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 that the change of ownership of

27

a home health agency that is licensed at the time of the

28

sale is not restricted or limited; providing for the

29

future expiration of such provisions; prohibiting the

30

agency from issuing an initial license to a home health

31

agency licensure applicant located within 20 miles of a

32

licensed home health agency that has common controlling

33

interests; prohibiting the transfer of an application to

34

another home health agency; requiring submission of an

35

initial application to relocate a licensed home health to

36

another geographic service area; imposing the burden of

37

proof on an applicant to demonstrate that a factual

38

determination made by the agency is not supported by a

39

preponderance of the evidence; amending s. 400.474, F.S.;

40

providing additional grounds under which the Agency for

41

Health Care Administration may take  disciplinary action

42

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

43

establishing staffing requirements for home health

44

agencies; reducing the number of home health agencies that

45

an administrator or director of nursing may serve;

46

requiring that an alternate administrator be designated in

47

writing; limiting the period that a home health agency

48

that provides skilled nursing care may operate without a

49

director of nursing; requiring notification upon the

50

termination and replacement of a director of nursing;

51

requiring the Agency for Health Care Administration to

52

take administrative enforcement action against a home

53

health agency for noncompliance with the notification and

54

staffing requirements for a director of nursing; exempting

55

a home health agency that provides only physical,

56

occupational, or speech therapy from requirements related

57

to a director of nursing; providing training requirements

58

for certified nursing assistants and home health aides;

59

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

60

the first unannounced survey of a newly licensed home

61

health agency within a specified period after issuing the

62

license; requiring that the agency impose administrative

63

fines for certain deficiencies; increasing the

64

administrative fines imposed for certain deficiencies;

65

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

66

the administration of medication to home health patients

67

by unlicensed staff; providing for the delegation of

68

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

69

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

70

that a home health agency must retain records of the

71

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

72

requiring that the Agency for Health Care Administration

73

adopt rules related to standards for the director of

74

nursing of a home health agency, requirements for a

75

director of nursing to submit certified staff activity

76

logs pursuant to an agency request, quality assurance

77

programs, and inspections related to an application for a

78

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

79

training requirements for certified nursing assistants and

80

home health aides referred for contract by a nurse

81

registry; providing for the denial, suspension, or

82

revocation of nurse registry license and fines for paying

83

remuneration to certain entities in exchange for patient

84

referrals or refusing fair remuneration in exchange for

85

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

86

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

87

provides complimentary staffing to an assisted care

88

community in exchange for patient referrals; amending s.

89

409.906, F.S.; requiring durable medical equipment

90

providers enrolled in the Medicaid program to be

91

accredited and have a physical business location that

92

meets specified conditions; providing for exceptions of

93

certain business location criteria; requiring a durable

94

medical equipment provider enrolled in the Medicaid

95

program to obtain a surety bond of a specified amount and

96

for certain staff to undergo background screening;

97

providing for exemptions from accreditation and the surety

98

bond for specified durable medical equipment providers;

99

requiring the Agency for Health Care Administration to

100

review the process for prior authorization of home health

101

agency visits and determine whether modifications to the

102

process are necessary; requiring the agency to report to

103

the Legislature on the feasibility of accessing the

104

Medicare system to determine recipient eligibility for

105

home health services; providing appropriations and

106

authorizing additional positions; providing an effective

107

date.

108

109

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

110

111

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

112

read:

113

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

114

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

115

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

116

physician, physician assistant, or registered nurse licensed to

117

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

118

supervisory or administrative experience in home health care or

119

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

120

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

121

manage a maximum of five licensed home health agencies located

122

within one agency service district or within an immediately

123

contiguous county. If the home health agency is licensed under

124

this chapter and is part of a retirement community that provides

125

multiple levels of care, an employee of the retirement community

126

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

127

entities licensed under this chapter or chapter 429 that are

128

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

129

administrator shall designate, in writing, for each licensed

130

entity, a qualified alternate administrator to serve during

131

absences.

132

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

133

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

134

there is reasonable expectation that the patient's medical,

135

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

136

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

137

includes completion of an agreement with the patient or the

138

patient's legal representative to provide home health services as

139

required in s. 400.487(1).

