HB 1401

1	A bill to be entitled
2	An act relating to adult protection and care; amending s.
3	429.28, F.S.; specifying certain conditions for transfer
4	or discharge of a resident in an assisted living facility
5	in the facility's resident bill of rights; creating s.
6	429.285, F.S.; providing definitions; prohibiting resident
7	transfer or discharge in the absence of certain specified
8	conditions; requiring the facility to provide notice to
9	the Agency for Health Care Administration when
10	transferring or discharging a resident; providing for
11	onsite inspection of the facility upon receipt of such
12	notice; authorizing residents to challenge transfer or
13	discharge decisions; providing for reimbursement of bed
14	reservation payments; specifying timeframes for resident
15	notice upon transfer or discharge; providing circumstances
16	for acceleration of timeframes; clarifying certain notice
17	requirements; permitting residents to seek the assistance
18	of the local long-term care ombudsmen council in reviewing
19	a notice of transfer or discharge and in initiating the
20	fair hearing process; providing timeframes for requesting
21	and holding a fair hearing to challenge a facility's
22	proposed transfer or discharge; providing for emergency
23	transfers and discharges; permitting the local long-term
24	care ombudsmen council to request private informal contact
25	with a resident upon receipt of a notice to transfer or
26	discharge; providing that the Department of Children and
27	Family Services' Office of Appeals Hearings shall conduct
28	certain hearings; requiring certain persons to be present
29	at the hearing; providing hearing requirements;
30	authorizing the agency to adopt rules; amending ss. 429.07
31	and 429.31, F.S.; conforming cross-references; providing
32	an effective date.
33
34	Be It Enacted by the Legislature of the State of Florida:
35
36	Section 1.  Paragraph (k) of subsection (1) of section
37	429.28, Florida Statutes, is amended to read:
38	429.28  Resident bill of rights.--
39	(1)  No resident of a facility shall be deprived of any
40	civil or legal rights, benefits, or privileges guaranteed by
41	law, the Constitution of the State of Florida, or the
42	Constitution of the United States as a resident of a facility.
43	Every resident of a facility shall have the right to:
44	(k)  Be transferred or discharged only for the reasons
45	specified under s. 429.285 and only after following procedures
46	required by that section. A facility licensed under this part
47	may not transfer or discharge a resident solely because the
48	source of payment for care changes. Admission to a facility
49	licensed under this part may not be conditioned upon a waiver of
50	such right, and any document or provision in a document which
51	purports to waive or preclude such right is void and
52	unenforceable. The resident and the family or representative of
53	the resident shall be consulted in choosing another facility. At
54	least 45 days' notice of relocation or termination of residency
55	from the facility unless, for medical reasons, the resident is
56	certified by a physician to require an emergency relocation to a
57	facility providing a more skilled level of care or the resident
58	engages in a pattern of conduct that is harmful or offensive to
59	other residents. In the case of a resident who has been
60	adjudicated mentally incapacitated, the guardian shall be given
61	at least 45 days' notice of a nonemergency relocation or
62	residency termination. Reasons for relocation shall be set forth
63	in writing. In order for a facility to terminate the residency
64	of an individual without notice as provided herein, the facility
65	shall show good cause in a court of competent jurisdiction.
66	Section 2.  Section 429.285, Florida Statutes, is created
67	to read:
68	429.285  Resident transfer or discharge; requirements and
69	procedures; hearings.--
70	(1)  As used in this section, the term:
71	(a)  "Discharge" means to move a resident to a
72	noninstitutional setting when the releasing facility ceases to
73	be responsible for the resident's care.
74	(b)  "Transfer" means to move a resident from the facility
75	to another legally responsible institutional setting.
76	(2)  A facility licensed under this part must permit a
77	resident to remain in the facility. A resident may not be
78	transferred or discharged from the facility unless:
79	(a)  The transfer or discharge is necessary for the
80	resident's welfare and the resident's needs cannot be met in the
81	facility;
82	(b)  The transfer or discharge is appropriate because the
83	resident's health has improved sufficiently so the resident no
84	longer needs the services provided by the facility;
85	(c)  The health and safety of other residents or facility
86	employees would be endangered;
87	(d)  The resident has failed, after reasonable and
88	appropriate notice, to provide payment for his or her stay in
89	the facility; or
90	(e)  The facility ceases to operate.
