HB 5005

1
A bill to be entitled
2An act relating to trust funds of the Agency for Health
3Care Administration; terminating the Florida Organ and
4Tissue Donor Education and Procurement Trust Fund and the
5Resident Protection Trust Fund; providing for the
6disposition of the balances in and revenues of the trust
7funds; prescribing procedures for the termination of the
8trust funds; amending s. 20.425, F.S.; providing for the
9administration of the Administrative Trust Fund, the
10Grants and Donations Trust Fund, the Health Care Trust
11Fund, the Medical Care Trust Fund, the Public Medical
12Assistance Trust Fund, the Quality of Long-Term Care
13Facility Improvement Trust Fund, and the Refugee
14Assistance Trust Fund by the Agency for Health Care
15Administration; providing for sources of funds and
16purposes; providing for annual carryforward of funds;
17revising the date for reversion of specified balances in
18the Tobacco Settlement Trust Fund; amending ss. 215.20,
19320.08047, 322.08, 393.0673, and 393.0678, F.S., to
20conform; amending s. 394.903, F.S.; conforming a cross-
21reference; repealing s. 394.904, F.S., which creates the
22Health Care Trust Fund, to conform; amending s. 400.062,
23F.S.; to conform; clarifying provisions with respect to
24amounts on deposit in the Health Care Trust Fund which
25control the setting of specified rates that comprise a
26portion of licensing fees for nursing homes and general
27health care licensing; removing obsolete language, to
28conform; amending ss. 400.063, 400.121, 400.126, 400.162,
29400.966, and 765.515, F.S., to conform; repealing s.
30765.52155, F.S., which creates the Florida Organ and
31Tissue Donor Education and Procurement Trust Fund, to
32conform; amending s. 765.544, F.S., to conform; providing
33an effective date.
34
35Be It Enacted by the Legislature of the State of Florida:
36
37     Section 1.  (1)  The Florida Organ and Tissue Donor
38Education and Procurement Trust Fund within the Agency for
39Health Care Administration, FLAIR number 68-2-509, is
40terminated.
41     (2)  All current balances remaining in, and all revenues
42of, the trust fund shall be transferred to the Health Care Trust
43Fund within the Agency for Health Care Administration, FLAIR
44number 68-2-003.
45     (3)  The Agency for Health Care Administration shall pay
46any outstanding debts and obligations of the terminated fund as
47soon as practicable, and the Chief Financial Officer shall close
48out and remove the terminated fund from the various state
49accounting systems using generally accepted accounting
50principles concerning warrants outstanding, assets, and
51liabilities.
52     Section 2.  (1)  The Resident Protection Trust Fund within
53the Agency for Health Care Administration, FLAIR number 68-2-
54522, is terminated.
55     (2)  All current balances remaining in, and all revenues
56of, the trust fund shall be transferred to the Health Care Trust
57Fund within the Agency for Health Care Administration, FLAIR
58number 68-2-003.
59     (3)  The Agency for Health Care Administration shall pay
60any outstanding debts and obligations of the terminated fund as
61soon as practicable, and the Chief Financial Officer shall close
62out and remove the terminated fund from the various state
63accounting systems using generally accepted accounting
64principles concerning warrants outstanding, assets, and
65liabilities.
66     Section 3.  Section 20.425, Florida Statutes, is amended to
67read:
68     20.425  Agency for Health Care Administration; trust funds
69Tobacco Settlement Trust Fund.--The following trust funds shall
70be administered by the Agency for Health Care Administration:
71     (1)  Administrative Trust Fund.
72     (a)  Funds to be credited to and uses of the trust fund
73shall be administered in accordance with the provisions of s.
74215.32.
75     (b)  Notwithstanding the provisions of s. 216.301 and
76pursuant to s. 216.351, any balance in the trust fund at the end
77of any fiscal year shall remain in the trust fund at the end of
78the year and shall be available for carrying out the purposes of
79the trust fund.
80     (2)  Grants and Donations Trust Fund.
81     (a)  Funds to be credited to and uses of the trust fund
82shall be administered in accordance with the provisions of ss.
83215.32 and 409.916.
84     (b)  Notwithstanding the provisions of s. 216.301 and
85pursuant to s. 216.351, any balance in the trust fund at the end
86of any fiscal year shall remain in the trust fund at the end of
87the year and shall be available for carrying out the purposes of
88the trust fund.
89     (3)  Health Care Trust Fund.
90     (a)  Funds to be credited to and uses of the trust fund
91shall be administered in accordance with the provisions of ss.