140

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

141

licensed in this state to practice professional nursing and

142

certified in advanced or specialized nursing practice, as defined

143

in s. 464.003.

144

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

145

Administration.

146

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

147

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

148

licensed home health agency or licensed nurse registry shall

149

ensure that the certified nursing assistant employed by or under

150

contract with the home health agency or licensed nurse registry

151

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

152

in the home setting.

153

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

154

individual who receives companion services or homemaker services

155

in the individual's home or place of residence.

156

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

157

with or cares for an elderly, handicapped, or convalescent

158

individual and accompanies such individual on trips and outings

159

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

160

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

161

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

162

Family Services.

163

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

164

following entities pays withholding taxes: a home health agency;

165

a management company that has a contract to manage the home

166

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

167

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

168

the payroll and payroll taxes for the home health agency.

169

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

170

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

171

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

172

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

173

experience as a registered nurse; and who is responsible for

174

overseeing the professional nursing and home health aid delivery

175

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

176

director of a maximum of five licensed home health agencies

177

operated by a related business entity and located within one

178

agency service district or within an immediately contiguous

179

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

180

and is part of a retirement community that provides multiple

181

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

182

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

183

four entities licensed under this chapter or chapter 429 which

184

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

185

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

186

transactions, consistent with the price that an asset would bring

187

as the result of bona fide bargaining between well-informed

188

buyers and sellers who are not otherwise in a position to

189

generate business for the other party, or the compensation that

190

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

191

fide bargaining between well-informed parties to the agreement

192

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

193

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

194

time of the service agreement.

195

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

196

provides home health services and staffing services.

197

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

198

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

199

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

200

the course of their employment or contract.

201

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

202

services and medical supplies furnished by an organization to an

203

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

204

term includes organizations that provide one or more of the

205

following:

206

     (a)  Nursing care.

207

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

208

     (c)  Home health aide services.

209

     (d)  Dietetics and nutrition practice and nutrition

210

counseling.

211

     (e)  Medical supplies, restricted to drugs and biologicals

212

prescribed by a physician.

213

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

214

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

215

personal care, performs simple procedures as an extension of

216

therapy or nursing services, assists in ambulation or exercises,

217

or assists in administering medications as permitted in rule and

218

for which the person has received training established by the

219

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

220

licensed nurse registry shall ensure that the home health aide

221

employed by or under contract with the home health agency or

222

licensed nurse registry is adequately trained to perform the

223

tasks of a home health aide in the home setting.

224

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

225

chores that include housekeeping, meal planning and preparation,

226

shopping assistance, and routine household activities for an

227

elderly, handicapped, or convalescent individual. A homemaker may

228

not provide hands-on personal care to a client.

229

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

230

organization that employs, contracts with, or refers a licensed

231

professional who has received advanced training and experience in

232

intravenous infusion therapy and who administers infusion therapy

233

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

234

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

235

of intravenous pharmacological or nutritional products to a

236

patient in his or her home.

237

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

238

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

239

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

240

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

241

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

242

or grandchild.

243

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

244

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

245

agency.

246

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

247

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

248

contracts for registered nurses, licensed practical nurses,

249

certified nursing assistants, home health aides, companions, or

250

homemakers, who are compensated by fees as independent

251

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

252

provision of services to patients and contracts to provide

253

private duty or staffing services to health care facilities

254

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

255

business entities.

256

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

257

governmental subdivision or agency, partnership or association,

258

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

259

more than one health care professional discipline; a health care

260

professional and a home health aide or certified nursing

261

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

262

certified nursing assistant; or a home health aide and a

263

certified nursing assistant. The term does not include an entity

264

that provides services using only volunteers or only individuals

265

related by blood or marriage to the patient or client.

266

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

267

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

268

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

269

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

270

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

271

ambulation, and in administering medications as permitted by

272

rule.

273

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

274

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

275

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

276

graduate of an approved program or its equivalent, or meets

277

standards approved by the boards, and is licensed to perform

278

medical services delegated by the supervising physician, as

279

defined in s. 458.347 or s. 459.022.

280

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

281

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

282

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

283

therapeutic services required by law to be delivered by a health

284

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

285

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

286

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

287

agency or is referred by a licensed nurse registry.