91	(3)  When a transfer or discharge is initiated by the
92	assisted living facility, the administrator of the facility that
93	is transferring or discharging the resident, or an individual
94	employed by the facility who is designated by the administrator
95	of the facility to act on behalf of the administration, must
96	sign the notice of transfer or discharge. Any notice indicating
97	a medical reason for transfer or discharge must be signed by the
98	resident's attending physician or include an attached written
99	order for the transfer or discharge. The notice or the order
100	must be signed by the resident's physician, treating physician,
101	nurse practitioner, or physician assistant.
102	(4)(a)  Each facility must notify the agency of any
103	proposed transfer or discharge of a resident when such transfer
104	or discharge is necessitated by changes in the physical plant of
105	the facility that make the facility unsafe for the resident.
106	(b)  Upon receipt of such a notice, the agency shall
107	conduct an onsite inspection of the facility to verify the
108	necessity of the transfer or discharge.
109	(5)  A resident of a facility may challenge a decision by
110	the facility to transfer or discharge the resident.
111	(6)  A facility that has been reimbursed for reserving a
112	bed and, for reasons other than those permitted under this
113	section, refuses to readmit a resident within the prescribed
114	timeframe shall refund the bed reservation payment.
115	(7)  At least 30 days prior to any proposed transfer or
116	discharge, a facility must provide advance notice of the
117	proposed transfer or discharge to the resident and, if known, to
118	a family member or the resident's legal guardian or
119	representative, except that in the following circumstances the
120	facility shall give notice as soon as practicable before the
121	transfer or discharge:
122	(a)  The transfer or discharge is necessary for the
123	resident's welfare and the resident's needs cannot be met in the
124	facility, and the circumstances are documented in the resident's
125	medical records by the resident's physician; or
126	(b)  The health or safety of other residents or facility
127	employees would be endangered, and the circumstances are
128	documented in the resident's medical records by the resident's
129	physician or the medical director if the resident's physician is
130	not available.
131	(8)  The notice required by subsection (7) must be in
132	writing and must contain all information required by state and
133	federal law, rules, or regulations applicable to Medicaid or
134	Medicare cases. The agency shall develop a standard document to
135	be used by all facilities licensed under this part for purposes
136	of notifying residents of a transfer or discharge. Such document
137	must include a means for a resident to request the local long-
138	term care ombudsman council to review the notice and request
139	information about or assistance with initiating a fair hearing
140	with the Department of Children and Family Services' Office of
141	Appeals Hearings. In addition to any other pertinent information
142	included, the form shall:
143	(a)  Specify the reason allowed under federal or state law
144	that the resident is being transferred or discharged, with an
145	explanation to support this action.
146	(b)  State the effective date of the transfer or discharge
147	and the location to which the resident is being transferred or
148	discharged.
149	(c)  Clearly describe the resident's right to appeal and
150	the procedures for filing an appeal, including the right to
151	request the local long-term care ombudsman council to review the
152	notice of transfer or discharge.
153
154	A copy of the notice must be placed in the resident's clinical
155	record, and a copy must be transmitted to the resident's legal
156	guardian or representative and to the local long-term care
157	ombudsman council within 5 business days after signature by the
158	resident or the resident's legal guardian or representative .
159	(9)  A resident may request that the local long-term care
160	ombudsman council review any notice of transfer or discharge
161	given to the resident. When requested by a resident to review a
162	notice of transfer or discharge, the local long-term care
163	ombudsman council shall do so within 7 days after receipt of the
164	request. The facility administrator, or the administrator's
165	designee, must forward the request for review contained in the
166	notice to the local long-term care ombudsman council within 24
167	hours after such request is submitted. Failure to forward the
168	request within 24 hours after the request is submitted shall
169	toll the running of the 30-day advance notice period until the
170	request has been forwarded.
171	(10)(a)  A resident is entitled to a fair hearing to
172	challenge a facility's proposed transfer or discharge. The
173	resident or the resident's legal guardian or representative may
174	request a hearing at any time within 90 days after the
175	resident's receipt of the facility's notice of the proposed
176	transfer or discharge.
177	(b)  If a resident or the resident's legal guardian or
178	representative requests a hearing within 10 days after receiving
179	the notice from the facility, the request shall stay the
180	proposed transfer or discharge pending a hearing decision. The
181	facility may not take action, and the resident may remain in the
182	facility, until the outcome of the initial fair hearing, which
183	must be completed within 90 days after receipt of a request for
184	a fair hearing.
