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

264

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

265

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

266

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

267

ambulation, and in administering medications as permitted by

268

rule.

269

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

270

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

271

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

272

graduate of an approved program or its equivalent, or meets

273

standards approved by the boards, and is licensed to perform

274

medical services delegated by the supervising physician, as

275

defined in s. 458.347 or s. 459.022.

276

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

277

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

278

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

279

therapeutic services required by law to be delivered by a health

280

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

281

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

282

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

283

agency or is referred by a licensed nurse registry.

284

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

285

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

286

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

287

licensed health care personnel and by certified nursing

288

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

289

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

290

registered with a licensed nurse registry. Staffing services may

291

be provided anywhere within the state.

292

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

293

Statutes, is amended to read:

294

400.464  Home Health agencies to be licensed; expiration of

295

license; exemptions; unlawful acts; penalties.--

296

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

297

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

298

therapy provider currently authorized to receive Medicare

299

reimbursement under a DME - Part B Provider number for the

300

provision of infusion therapy shall be licensed as a non

301

certified home health agency. Such a provider shall continue to

302

receive that specified Medicare reimbursement without being

303

certified so long as the reimbursement is limited to those items

304

authorized pursuant to the DME - Part B Provider Agreement and

305

the agency is licensed in compliance with the other provisions of

306

this part.

307

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

308

read:

309

     400.471 Application for license; fee; bond; limitation on

310

applications accepted.--

311

     (1)  Each applicant for licensure must comply with all

312

provisions of this part and part II of chapter 408.

313

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

314

408, the initial applicant must file with the application

315

satisfactory proof that the home health agency is in compliance

316

with this part and applicable rules, including:

317

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

318

by the applicant or through contractual arrangements with

319

existing providers.

320

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

321

employed.

322

     (c)  Completion of questions concerning volume data on the

323

renewal application as determined by rule.

324

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

325

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

326

to recruit and maintain staff.

327

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

328

average operating expense over the first year of operation.

329

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

330

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

331

provide evidence of having sufficient assets, credit, and

332

projected revenues to cover liabilities and expenses. The

333

applicant has demonstrated financial ability to operate if the

334

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

335

projected liabilities and expenses. An applicant may not project

336

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

337

of 15 percent or greater. All documents required under this

338

paragraph must be prepared in accordance with generally accepted

339

accounting principles and compiled and signed by a certified

340

public accountant.

341

     (g) All other ownership interests in health care entities

342

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

343

408.

344

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

345

health agency must also obtain and maintain the following

346

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

347

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

348

with an initial application for licensure and with each

349

application for license renewal:

350

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

351

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

352

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

353

licensure survey, submission of the survey of an accrediting

354

organization that is recognized by the agency if the

355

accreditation of the licensed home health agency is not

356

provisional and if the licensed home health agency authorizes

357

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

358

accrediting organization.

359

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

360

shall pay a fee for each license application submitted under this

361

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

362

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

363

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

364

out its responsibilities under this part, but not to exceed

365

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

366

governments applying for licenses under this part are exempt from

367

the payment of license fees.

368

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

369

certified to a home health agency that fails to satisfy the

370

requirements of a Medicare certification survey from the agency.

371

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

372

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

373

security acceptable to the agency, such as an irrevocable letter

374

of credit or a deposit in a trust account or financial

375

institution, payable to the Agency for Health Care

376

Administration. A surety bond is the only form of security that

377

may be submitted until the agency has adopted a rule providing

378

for other equivalent means of security. A surety bond or other

379

equivalent means of security must be valid from initial licensure

380

until the end of the first license-renewal period. The purpose of

381

this bond is to secure payment of any administrative penalties

382

imposed by the agency and any fees and costs incurred by the

383

agency regarding the home health agency license which are

384

authorized under state law and which the licensee fails to pay 30

385

days after the fine or costs become final. The agency may make a

386

claim against the surety bond or security until the later of:

387

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

388

license is not renewed for a second biennial period;

389

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

390

time; or

391

     (c) Sixty days after any administrative or legal

392

proceeding, including any appeal, is concluded involving an

393

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

394

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

395

license was initially issued.