288

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

289

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

290

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

291

licensed health care personnel and by certified nursing

292

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

293

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

294

registered with a licensed nurse registry. Staffing services may

295

be provided anywhere within the state.

296

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

297

Statutes, is amended to read:

298

400.464  Home Health agencies to be licensed; expiration of

299

license; exemptions; unlawful acts; penalties.--

300

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

301

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

302

therapy provider currently authorized to receive Medicare

303

reimbursement under a DME - Part B Provider number for the

304

provision of infusion therapy shall be licensed as a non

305

certified home health agency. Such a provider shall continue to

306

receive that specified Medicare reimbursement without being

307

certified so long as the reimbursement is limited to those items

308

authorized pursuant to the DME - Part B Provider Agreement and

309

the agency is licensed in compliance with the other provisions of

310

this part.

311

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

312

read:

313

     400.471 Application for license; fee; bond; limitation on

314

applications accepted.--

315

     (1)  Each applicant for licensure must comply with all

316

provisions of this part and part II of chapter 408.

317

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

318

408, the initial applicant must file with the application

319

satisfactory proof that the home health agency is in compliance

320

with this part and applicable rules, including:

321

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

322

by the applicant or through contractual arrangements with

323

existing providers.

324

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

325

employed.

326

     (c)  Completion of questions concerning volume data on the

327

renewal application as determined by rule.

328

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

329

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

330

to recruit and maintain staff.

331

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

332

average operating expense over the first year of operation.

333

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

334

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

335

provide evidence of having sufficient assets, credit, and

336

projected revenues to cover liabilities and expenses. The

337

applicant has demonstrated financial ability to operate if the

338

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

339

projected liabilities and expenses. An applicant may not project

340

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

341

of 15 percent or greater. All documents required under this

342

paragraph must be prepared in accordance with generally accepted

343

accounting principles and compiled and signed by a certified

344

public accountant.

345

     (g) All other ownership interests in health care entities

346

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

347

408.

348

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

349

health agency must also obtain and maintain the following

350

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

351

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

352

with an initial application for licensure and with each

353

application for license renewal:

354

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

355

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

356

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

357

licensure survey, submission of the survey of an accrediting

358

organization that is recognized by the agency if the

359

accreditation of the licensed home health agency is not

360

provisional and if the licensed home health agency authorizes

361

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

362

accrediting organization.

363

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

364

shall pay a fee for each license application submitted under this

365

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

366

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

367

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

368

out its responsibilities under this part, but not to exceed

369

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

370

governments applying for licenses under this part are exempt from

371

the payment of license fees.

372

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

373

certified to a home health agency that fails to satisfy the

374

requirements of a Medicare certification survey from the agency.

375

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

376

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

377

security acceptable to the agency, such as an irrevocable letter

378

of credit or a deposit in a trust account or financial

379

institution, payable to the Agency for Health Care

380

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

381

may be submitted until the agency has adopted a rule providing

382

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

383

equivalent means of security must be valid from initial licensure

384

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

385

this bond is to secure payment of any administrative penalties

386

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

387

agency regarding the home health agency license which are

388

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

389

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

390

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

391

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

392

license is not renewed for a second biennial period;

393

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

394

time; or

395

     (c) Sixty days after any administrative or legal

396

proceeding, including any appeal, is concluded involving an

397

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

398

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

399

license was initially issued.

400

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

401

health agency license only the following number of applications

402

quarterly, as determined using the number of licensed home health

403

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

404

Florida Population Estimates for Counties and Municipalities,

405

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

406

Demographic Research of the Legislature:

407

     1. Five 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

2,000 and 2,999;

411

     2. Four 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

414

1,000 and 1,999; and

415

     3. Three for each geographic service area in which the

416

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

417

home health agencies in that geographic service area is between 0

418

and 999.

419

420

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

421

is part of a retirement community providing multiple levels of

422

care and that will provide home health services exclusively to

423

residents of that facility is not subject to the quarterly

424

limitation and may not be counted as a new application for

425

purposes of the quarterly limitation. If the home health agency

426

provides home health services to persons outside that facility,

427

the agency shall impose a moratorium on the license in accordance

428

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

429

home health agency may reapply for a new home health agency

430

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

431

of new applications.