92400.063 and 408.16.
93     (b)  Notwithstanding the provisions of s. 216.301 and
94pursuant to s. 216.351, any balance in the trust fund at the end
95of any fiscal year shall remain in the trust fund at the end of
96the year and shall be available for carrying out the purposes of
97the trust fund.
98     (4)  Medical Care Trust Fund.
99     (a)  Funds to be credited to the trust fund shall consist
100of receipts from federal grants and shall be used for the
101purpose of providing health care services to individuals
102eligible pursuant to the requirement and limitation of Title XIX
103and Title XXI of the Social Security Act, as amended, and for
104other such purposes as may be appropriate.
105     (b)  Notwithstanding the provisions of s. 216.301 and
106pursuant to s. 216.351, any balance in the trust fund at the end
107of any fiscal year shall remain in the trust fund at the end of
108the year and shall be available for carrying out the purposes of
109the trust fund.
110     (5)  Public Medical Assistance Trust Fund.
111     (a)  Funds to be credited to and uses of the trust fund
112shall be administered in accordance with the provisions of ss.
113394.4786 and 409.918.
114     (b)  Notwithstanding the provisions of s. 216.301 and
115pursuant to s. 216.351, any balance in the trust fund at the end
116of any fiscal year shall remain in the trust fund at the end of
117the year and shall be available for carrying out the purposes of
118the trust fund.
119     (6)  Quality of Long-Term Care Facility Improvement Trust
120Fund.
121     (a)  Funds to be credited to and uses of the trust fund
122shall be administered in accordance with the provisions of s.
123400.0239.
124     (b)  Notwithstanding the provisions of s. 216.301 and
125pursuant to s. 216.351, any balance in the trust fund at the end
126of any fiscal year shall remain in the trust fund at the end of
127the year and shall be available for carrying out the purposes of
128the trust fund.
129     (7)  Refugee Assistance Trust Fund.
130     (a)  Funds to be credited to the trust fund shall consist
131of federal grant funds under the Refugee Resettlement Program
132and the Cuban/Haitian Entrant Program and shall be used for the
133purpose of providing medical assistance to individuals eligible
134pursuant to the requirements and limitations of 45 C.F.R. parts
135400 and 401, as amended, or any other applicable federal
136requirement or limitation.
137     (b)  Notwithstanding the provisions of s. 216.301 and
138pursuant to s. 216.351, any balance in the trust fund at the end
139of any fiscal year shall remain in the trust fund at the end of
140the year and shall be available for carrying out the purposes of
141the trust fund.
142     (8)  Tobacco Settlement Trust Fund.
143     (a)  The Agency for Health Care Administration Tobacco
144Settlement Trust Fund is created within the agency. Funds to be
145credited to the trust fund shall consist of funds disbursed, by
146nonoperating transfer, from the Department of Financial Services
147Tobacco Settlement Clearing Trust Fund in amounts equal to the
148annual appropriations made from this trust fund.
149     (b)(2)  Notwithstanding the provisions of s. 216.301 and
150pursuant to s. 216.351, any unencumbered balance in the trust
151fund at the end of any fiscal year and any encumbered balance
152remaining undisbursed on September 30 December 31 of the same
153calendar year shall revert to the Department of Financial
154Services Tobacco Settlement Clearing Trust Fund.
155     Section 4.  Paragraph (a) of subsection (4) of section
156215.20, Florida Statutes, is amended to read:
157     215.20  Certain income and certain trust funds to
158contribute to the General Revenue Fund.--
159     (4)  The income of a revenue nature deposited in the
160following described trust funds, by whatever name designated, is
161that from which the appropriations authorized by subsection (3)
162shall be made:
163     (a)  Within the Agency for Health Care Administration,:
164     1.  The Florida Organ and Tissue Donor Education and
165Procurement Trust Fund.
166     2.  the Health Care Trust Fund.
167     3.  The Resident Protection Trust Fund.
168
169The enumeration of the foregoing moneys or trust funds shall not
170prohibit the applicability thereto of s. 215.24 should the
171Governor determine that for the reasons mentioned in s. 215.24
172the money or trust funds should be exempt herefrom, as it is the
173purpose of this law to exempt income from its force and effect
174when, by the operation of this law, federal matching funds or
175contributions or private grants to any trust fund would be lost
176to the state.