396

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

397

health agency license only the following number of applications

398

quarterly, as determined using the number of licensed home health

399

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

400

Florida Population Estimates for Counties and Municipalities,

401

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

402

Demographic Research of the Legislature:

403

     1. Five for each geographic service area in which the

404

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

405

home health agencies in that geographic service area is between

406

2,000 and 2,999;

407

     2. Four for each geographic service area in which the

408

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

409

home health agencies in that geographic service area is between

410

1,000 and 1,999; and

411

     3. Three for each geographic service area in which the

412

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

413

home health agencies in that geographic service area is between 0

414

and 999.

415

416

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

417

is part of a retirement community providing multiple levels of

418

care and that will provide home health services exclusively to

419

residents of that facility is not subject to the quarterly

420

limitation and may not be counted as a new application for

421

purposes of the quarterly limitation. If the home health agency

422

provides home health services to persons outside that facility,

423

the agency shall impose a moratorium on the license in accordance

424

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

425

home health agency may reapply for a new home health agency

426

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

427

of new applications.

428

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

429

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

430

calendar quarter. Applications for a new home health agency

431

license received during this period, except an application for a

432

new home health agency license that is part of a retirement

433

community providing multiple levels of care and that will provide

434

home health services exclusively to residents of that facility,

435

must be grouped according to the geographic service area in which

436

the home health agency is to be located. When the number of

437

applications received for a geographic service area exceeds the

438

number of applications authorized to be accepted for processing

439

in paragraph (a), the agency shall use a lottery system to select

440

the applications to be accepted for processing for that

441

geographic service area as follows:

442

     1. A number shall be assigned to each application received

443

for that geographic service area.

444

     2. For each geographic service area, the agency shall put

445

the numbers assigned to each application in an opaque container.

446

     3. The agency shall select the applicable quantity of

447

numbers for that geographic service area without viewing the

448

contents of the container.

449

     4. The application that corresponds to the selected number

450

shall be accepted for processing.

451

452

The selection of applications to be accepted for processing must

453

be a public process conducted in Tallahassee and noticed for a

454

date during the first 6 through 10 business days of the calendar

455

quarter.

456

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

457

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

458

home health agency license which were received:

459

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

460

selection process set forth in paragraph (b); or

461

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

462

quarter.

463

     (d) This subsection expires July 1, 2011.

464

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

465

health agency licensure applicant if the applicant shares common

466

controlling interests with another licensed home health agency

467

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

468

return the application and fees to the applicant.

469

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

470

not be transferred to another home health agency or controlling

471

interest prior to issuance of the license.

472

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

473

to a different geographic service area not listed on its license

474

must submit an initial application for a home health agency

475

license for the new location.

476

     (12) When an applicant alleges that a factual determination

477

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

478

applicant to demonstrate that such determination is, in light of

479

the total record, not supported by the preponderance of the

480

evidence.

481

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

482

read:

483

     400.474  Administrative penalties.--

484

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

485

impose an administrative fine in the manner provided in chapter

486

120.

487

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

488

its employee is grounds for disciplinary action by the agency:

489

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

490

applicable rules.

491

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

492

materially affects the health or safety of a patient.

493

     (c)  Knowingly providing home health services in an

494

unlicensed assisted living facility or unlicensed adult family-

495

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

496

unlicensed facility or home to the agency within 72 hours after

497

providing the services.

498

     (d) Preparing or maintaining fraudulent patient records,

499

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

500

signs or symptoms that were not personally obtained or observed

501

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

502

borrowing patients or patient records from other home health

503

agencies to pass a survey or inspection, or falsifying

504

signatures.

505

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

506

patient for a period of 60 days.

507

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

508

health agency that demonstrates a pattern of falsifying:

509

     (a) Documents of training for home health aides or

510

certified nursing assistants; or

511

     (b) Health statements for staff providing direct care to

512

patients.

513

514

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

515

fraudulent entries or documents. The fine shall be imposed for

516

each fraudulent document or, if multiple staff members are

517

included on one document, for each fraudulent entry on the

518

document.

519

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

520

health agency that demonstrates a pattern of billing any payor

521

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

522

showing of at least three billings for services not provided

523

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

524

incident that is falsely billed. The agency may also:

525

     (a) Require payback of all funds;

526

     (b) Revoke the license; or

527

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

528

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

529

health agency that demonstrates a pattern of failing to provide a

530

service specified in the home health agency's written agreement

531

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

532

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

533

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

534

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

535

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

536

where the home health agency did not provide a service specified

537

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

538

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

539

may also impose additional administrative fines under s. 400.484

540

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

541

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

542

failing to provide a service specified in the home health

543

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

544

that patient.