432

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

433

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

434

calendar quarter. Applications for a new home health agency

435

license received during this period, except an application for a

436

new home health agency license that is part of a retirement

437

community providing multiple levels of care and that will provide

438

home health services exclusively to residents of that facility,

439

must be grouped according to the geographic service area in which

440

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

441

applications received for a geographic service area exceeds the

442

number of applications authorized to be accepted for processing

443

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

444

the applications to be accepted for processing for that

445

geographic service area as follows:

446

     1. A number shall be assigned to each application received

447

for that geographic service area.

448

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

449

the numbers assigned to each application in an opaque container.

450

     3. The agency shall select the applicable quantity of

451

numbers for that geographic service area without viewing the

452

contents of the container.

453

     4. The application that corresponds to the selected number

454

shall be accepted for processing.

455

456

The selection of applications to be accepted for processing must

457

be a public process conducted in Tallahassee and noticed for a

458

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

459

quarter.

460

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

461

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

462

home health agency license which were received:

463

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

464

selection process set forth in paragraph (b); or

465

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

466

quarter.

467

     (d) This subsection does not restrict or limit the change

468

of ownership of a home health agency that is licensed at the time

469

of the sale.

470

     (e) This subsection expires July 1, 2011.

471

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

472

health agency licensure applicant if the applicant shares common

473

controlling interests with another licensed home health agency

474

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

475

return the application and fees to the applicant.

476

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

477

not be transferred to another home health agency or controlling

478

interest prior to issuance of the license.

479

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

480

to a different geographic service area not listed on its license

481

must submit an initial application for a home health agency

482

license for the new location.

483

     (12) When an applicant alleges that a factual determination

484

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

485

applicant to demonstrate that such determination is, in light of

486

the total record, not supported by the preponderance of the

487

evidence.

488

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

489

read:

490

     400.474  Administrative penalties.--

491

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

492

impose an administrative fine in the manner provided in chapter

493

120.

494

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

495

its employee is grounds for disciplinary action by the agency:

496

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

497

applicable rules.

498

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

499

materially affects the health or safety of a patient.

500

     (c)  Knowingly providing home health services in an

501

unlicensed assisted living facility or unlicensed adult family-

502

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

503

unlicensed facility or home to the agency within 72 hours after

504

providing the services.

505

     (d) Preparing or maintaining fraudulent patient records,

506

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

507

signs or symptoms that were not personally obtained or observed

508

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

509

borrowing patients or patient records from other home health

510

agencies to pass a survey or inspection, or falsifying

511

signatures.

512

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

513

patient for a period of 60 days.

514

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

515

health agency that demonstrates a pattern of falsifying:

516

     (a) Documents of training for home health aides or

517

certified nursing assistants; or

518

     (b) Health statements for staff providing direct care to

519

patients.

520

521

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

522

fraudulent entries or documents. The fine shall be imposed for

523

each fraudulent document or, if multiple staff members are

524

included on one document, for each fraudulent entry on the

525

document.

526

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

527

health agency that demonstrates a pattern of billing any payor

528

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

529

showing of at least three billings for services not provided

530

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

531

incident that is falsely billed. The agency may also:

532

     (a) Require payback of all funds;

533

     (b) Revoke the license; or

534

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

535

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

536

health agency that demonstrates a pattern of failing to provide a

537

service specified in the home health agency's written agreement

538

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

539

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

540

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

541

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

542

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

543

where the home health agency did not provide a service specified

544

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

545

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

546

may also impose additional administrative fines under s. 400.484

547

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

548

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

549

failing to provide a service specified in the home health

550

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

551

that patient.

552

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

553

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

554

home health agency that:

555

     (a) Gives remuneration for staffing services to:

556

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

557

informal patient-referral transactions or arrangements; or

558

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

559

informal patient-referral transactions or arrangements,

560

561

unless the home health agency has activated its comprehensive

562

emergency management plan in accordance with s. 400.492. This

563

paragraph does not apply to a Medicare-certified home health

564

agency that provides fair market value remuneration for staffing

565

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

566

part of a continuing care facility licensed under chapter 651 for

567

providing services to its own residents if each resident

568

receiving home health services pursuant to this arrangement

569

attests in writing that he or she made a decision without

570

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

571

Medicare-certified home health agencies provided by the facility,

572

that Medicare-certified home health agency to provide the

573

services.