185	(c)  If the resident or the resident's legal guardian or
186	representative fails to request a hearing within 10 days after
187	receipt of the facility notice of the proposed transfer or
188	discharge, the facility may transfer or discharge the resident
189	after 30 days from the date the resident received the notice.
190	(11)  Notwithstanding paragraph (10)(b), an emergency
191	transfer or discharge may be implemented as necessary pursuant
192	to state law during the period of time after the notice is given
193	and before the time a hearing decision is rendered. Notice of an
194	emergency transfer or discharge to the resident, the resident's
195	legal guardian or representative, and the local long-term care
196	ombudsman council if requested pursuant to subsection (9) must
197	be by telephone or in person. This notice shall be given before
198	the transfer or discharge, if possible, or as soon thereafter as
199	practicable. A local long-term care ombudsman council conducting
200	a review under this subsection shall do so within 24 hours after
201	receipt of the request. The resident's file must be documented
202	to show who was contacted, whether the contact was by telephone
203	or in person, and the date and time of the contact. If the
204	notice is not given in writing, written notice meeting the
205	requirements of subsection (8) must be given the next working
206	day.
207	(12)  After receipt of any notice required under this
208	section, the local long-term care ombudsman council may request
209	a private informal conversation with a resident to whom the
210	notice is directed, and, if known, a family member or the
211	resident's legal guardian or representative, to ensure that the
212	facility is proceeding with the transfer or discharge in
213	accordance with the requirements of this section. If requested,
214	the local long-term care ombudsman council shall assist the
215	resident with filing an appeal of the proposed transfer or
216	discharge.
217	(13)  The following persons must be present at all hearings
218	authorized under this section:
219	(a)  The resident or the resident's legal guardian or
220	representative.
221	(b)  The facility administrator or the facility's legal
222	representative or designee.
223
224	A representative of the local long-term care ombudsman council
225	may be present at all hearings authorized by this section.
226	(14)(a)  The Department of Children and Family Services'
227	Office of Appeals Hearings shall conduct a hearing under this
228	section. The office shall notify the facility of a resident's
229	request for a hearing.
230	(b)  The Department of Children and Family Services shall,
231	by rule, establish procedures to be used for fair hearings
232	requested by residents. These procedures shall be equivalent to
233	the procedures used for fair hearings for other Medicaid cases,
234	chapter 10-2, part VI, Florida Administrative Code. The burden
235	of proof must be clear and convincing evidence. A hearing
236	decision must be rendered within 90 days after receipt of the
237	request for hearing.
238	(c)  If the hearing decision is favorable to the resident
239	who has been transferred or discharged, the resident must be
240	readmitted to the facility's first available bed.
241	(d)  The decision of the hearing officer shall be final.
242	Any aggrieved party may appeal the decision to the district
243	court of appeal in the appellate district in which the facility
244	is located. Review procedures shall be conducted in accordance
245	with the Florida Rules of Appellate Procedure.
246	(15)  The agency may adopt rules pursuant to ss. 120.536(1)
247	and 120.54 to administer this section.
248	Section 3.  Paragraphs (b) and (c) of subsection (3) of
249	section 429.07, Florida Statutes, are amended to read:
250	429.07  License required; fee.--
251	(3)  In addition to the requirements of s. 408.806, each
252	license granted by the agency must state the type of care for
253	which the license is granted. Licenses shall be issued for one
254	or more of the following categories of care: standard, extended
255	congregate care, limited nursing services, or limited mental
256	health.
257	(b)  An extended congregate care license shall be issued to
258	facilities providing, directly or through contract, services
259	beyond those authorized in paragraph (a), including acts
260	performed pursuant to part I of chapter 464 by persons licensed
261	thereunder, and supportive services defined by rule to persons
262	who otherwise would be disqualified from continued residence in
263	a facility licensed under this part.