177     Section 5.  Section 320.08047, Florida Statutes, is amended
178to read:
179     320.08047  Voluntary contribution for organ and tissue
180donor education.--As a part of the collection process for
181license taxes as specified in s. 320.08, individuals shall be
182permitted to make a voluntary contribution of $1, which
183contribution shall be deposited into the Health Care Trust Fund
184Florida Organ and Tissue Donor Education and Procurement Trust
185Fund for organ and tissue donor education and for maintaining
186the organ and tissue donor registry.
187     Section 6.  Paragraph (b) of subsection (6) of section
188322.08, Florida Statutes, is amended to read:
189     322.08  Application for license.--
190     (6)  The application form for a driver's license or
191duplicate thereof shall include language permitting the
192following:
193     (b)  A voluntary contribution of $1 per applicant, which
194contribution shall be deposited into the Health Care Trust Fund
195Florida Organ and Tissue Donor Education and Procurement Trust
196Fund for organ and tissue donor education and for maintaining
197the organ and tissue donor registry.
198
199A statement providing an explanation of the purpose of the trust
200funds shall also be included. For the purpose of applying the
201service charge provided in s. 215.20, contributions received
202under paragraphs (c), (d), (e), and (f) and under s.
203322.18(9)(a) are not income of a revenue nature.
204     Section 7.  Subsection (3) of section 393.0673, Florida
205Statutes, is amended to read:
206     393.0673  Denial, suspension, revocation of license;
207moratorium on admissions; administrative fines; procedures.--
208     (3)  The agency, as a part of any final order issued by it
209under this chapter, may impose such fine as it deems proper,
210except that such fine may not exceed $1,000 for each violation.
211Each day a violation of this chapter occurs constitutes a
212separate violation and is subject to a separate fine, but in no
213event may the aggregate amount of any fine exceed $10,000. Fines
214paid by any facility licensee under the provisions of this
215subsection shall be deposited in the Health Care Trust Fund
216Resident Protection Trust Fund and expended as provided in s.
217400.063.
218     Section 8.  Subsection (11) of section 393.0678, Florida
219Statutes, is amended to read:
220     393.0678  Receivership proceedings.--
221     (11)  Nothing in this section shall be deemed to relieve
222any owner, operator, or employee of a facility placed in
223receivership of any civil or criminal liability incurred, or any
224duty imposed by law, by reason of acts or omissions of the
225owner, operator, or employee before the appointment of a
226receiver; nor shall anything contained in this section be
227construed to suspend during the receivership any obligation of
228the owner, operator, or employee for payment of taxes or other
229operating and maintenance expenses of the facility or any
230obligation of the owner, operator, or employee or any other
231person for the payment of mortgages or liens. The owner shall
232retain the right to sell or mortgage any facility under
233receivership, subject to the approval of the court which ordered
234the receivership. A receivership imposed under the provisions of
235this chapter shall be subject to the Health Care Trust Fund
236Resident Protection Trust Fund pursuant to s. 400.063. The owner
237of a facility placed in receivership by the court shall be
238liable for all expenses and costs incurred by the Health Care
239Trust Fund Resident Protection Trust Fund which occur as a
240result of the receivership.
241     Section 9.  Subsection (11) of section 394.903, Florida
242Statutes, is amended to read:
243     394.903  Receivership proceedings.--
244     (11)  Nothing in this section shall be construed to relieve
245any owner, operator, or employee of a unit or facility placed in
246receivership of any civil or criminal liability incurred, or any
247duty imposed by law, by reason of acts or omissions of the
248owner, operator, or employee prior to the appointment of a
249receiver; nor shall anything contained in this section be
250construed to suspend during the receivership any obligation of
251the owner, operator, or employee for payment of taxes or other
252operating and maintenance expenses of the unit or facility or of
253the owner, operator, or employee or any other person for the
254payment of mortgages or liens. The owner shall retain the right
255to sell or mortgage any unit or facility under receivership,
256subject to approval of the court which ordered the receivership.
257Receivership imposed under the provisions of this chapter shall
258be subject to the Health Care Trust Fund pursuant to s. 408.16
259394.904. The owner of a facility placed in receivership by the
260court shall be liable for all expenses and costs incurred by the
261Health Care Trust Fund which occur as a result of the
262receivership.
263     Section 10.  Section 394.904, Florida Statutes, is
264repealed.
265     Section 11.  Subsection (3) of section 400.062, Florida
266Statutes, is amended to read:
267     400.062  License required; fee; disposition.--
268     (3)  In accordance with s. 408.805, an applicant or
269licensee shall pay a fee for each license application submitted
270under this part, part II of chapter 408, and applicable rules.