574

     (b) Provides services to residents in an assisted living

575

facility for which the home health agency does not receive fair

576

market value remuneration.

577

     (c) Provides staffing to an assisted living facility for

578

which the home health agency does not receive fair market value

579

remuneration.

580

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

581

of all contracts with assisted living facilities which were

582

executed within 5 years before the request.

583

     (e) Gives remuneration to a case manager, discharge

584

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

585

is involved in the discharge-planning process of a facility

586

licensed under chapter 395 or this chapter from whom the home

587

health agency receives referrals.

588

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

589

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

590

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

591

quarter:

592

     1. The number of insulin-dependent diabetic patients

593

receiving insulin-injection services from the home health agency;

594

     2. The number of patients receiving both home health

595

services from the home health agency and hospice services;

596

     3. The number of patients receiving home health services

597

from that home health agency; and

598

     4. The names and license numbers of nurses whose primary

599

job responsibility is to provide home health services to patients

600

and who received remuneration from the home health agency in

601

excess of $25,000 during the calendar quarter.

602

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

603

Medicaid beneficiary.

604

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

605

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

606

contract with a physician-specialist whose services are mandated

607

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

608

a federal or state health care program at one time.

609

     (i) Gives remuneration to a physician without a medical

610

director contract being in effect. The contract must:

611

     1. Be in writing and signed by both parties;

612

     2. Provide for remuneration that is at fair market value

613

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

614

by the medical director describing the work performed, the dates

615

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

616

and

617

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

618

619

The hourly rate specified in the contract may not be increased

620

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

621

execute a subsequent contract with that physician which has an

622

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

623

in the original contract.

624

     (j) Gives remuneration to:

625

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

626

of paragraph (h) or paragraph (i);

627

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

628

     3. An immediate family member of the physician,

629

630

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

631

preceding 12 months from that physician or physician's office

632

staff.

633

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

634

all contracts with a medical director which were executed within

635

5 years before the request.

636

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

637

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

638

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

639

agency or concurrently operates both a licensed home health

640

agency and an unlicensed home health agency commits a felony of

641

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

642

775.083, or s. 775.084.

643

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

644

without a license and that home health agency has received any

645

government reimbursement for services, the agency shall make a

646

fraud referral to the appropriate government reimbursement

647

program.

648

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

649

read:

650

     400.476 Staffing requirements; notifications; limitations

651

on staffing services.--

652

     (1) ADMINISTRATOR.--

653

     (a) An administrator may manage only one home health

654

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

655

health agencies if all five home health agencies have identical

656

controlling interests as defined in s. 408.803 and are located

657

within one agency geographic service area or within an

658

immediately contiguous county. If the home health agency is

659

licensed under this chapter and is part of a retirement community

660

that provides multiple levels of care, an employee of the

661

retirement community may administer the home health agency and up

662

to a maximum of four entities licensed under this chapter or

663

chapter 429 which all have identical controlling interests as

664

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

665

writing, for each licensed entity, a qualified alternate

666

administrator to serve during the administrator's absence.

667

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

668

licensed physician, physician assistant, or registered nurse

669

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

670

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

671

director of nursing for up to the number of entities authorized

672

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

673

equivalent employees and contracted personnel in each home health

674

agency.

675

     (2) DIRECTOR OF NURSING.--

676

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

677

for:

678

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

679

have identical controlling interests as defined in s. 408.803 and

680

are located within one agency geographic service area or within

681

an immediately contiguous county; or

682

     2. Up to five licensed home health agencies if:

683

     a. All of the home health agencies have identical

684

controlling interests as defined in s. 408.803;

685

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

686

agency geographic service area or within an immediately

687

contiguous county; and

688

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

689

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

690

delegation from the director of nursing to serve as the director

691

of nursing for that home health agency when the director of

692

nursing is not present.

693

694

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

695

retirement community that provides multiple levels of care, an

696

employee of the retirement community may serve as the director of

697

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

698

entities, other than home health agencies, licensed under this

699

chapter or chapter 429 which all have identical controlling

700

interests as defined in s. 408.803.