264	1.  In order for extended congregate care services to be
265	provided in a facility licensed under this part, the agency must
266	first determine that all requirements established in law and
267	rule are met and must specifically designate, on the facility's
268	license, that such services may be provided and whether the
269	designation applies to all or part of a facility. Such
270	designation may be made at the time of initial licensure or
271	relicensure, or upon request in writing by a licensee under this
272	part and part II of chapter 408. Notification of approval or
273	denial of such request shall be made in accordance with part II
274	of chapter 408. Existing facilities qualifying to provide
275	extended congregate care services must have maintained a
276	standard license and may not have been subject to administrative
277	sanctions during the previous 2 years, or since initial
278	licensure if the facility has been licensed for less than 2
279	years, for any of the following reasons:
280	a.  A class I or class II violation;
281	b.  Three or more repeat or recurring class III violations
282	of identical or similar resident care standards as specified in
283	rule from which a pattern of noncompliance is found by the
284	agency;
285	c.  Three or more class III violations that were not
286	corrected in accordance with the corrective action plan approved
287	by the agency;
288	d.  Violation of resident care standards resulting in a
289	requirement to employ the services of a consultant pharmacist or
290	consultant dietitian;
291	e.  Denial, suspension, or revocation of a license for
292	another facility under this part in which the applicant for an
293	extended congregate care license has at least 25 percent
294	ownership interest; or
295	f.  Imposition of a moratorium pursuant to this part or
296	part II of chapter 408 or initiation of injunctive proceedings.
297	2.  Facilities that are licensed to provide extended
298	congregate care services shall maintain a written progress
299	report on each person who receives such services, which report
300	describes the type, amount, duration, scope, and outcome of
301	services that are rendered and the general status of the
302	resident's health. A registered nurse, or appropriate designee,
303	representing the agency shall visit such facilities at least
304	quarterly to monitor residents who are receiving extended
305	congregate care services and to determine if the facility is in
306	compliance with this part, part II of chapter 408, and rules
307	that relate to extended congregate care. One of these visits may
308	be in conjunction with the regular survey. The monitoring visits
309	may be provided through contractual arrangements with
310	appropriate community agencies. A registered nurse shall serve
311	as part of the team that inspects such facility. The agency may
312	waive one of the required yearly monitoring visits for a
313	facility that has been licensed for at least 24 months to
314	provide extended congregate care services, if, during the
315	inspection, the registered nurse determines that extended
316	congregate care services are being provided appropriately, and
317	if the facility has no class I or class II violations and no
318	uncorrected class III violations. Before such decision is made,
319	the agency shall consult with the long-term care ombudsman
320	council for the area in which the facility is located to
321	determine if any complaints have been made and substantiated
322	about the quality of services or care. The agency may not waive
323	one of the required yearly monitoring visits if complaints have
324	been made and substantiated.
325	3.  Facilities that are licensed to provide extended
326	congregate care services shall:
327	a.  Demonstrate the capability to meet unanticipated
328	resident service needs.
329	b.  Offer a physical environment that promotes a homelike
330	setting, provides for resident privacy, promotes resident
331	independence, and allows sufficient congregate space as defined
332	by rule.
333	c.  Have sufficient staff available, taking into account
334	the physical plant and firesafety features of the building, to
335	assist with the evacuation of residents in an emergency, as
336	necessary.
337	d.  Adopt and follow policies and procedures that maximize
338	resident independence, dignity, choice, and decisionmaking to
339	permit residents to age in place to the extent possible, so that
340	moves due to changes in functional status are minimized or
341	avoided.
342	e.  Allow residents or, if applicable, a resident's
343	representative, designee, surrogate, guardian, or attorney in
344	fact to make a variety of personal choices, participate in
345	developing service plans, and share responsibility in
346	decisionmaking.
347	f.  Implement the concept of managed risk.
348	g.  Provide, either directly or through contract, the
349	services of a person licensed pursuant to part I of chapter 464.
350	h.  In addition to the training mandated in s. 429.52,
351	provide specialized training as defined by rule for facility
352	staff.
353	4.  Facilities licensed to provide extended congregate care
354	services are exempt from the criteria for continued residency as
355	set forth in rules adopted under s. 429.41. Facilities so
356	licensed shall adopt their own requirements within guidelines
357	for continued residency set forth by rule. However, such
358	facilities may not serve residents who require 24-hour nursing
359	supervision. Facilities licensed to provide extended congregate
360	care services shall provide each resident with a written copy of
361	facility policies governing admission and retention.
362	5.  The primary purpose of extended congregate care
363	services is to allow residents, as they become more impaired,
364	the option of remaining in a familiar setting from which they
365	would otherwise be disqualified for continued residency. A
366	facility licensed to provide extended congregate care services
367	may also admit an individual who exceeds the admission criteria
368	for a facility with a standard license, if the individual is
369	determined appropriate for admission to the extended congregate
370	care facility.