545

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

546

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

547

home health agency that:

548

     (a) Gives remuneration for staffing services to:

549

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

550

informal patient-referral transactions or arrangements; or

551

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

552

informal patient-referral transactions or arrangements,

553

554

unless the home health agency has activated its comprehensive

555

emergency management plan in accordance with s. 400.492. This

556

paragraph does not apply to a Medicare-certified home health

557

agency that provides fair market value remuneration for staffing

558

services to a non-Medicare-certified home health agency that is

559

part of a continuing care facility licensed under chapter 651 for

560

providing services to its own residents if each resident

561

receiving home health services pursuant to this arrangement

562

attests in writing that he or she made a decision without

563

influence from staff of the facility to select, from a list of

564

Medicare-certified home health agencies provided by the facility,

565

that Medicare-certified home health agency to provide the

566

services.

567

     (b) Provides services to residents in an assisted living

568

facility for which the home health agency does not receive fair

569

market value remuneration.

570

     (c) Provides staffing to an assisted living facility for

571

which the home health agency does not receive fair market value

572

remuneration.

573

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

574

of all contracts with assisted living facilities which were

575

executed within 5 years before the request.

576

     (e) Gives remuneration to a case manager, discharge

577

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

578

is involved in the discharge-planning process of a facility

579

licensed under chapter 395 or this chapter from whom the home

580

health agency receives referrals.

581

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

582

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

583

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

584

quarter:

585

     1. The number of insulin-dependent diabetic patients

586

receiving insulin-injection services from the home health agency;

587

     2. The number of patients receiving both home health

588

services from the home health agency and hospice services;

589

     3. The number of patients receiving home health services

590

from that home health agency; and

591

     4. The names and license numbers of nurses whose primary

592

job responsibility is to provide home health services to patients

593

and who received remuneration from the home health agency in

594

excess of $25,000 during the calendar quarter.

595

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

596

Medicaid beneficiary.

597

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

598

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

599

contract with a physician-specialist whose services are mandated

600

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

601

a federal or state health care program at one time.

602

     (i) Gives remuneration to a physician without a medical

603

director contract being in effect. The contract must:

604

     1. Be in writing and signed by both parties;

605

     2. Provide for remuneration that is at fair market value

606

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

607

by the medical director describing the work performed, the dates

608

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

609

and

610

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

611

612

The hourly rate specified in the contract may not be increased

613

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

614

execute a subsequent contract with that physician which has an

615

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

616

in the original contract.

617

     (j) Gives remuneration to:

618

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

619

of paragraph (h) or paragraph (i);

620

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

621

     3. An immediate family member of the physician,

622

623

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

624

preceding 12 months from that physician or physician's office

625

staff.

626

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

627

all contracts with a medical director which were executed within

628

5 years before the request.

629

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

630

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

631

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

632

agency or concurrently operates both a licensed home health

633

agency and an unlicensed home health agency commits a felony of

634

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

635

775.083, or s. 775.084.

636

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

637

without a license and that home health agency has received any

638

government reimbursement for services, the agency shall make a

639

fraud referral to the appropriate government reimbursement

640

program.

641

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

642

read:

643

     400.476 Staffing requirements; notifications; limitations

644

on staffing services.--

645

     (1) ADMINISTRATOR.--

646

     (a) An administrator may manage only one home health

647

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

648

health agencies if all five home health agencies have identical

649

controlling interests as defined in s. 408.803 and are located

650

within one agency geographic service area or within an

651

immediately contiguous county. If the home health agency is

652

licensed under this chapter and is part of a retirement community

653

that provides multiple levels of care, an employee of the

654

retirement community may administer the home health agency and up

655

to a maximum of four entities licensed under this chapter or

656

chapter 429 which all have identical controlling interests as

657

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

658

writing, for each licensed entity, a qualified alternate

659

administrator to serve during the administrator's absence.

660

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

661

licensed physician, physician assistant, or registered nurse

662

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

663

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

664

director of nursing for up to the number of entities authorized

665

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

666

equivalent employees and contracted personnel in each home health

667

agency.