701

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

702

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

703

of nursing. A home health agency that provides skilled nursing

704

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

705

notify the agency within 10 business days after termination of

706

the services of the director of nursing for the home health

707

agency. A home health agency that provides skilled nursing care

708

must notify the agency of the identity and qualifications of the

709

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

710

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

711

operates for more than 30 calendar days without a director of

712

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

713

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

714

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

715

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

716

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

717

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

718

not take administrative action against a home health agency if

719

the director of nursing fails to notify the department upon

720

termination of services as the director of nursing for the home

721

health agency.

722

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

723

occupational, or speech therapy is not required to have a

724

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

725

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

726

certified nursing assistant employed by or under contract with

727

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

728

under contract with the home health agency is adequately trained

729

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

730

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

731

within the state.

732

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

733

read:

734

     400.484  Right of inspection; deficiencies; fines.--

735

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

736

agency may make such inspections and investigations as are

737

necessary in order to determine the state of compliance with this

738

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

739

shall conduct an unannounced survey of each home health agency

740

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

741

agency.

742

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

743

deficiencies in accordance with the following schedule:

744

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

745

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

746

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

747

disablement, or permanent injury. Upon finding a class I

748

deficiency, the agency shall may impose an administrative fine in

749

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

750

that the deficiency exists.

751

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

752

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

753

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

754

agency shall may impose an administrative fine in the amount of

755

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

756

deficiency exists.

757

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

758

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

759

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

760

repeated class III deficiency, the agency shall may impose an

761

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

762

and each day that the uncorrected or repeated deficiency exists.

763

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

764

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

765

have the potential of negatively affecting patients. These

766

violations are of a type that the agency determines do not

767

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

768

finding an uncorrected or repeated class IV deficiency, the

769

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

770

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

771

repeated deficiency exists.

772

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

773

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

774

investigation that results in a successful prosecution, excluding

775

costs associated with an attorney's time.

776

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

777

read:

778

     400.488 Nurse delegation Assistance with self-

779

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

780

delegate nursing tasks as provided in chapter 464 and related

781

rules.

782

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

783

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

784

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

785

patient may be receiving assistance with self-administration of

786

medication from an unlicensed person.

787

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

788

licensed to practice nursing or medicine who is employed by or

789

under contract to a home health agency and who has received

790

training with respect to assisting with the self-administration

791

of medication as provided by agency rule.

792

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

793

own medications without assistance shall be encouraged and

794

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

795

with a dispensed prescription's label or the package directions

796

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

797

condition is medically stable with the self-administration of

798

routine, regularly scheduled medications that are intended to be

799

self-administered. Assistance with self-medication by an

800

unlicensed person may occur only upon a documented request by,

801

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

802

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

803

section, self-administered medications include both legend and

804

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

805

topical ophthalmic, otic, and nasal dosage forms, including

806

solutions, suspensions, sprays, and inhalers.

807

     (3) Assistance with self-administration of medication

808

includes:

809

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

810

properly labeled container, from where it is stored and bringing

811

it to the patient.

812

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

813

opening the container, removing a prescribed amount of medication

814

from the container, and closing the container.

815

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

816

the dosage in another container and helping the patient by

817

lifting the container to his or her mouth.

818

     (d) Applying topical medications.

819

     (e) Returning the medication container to proper storage.

820

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

821

with self-administration under this section.

822

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

823

     (a) Mixing, compounding, converting, or calculating

824

medication doses, except for measuring a prescribed amount of

825

liquid medication or breaking a scored tablet or crushing a

826

tablet as prescribed.

827

     (b) The preparation of syringes for injection or the

828

administration of medications by any injectable route.

829

     (c) Administration of medications through intermittent

830

positive pressure breathing machines or a nebulizer.

831

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

832

in a cavity of the body.

833

     (e) Administration of parenteral preparations.

834

     (f) Irrigations or debriding agents used in the treatment

835

of a skin condition.

836

     (g) Rectal, urethral, or vaginal preparations.

837

     (h) Medications ordered by the physician or health care

838

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

839

unless the order is written with specific parameters that

840

preclude independent judgment on the part of the unlicensed

841

person, and at the request of a competent patient.

842

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

843

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

844

the reason for administration requires judgment or discretion on

845

the part of the unlicensed person.

846

     (5) Assistance with the self-administration of medication

847

by an unlicensed person as described in this section does not

848

constitute administration as defined in s. 465.003.