371	6.  Before admission of an individual to a facility
372	licensed to provide extended congregate care services, the
373	individual must undergo a medical examination as provided in s.
374	429.26(4) and the facility must develop a preliminary service
375	plan for the individual.
376	7.  When a facility can no longer provide or arrange for
377	services in accordance with the resident's service plan and
378	needs and the facility's policy, the facility shall make
379	arrangements for relocating the person in accordance with s.
380	429.285 429.28(1)(k).
381	8.  Failure to provide extended congregate care services
382	may result in denial of extended congregate care license
383	renewal.
384	9.  No later than January 1 of each year, the department,
385	in consultation with the agency, shall prepare and submit to the
386	Governor, the President of the Senate, the Speaker of the House
387	of Representatives, and the chairs of appropriate legislative
388	committees, a report on the status of, and recommendations
389	related to, extended congregate care services. The status report
390	must include, but need not be limited to, the following
391	information:
392	a.  A description of the facilities licensed to provide
393	such services, including total number of beds licensed under
394	this part.
395	b.  The number and characteristics of residents receiving
396	such services.
397	c.  The types of services rendered that could not be
398	provided through a standard license.
399	d.  An analysis of deficiencies cited during licensure
400	inspections.
401	e.  The number of residents who required extended
402	congregate care services at admission and the source of
403	admission.
404	f.  Recommendations for statutory or regulatory changes.
405	g.  The availability of extended congregate care to state
406	clients residing in facilities licensed under this part and in
407	need of additional services, and recommendations for
408	appropriations to subsidize extended congregate care services
409	for such persons.
410	h.  Such other information as the department considers
411	appropriate.
412	(c)  A limited nursing services license shall be issued to
413	a facility that provides services beyond those authorized in
414	paragraph (a) and as specified in this paragraph.
415	1.  In order for limited nursing services to be provided in
416	a facility licensed under this part, the agency must first
417	determine that all requirements established in law and rule are
418	met and must specifically designate, on the facility's license,
419	that such services may be provided. Such designation may be made
420	at the time of initial licensure or relicensure, or upon request
421	in writing by a licensee under this part and part II of chapter
422	408. Notification of approval or denial of such request shall be
423	made in accordance with part II of chapter 408. Existing
424	facilities qualifying to provide limited nursing services shall
425	have maintained a standard license and may not have been subject
426	to administrative sanctions that affect the health, safety, and
427	welfare of residents for the previous 2 years or since initial
428	licensure if the facility has been licensed for less than 2
429	years.
430	2.  Facilities that are licensed to provide limited nursing
431	services shall maintain a written progress report on each person
432	who receives such nursing services, which report describes the
433	type, amount, duration, scope, and outcome of services that are
434	rendered and the general status of the resident's health. A
435	registered nurse representing the agency shall visit such
436	facilities at least twice a year to monitor residents who are
437	receiving limited nursing services and to determine if the
438	facility is in compliance with applicable provisions of this
439	part, part II of chapter 408, and related rules. The monitoring
440	visits may be provided through contractual arrangements with
441	appropriate community agencies. A registered nurse shall also
442	serve as part of the team that inspects such facility.
443	3.  A person who receives limited nursing services under
444	this part must meet the admission criteria established by the
445	agency for assisted living facilities. When a resident no longer
446	meets the admission criteria for a facility licensed under this
447	part, arrangements for relocating the person shall be made in
448	accordance with s. 429.285 429.28(1)(k), unless the facility is
449	licensed to provide extended congregate care services.
450	Section 4.  Subsection (1) of section 429.31, Florida
451	Statutes, is amended to read:
452	429.31  Closing of facility; notice; penalty.--
453	(1)  In addition to the requirements of part II of chapter
454	408, the facility shall inform each resident or the next of kin,
455	legal representative, or agency acting on each resident's
456	behalf, of the fact and the proposed time of discontinuance of
457	operation, following the notification requirements provided in
458	s. 429.285 429.28(1)(k). In the event a resident has no person
459	to represent him or her, the facility shall be responsible for
460	referral to an appropriate social service agency for placement.
461	Section 5.  This act shall take effect July 1, 2008.

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