668

     (2) DIRECTOR OF NURSING.--

669

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

670

for:

671

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

672

have identical controlling interests as defined in s. 408.803 and

673

are located within one agency geographic service area or within

674

an immediately contiguous county; or

675

     2. Up to five licensed home health agencies if:

676

     a. All of the home health agencies have identical

677

controlling interests as defined in s. 408.803;

678

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

679

agency geographic service area or within an immediately

680

contiguous county; and

681

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

682

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

683

delegation from the director of nursing to serve as the director

684

of nursing for that home health agency when the director of

685

nursing is not present.

686

687

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

688

retirement community that provides multiple levels of care, an

689

employee of the retirement community may serve as the director of

690

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

691

entities, other than home health agencies, licensed under this

692

chapter or chapter 429 which all have identical controlling

693

interests as defined in s. 408.803.

694

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

695

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

696

of nursing. A home health agency that provides skilled nursing

697

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

698

notify the agency within 10 business days after termination of

699

the services of the director of nursing for the home health

700

agency. A home health agency that provides skilled nursing care

701

must notify the agency of the identity and qualifications of the

702

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

703

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

704

operates for more than 30 calendar days without a director of

705

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

706

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

707

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

708

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

709

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

710

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

711

not take administrative action against a home health agency if

712

the director of nursing fails to notify the department upon

713

termination of services as the director of nursing for the home

714

health agency.

715

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

716

occupational, or speech therapy is not required to have a

717

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

718

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

719

certified nursing assistant employed by or under contract with

720

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

721

under contract with the home health agency is adequately trained

722

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

723

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

724

within the state.

725

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

726

read:

727

     400.484  Right of inspection; deficiencies; fines.--

728

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

729

agency may make such inspections and investigations as are

730

necessary in order to determine the state of compliance with this

731

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

732

shall conduct an unannounced survey of each home health agency

733

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

734

agency.

735

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

736

deficiencies in accordance with the following schedule:

737

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

738

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

739

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

740

disablement, or permanent injury. Upon finding a class I

741

deficiency, the agency shall may impose an administrative fine in

742

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

743

that the deficiency exists.

744

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

745

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

746

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

747

agency shall may impose an administrative fine in the amount of

748

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

749

deficiency exists.

750

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

751

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

752

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

753

repeated class III deficiency, the agency shall may impose an

754

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

755

and each day that the uncorrected or repeated deficiency exists.

756

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

757

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

758

have the potential of negatively affecting patients. These

759

violations are of a type that the agency determines do not

760

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

761

finding an uncorrected or repeated class IV deficiency, the

762

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

763

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

764

repeated deficiency exists.

765

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

766

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

767

investigation that results in a successful prosecution, excluding

768

costs associated with an attorney's time.

769

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

770

read:

771

     400.488 Nurse delegation Assistance with self-

772

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

773

delegate nursing tasks as provided in chapter 464 and related

774

rules.

775

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

776

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

777

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

778

patient may be receiving assistance with self-administration of

779

medication from an unlicensed person.

780

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

781

licensed to practice nursing or medicine who is employed by or

782

under contract to a home health agency and who has received

783

training with respect to assisting with the self-administration

784

of medication as provided by agency rule.

785

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

786

own medications without assistance shall be encouraged and

787

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

788

with a dispensed prescription's label or the package directions

789

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

790

condition is medically stable with the self-administration of

791

routine, regularly scheduled medications that are intended to be

792

self-administered. Assistance with self-medication by an

793

unlicensed person may occur only upon a documented request by,

794

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

795

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

796

section, self-administered medications include both legend and

797

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

798

topical ophthalmic, otic, and nasal dosage forms, including

799

solutions, suspensions, sprays, and inhalers.

800

     (3) Assistance with self-administration of medication

801

includes:

802

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

803

properly labeled container, from where it is stored and bringing

804

it to the patient.

805

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

806

opening the container, removing a prescribed amount of medication

807

from the container, and closing the container.

808

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

809

the dosage in another container and helping the patient by

810

lifting the container to his or her mouth.

811

     (d) Applying topical medications.

812

     (e) Returning the medication container to proper storage.

813

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

814

with self-administration under this section.

815

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

816

     (a) Mixing, compounding, converting, or calculating

817

medication doses, except for measuring a prescribed amount of

818

liquid medication or breaking a scored tablet or crushing a

819

tablet as prescribed.

820

     (b) The preparation of syringes for injection or the

821

administration of medications by any injectable route.