849

     (6) The agency may by rule establish procedures and

850

interpret terms as necessary to administer this section.

851

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

852

Statutes, is amended to read:

853

     400.491  Clinical records.--

854

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

855

who receives nonskilled care a service provision plan. Such

856

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

857

1 year following termination of services.

858

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

859

section 400.497, Florida Statutes, are renumbered as subsections

860

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

861

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

862

     400.497  Rules establishing minimum standards.--The agency

863

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

864

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

865

and 400.509, which must provide reasonable and fair minimum

866

standards relating to:

867

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

868

develop rules related to:

869

     (a) Standards that address oversight responsibilities by

870

the director of nursing of skilled nursing and personal care

871

services provided by the home health agency's staff;

872

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

873

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

874

health services provided by a specified direct employee or

875

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

876

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

877

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

878

     (c) A quality assurance program for home health services

879

provided by the home health agency.

880

     (6) Conditions for using a recent unannounced licensure

881

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

882

licensure application associated with a change in ownership of a

883

licensed home health agency.

884

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

885

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

886

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

887

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

888

section, to read:

889

     400.506  Licensure of nurse registries; requirements;

890

penalties.--

891

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

892

residences registered nurses and licensed practical nurses

893

registered and licensed under part I of chapter 464, certified

894

nursing assistants certified under part II of chapter 464, home

895

health aides who present documented proof of successful

896

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

897

companions or homemakers for the purposes of providing those

898

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

899

registry shall ensure that each certified nursing assistant

900

referred for contract by the nurse registry and each home health

901

aide referred for contract by the nurse registry is adequately

902

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

903

setting. Each person referred by a nurse registry must provide

904

current documentation that he or she is free from communicable

905

diseases.

906

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

907

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

908

against a nurse registry that:

909

     1. Provides services to residents in an assisted living

910

facility for which the nurse registry does not receive fair

911

market value remuneration.

912

     2. Provides staffing to an assisted living facility for

913

which the nurse registry does not receive fair market value

914

remuneration.

915

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

916

of all contracts with assisted living facilities which were

917

executed within the last 5 years.

918

     4. Gives remuneration to a case manager, discharge

919

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

920

is involved in the discharge-planning process of a facility

921

licensed under chapter 395 or this chapter and from whom the

922

nurse registry receives referrals.

923

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

924

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

925

physician, and the nurse registry received a patient referral

926

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

927

office staff.

928

     (b) The agency shall also impose an administrative fine

929

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

930

nursing assistants, home health aides, or other staff without

931

charge to a facility licensed under chapter 429 in return for

932

patient referrals from the facility.

933

     (c) The proceeds of all fines collected under this

934

subsection shall be deposited into the Health Care Trust Fund.

935

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

936

Florida Statutes, to read:

937

     400.518  Prohibited referrals to home health agencies.--

938

     (4) The agency shall impose an administrative fine of

939

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

940

nursing assistants, home health aides, or other staff without

941

charge to a facility licensed under chapter 429 in return for

942

patient referrals from the facility. The proceeds of such fines

943

shall be deposited into the Health Care Trust Fund.

944

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

945

Statutes, is amended to read:

946

409.906  Optional Medicaid services.--Subject to specific

947

appropriations, the agency may make payments for services which

948

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

949

Act and are furnished by Medicaid providers to recipients who are

950

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

951

provided. Any optional service that is provided shall be provided

952

only when medically necessary and in accordance with state and

953

federal law. Optional services rendered by providers in mobile

954

units to Medicaid recipients may be restricted or prohibited by

955

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

956

or limit the agency from adjusting fees, reimbursement rates,

957

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

958

making any other adjustments necessary to comply with the

959

availability of moneys and any limitations or directions provided

960

for in the General Appropriations Act or chapter 216. If

961

necessary to safeguard the state's systems of providing services

962

to elderly and disabled persons and subject to the notice and

963

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

964

Agency for Health Care Administration to amend the Medicaid state

965

plan to delete the optional Medicaid service known as

966

"Intermediate Care Facilities for the Developmentally Disabled."

967

Optional services may include:

968

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

969

and pay for certain durable medical equipment and supplies

970

provided to a Medicaid recipient as medically necessary. As of

971

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

972

medical equipment and supplies to providers who meet all of the

973

criteria in this subsection.