822

     (c) Administration of medications through intermittent

823

positive pressure breathing machines or a nebulizer.

824

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

825

in a cavity of the body.

826

     (e) Administration of parenteral preparations.

827

     (f) Irrigations or debriding agents used in the treatment

828

of a skin condition.

829

     (g) Rectal, urethral, or vaginal preparations.

830

     (h) Medications ordered by the physician or health care

831

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

832

unless the order is written with specific parameters that

833

preclude independent judgment on the part of the unlicensed

834

person, and at the request of a competent patient.

835

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

836

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

837

the reason for administration requires judgment or discretion on

838

the part of the unlicensed person.

839

     (5) Assistance with the self-administration of medication

840

by an unlicensed person as described in this section does not

841

constitute administration as defined in s. 465.003.

842

     (6) The agency may by rule establish procedures and

843

interpret terms as necessary to administer this section.

844

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

845

Statutes, is amended to read:

846

     400.491  Clinical records.--

847

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

848

who receives nonskilled care a service provision plan. Such

849

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

850

1 year following termination of services.

851

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

852

section 400.497, Florida Statutes, are renumbered as subsections

853

(7), (8), (9), and (10), respectively, and a new subsections (5)

854

and (6) are added to that section, to read:

855

     400.497  Rules establishing minimum standards.--The agency

856

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

857

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

858

and 400.509, which must provide reasonable and fair minimum

859

standards relating to:

860

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

861

develop rules related to:

862

     (a) Standards that address oversight responsibilities by

863

the director of nursing of skilled nursing and personal care

864

services provided by the home health agency's staff;

865

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

866

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

867

health services provided by a specified direct employee or

868

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

869

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

870

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

871

     (c) A quality assurance program for home health services

872

provided by the home health agency.

873

     (6) Conditions for using a recent unannounced licensure

874

inspection for the inspection required in s. 408.806 related to a

875

licensure application associated with a change in ownership of a

876

licensed home health agency.

877

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

878

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

879

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

880

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

881

section, to read:

882

     400.506  Licensure of nurse registries; requirements;

883

penalties.--

884

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

885

residences registered nurses and licensed practical nurses

886

registered and licensed under part I of chapter 464, certified

887

nursing assistants certified under part II of chapter 464, home

888

health aides who present documented proof of successful

889

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

890

companions or homemakers for the purposes of providing those

891

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

892

registry shall ensure that each certified nursing assistant

893

referred for contract by the nurse registry and each home health

894

aide referred for contract by the nurse registry is adequately

895

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

896

setting. Each person referred by a nurse registry must provide

897

current documentation that he or she is free from communicable

898

diseases.

899

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

900

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

901

against a nurse registry that:

902

     1. Provides services to residents in an assisted living

903

facility for which the nurse registry does not receive fair

904

market value remuneration.

905

     2. Provides staffing to an assisted living facility for

906

which the nurse registry does not receive fair market value

907

remuneration.

908

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

909

of all contracts with assisted living facilities which were

910

executed within the last 5 years.

911

     4. Gives remuneration to a case manager, discharge

912

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

913

is involved in the discharge-planning process of a facility

914

licensed under chapter 395 or this chapter and from whom the

915

nurse registry receives referrals.

916

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

917

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

918

physician, and the nurse registry received a patient referral

919

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

920

office staff.

921

     (b) The agency shall also impose an administrative fine

922

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

923

nursing assistants, home health aides, or other staff without

924

charge to a facility licensed under chapter 429 in return for

925

patient referrals from the facility.

926

     (c) The proceeds of all fines collected under this

927

subsection shall be deposited into the Health Care Trust Fund.

928

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

929

Florida Statutes, to read:

930

     400.518  Prohibited referrals to home health agencies.--

931

     (4) The agency shall impose an administrative fine of

932

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

933

nursing assistants, home health aides, or other staff without

934

charge to a facility licensed under chapter 429 in return for

935

patient referrals from the facility. The proceeds of such fines

936

shall be deposited into the Health Care Trust Fund.