974

     (a) Durable medical equipment and medical supply providers

975

must be accredited by an Agency for Health Care Administration

976

approved accreditation organization specifically designated as a

977

durable medical equipment accrediting organization. The provider

978

must be re-accredited periodically and is subject to unannounced

979

reviews by the accrediting organization.

980

     (b) Durable medical equipment and medical supply providers

981

must have a physical business location with durable medical

982

equipment and medical supplies on site and must be readily

983

available to the general public. The physical business location

984

must meet the following criteria:

985

     1. The location must maintain a substantial inventory that

986

is readily available and sufficient to meet the needs of the

987

durable medical equipment business location's customers;

988

     2. The location must be clearly identified with signage

989

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

990

business location as a business that furnishes durable medical

991

equipment, medical supplies, or both;

992

     3. The location must have a functional landline business

993

telephone;

994

     4. The physical business location may not be located within

995

or at the same numbered street address as another Medicaid-

996

enrolled durable medical equipment and medical supply provider or

997

an enrolled Medicaid pharmacy that is also enrolled as a durable

998

medical equipment provider. A location within or at the same

999

numbered street address includes unique suite or storefront

1000

numbers assigned by the United States Postal Service or the

1001

building's owner;

1002

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

1003

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

1004

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

1005

of unique durable medical equipment that is not otherwise

1006

available from other durable medical equipment distributors or

1007

providers located within the state; and

1008

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

1009

business that is located more than 50 miles from the Florida

1010

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

1011

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

1012

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

1013

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

1014

scheduled and posted holidays.

1015

     (c) Durable medical equipment and medical supply providers

1016

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

1017

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

1018

$250,000 statewide as identified per federal employer

1019

identification number. Providers who qualify for a statewide or

1020

an aggregate bond must identify all of their locations in any

1021

enrollment application or bond renewal as a Medicaid durable

1022

medical equipment and medical supply provider. Each provider

1023

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

1024

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

1025

continuous bond.

1026

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

1027

435.04, is required as a condition of employment for provider

1028

staff in direct contact with and providing direct services to

1029

recipients of durable medical equipment and medical supplies in

1030

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

1031

repair and service technicians, fitters, and delivery staff.

1032

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

1033

and (c):

1034

     1. A durable medical equipment and medical supply provider

1035

owned and operated by a governmental entity;

1036

     2. A durable medical equipment and medical supply provider

1037

that is operating within a pharmacy that is currently enrolled as

1038

a Medicaid pharmacy provider; and

1039

     3. An active Medicaid-enrolled orthopedic physician's

1040

group, primarily owned by physicians, which is providing only

1041

orthotic and prosthetic devices.

1042

     Section 13. The Agency for Health Care Administration shall

1043

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

1044

the prior authorization of home health agency visits that are in

1045

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

1046

The agency shall determine whether modifications are necessary in

1047

order to reduce Medicaid fraud and abuse related to home health

1048

services for a Medicaid recipient which are not medically

1049

necessary. If modifications to the prior authorization function

1050

are necessary, the agency shall amend the contract to require

1051

contractor performance that reduces potential Medicaid fraud and

1052

abuse with respect to home health agency visits.

1053

     Section 14. The Agency for Health Care Administration shall

1054

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

1055

and costs of accessing the Medicare system to disallow Medicaid

1056

payment for home health services that are paid for under the

1057

Medicare prospective payment system for recipients who are dually

1058

eligible for Medicaid and Medicare.

1059

     Section 15. The sum of $614,831 is appropriated to the

1060

Agency for Health Care Administration from the Health Care Trust

1061

Fund for the 2008-2009 fiscal year, and six full-time equivalent

1062

positions along with an associated salary rate of 331,602 are

1063

authorized for the purpose of implementing the provisions of this

1064

act.

1065

     Section 16. The sum of $282,078 is appropriated to the

1066

Agency for Health Care Administration from the Administrative

1067

Trust Fund for the 2008-2009 fiscal year, and four full-time

1068

equivalent positions along with an associated salary rate of

1069

174,752 are authorized for the purpose of implementing the

1070

provisions of this act.

1071

     Section 17.  This act shall take effect July 1, 2008.