937

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

938

Statutes, is amended to read:

939

409.906  Optional Medicaid services.--Subject to specific

940

appropriations, the agency may make payments for services which

941

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

942

Act and are furnished by Medicaid providers to recipients who are

943

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

944

provided. Any optional service that is provided shall be provided

945

only when medically necessary and in accordance with state and

946

federal law. Optional services rendered by providers in mobile

947

units to Medicaid recipients may be restricted or prohibited by

948

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

949

or limit the agency from adjusting fees, reimbursement rates,

950

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

951

making any other adjustments necessary to comply with the

952

availability of moneys and any limitations or directions provided

953

for in the General Appropriations Act or chapter 216. If

954

necessary to safeguard the state's systems of providing services

955

to elderly and disabled persons and subject to the notice and

956

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

957

Agency for Health Care Administration to amend the Medicaid state

958

plan to delete the optional Medicaid service known as

959

"Intermediate Care Facilities for the Developmentally Disabled."

960

Optional services may include:

961

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

962

and pay for certain durable medical equipment and supplies

963

provided to a Medicaid recipient as medically necessary. As of

964

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

965

medical equipment and supplies to providers who meet all of the

966

criteria in this subsection.

967

     (a) Durable medical equipment and medical supply providers

968

must be accredited by an Agency for Health Care Administration

969

approved accreditation organization specifically designated as a

970

durable medical equipment accrediting organization. The provider

971

must be re-accredited periodically and is subject to unannounced

972

reviews by the accrediting organization.

973

     (b) Durable medical equipment and medical supply providers

974

must have a physical business location with durable medical

975

equipment and medical supplies on site and must be readily

976

available to the general public. The physical business location

977

must meet the following criteria:

978

     1. The location must maintain a substantial inventory that

979

is readily available and sufficient to meet the needs of the

980

durable medical equipment business location's customers;

981

     2. The location must be clearly identified with signage

982

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

983

business location as a business that furnishes durable medical

984

equipment, medical supplies, or both;

985

     3. The location must have a functional landline business

986

telephone;

987

     4. The physical business location may not be located within

988

or at the same numbered street address as another Medicaid-

989

enrolled durable medical equipment and medical supply provider or

990

an enrolled Medicaid pharmacy that is also enrolled as a durable

991

medical equipment provider. A location within or at the same

992

numbered street address includes unique suite or storefront

993

numbers assigned by the United States Postal Service or the

994

building's owner;

995

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

996

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

997

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

998

of unique durable medical equipment that is not otherwise

999

available from other durable medical equipment distributors or

1000

providers located within the state; and

1001

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

1002

business that is located more than 50 miles from the Florida

1003

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

1004

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

1005

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

1006

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

1007

scheduled and posted holidays.

1008

     (c) Durable medical equipment and medical supply providers

1009

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

1010

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

1011

$250,000 statewide as identified per federal employer

1012

identification number. Providers who qualify for a statewide or

1013

an aggregate bond must identify all of their locations in any

1014

enrollment application or bond renewal as a Medicaid durable

1015

medical equipment and medical supply provider. Each provider

1016

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

1017

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

1018

continuous bond.

1019

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

1020

435.04, is required as a condition of employment for provider

1021

staff in direct contact with and providing direct services to

1022

recipients of durable medical equipment and medical supplies in

1023

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

1024

repair and service technicians, fitters, and delivery staff.

1025

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

1026

and (c):

1027

     1. A durable medical equipment and medical supply provider

1028

owned and operated by a governmental entity;

1029

     2. A durable medical equipment and medical supply provider

1030

that is operating within a pharmacy that is currently enrolled as

1031

a Medicaid pharmacy provider; and

1032

     3. An active Medicaid-enrolled orthopedic physician's

1033

group, primarily owned by physicians, which is providing only

1034

orthotic and prosthetic devices.

1035

     Section 13. The Agency for Health Care Administration shall

1036

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

1037

the prior authorization of home health agency visits that are in

1038

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

1039

The agency shall determine whether modifications are necessary in

1040

order to reduce Medicaid fraud and abuse related to home health

1041

services for a Medicaid recipient which are not medically

1042

necessary. If modifications to the prior authorization function

1043

are necessary, the agency shall amend the contract to require

1044

contractor performance that reduces potential Medicaid fraud and

1045

abuse with respect to home health agency visits.

1046

     Section 14. The Agency for Health Care Administration shall

1047

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

1048

and costs of accessing the Medicare system to disallow Medicaid

1049

payment for home health services that are paid for under the

1050

Medicare prospective payment system for recipients who are dually

1051

eligible for Medicaid and Medicare.

1052

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