271The license fee shall be comprised of two parts. Part I of the
272license fee shall be the basic license fee. The rate per bed for
273the basic license fee shall be established biennially and shall
274be $100 per bed unless modified by rule. Part II of the license
275fee shall be the resident protection fee, which shall be at the
276rate of not less than 50 cents per bed. The rate per bed shall
277be the minimum rate per bed, and such rate shall remain in
278effect until the effective date of a rate per bed adopted by
279rule by the agency pursuant to this part. At such time as the
280amount on deposit in the Health Care Trust Fund Resident
281Protection Trust Fund for resident protection is less than $1
282million, the agency may adopt rules to establish a rate which
283may not exceed $20 per bed. The rate per bed shall revert back
284to the minimum rate per bed when the amount on deposit in the
285Health Care Trust Fund Resident Protection Trust Fund for
286resident protection reaches $1 million, except that any rate
287established by rule shall remain in effect until such time as
288the rate has been equally required for each license issued under
289this part. Any amount in the fund in excess of $2 million shall
290revert to the Health Care Trust Fund and may not be expended
291without prior approval of the Legislature. The agency may
292prorate the biennial license fee for those licenses which it
293issues under this part for less than 2 years. The resident
294protection fee collected shall be deposited in the Health Care
295Trust Fund Resident Protection Trust Fund for the sole purpose
296of paying, in accordance with the provisions of s. 400.063, for
297the appropriate alternate placement, care, and treatment of a
298resident removed from a nursing home facility on a temporary,
299emergency basis or for the maintenance and care of residents in
300a nursing home facility pending removal and alternate placement.
301     Section 12.  Subsections (1), (2), and (3) of section
302400.063, Florida Statutes, are amended to read:
303     400.063  Resident protection Trust Fund.--
304     (1)  The Health Care Trust Fund A Resident Protection Trust
305Fund shall be used established for the purpose of collecting and
306disbursing funds generated from the license fees and
307administrative fines as provided for in ss. 393.0673(3)(2),
308400.062(3), 400.121(2), and 400.23(8). Such funds shall be for
309the sole purpose of paying for the appropriate alternate
310placement, care, and treatment of residents who are removed from
311a facility licensed under this part or a facility specified in
312s. 393.0678(1) in which the agency determines that existing
313conditions or practices constitute an immediate danger to the
314health, safety, or security of the residents. If the agency
315determines that it is in the best interest of the health,
316safety, or security of the residents to provide for an orderly
317removal of the residents from the facility, the agency may
318utilize such funds to maintain and care for the residents in the
319facility pending removal and alternative placement. The
320maintenance and care of the residents shall be under the
321direction and control of a receiver appointed pursuant to s.
322393.0678(1) or s. 400.126(1). However, funds may be expended in
323an emergency upon a filing of a petition for a receiver, upon
324the declaration of a state of local emergency pursuant to s.
325252.38(3)(a)5., or upon a duly authorized local order of
326evacuation of a facility by emergency personnel to protect the
327health and safety of the residents.
328     (2)  The agency is authorized to establish for each
329facility, subject to intervention by the agency, a separate bank
330account for the deposit to the credit of the agency of any
331moneys received from the Health Care Trust Fund Resident
332Protection Trust Fund or any other moneys received for the
333maintenance and care of residents in the facility, and the
334agency is authorized to disburse moneys from such account to pay
335obligations incurred for the purposes of this section. The
336agency is authorized to requisition moneys from the Health Care
337Trust Fund Resident Protection Trust Fund in advance of an
338actual need for cash on the basis of an estimate by the agency
339of moneys to be spent under the authority of this section. Any
340bank account established under this section need not be approved
341in advance of its creation as required by s. 17.58, but shall be
342secured by depository insurance equal to or greater than the
343balance of such account or by the pledge of collateral security
344in conformance with criteria established in s. 18.11. The agency
345shall notify the Chief Financial Officer of any such account so
346established and shall make a quarterly accounting to the Chief
347Financial Officer for all moneys deposited in such account.
348     (3)  Funds authorized under this section shall be expended
349on behalf of all residents transferred to an alternate
350placement, at the usual and customary charges of the facility
351used for the alternate placement, provided no other source of
352private or public funding is available. However, such funds may
353not be expended on behalf of a resident who is eligible for
354Title XIX of the Social Security Act, if the alternate placement
355accepts Title XIX of the Social Security Act. Funds shall be
356utilized for maintenance and care of residents in a facility in
357receivership only to the extent private or public funds,
358including funds available under Title XIX of the Social Security
359Act, are not available or are not sufficient to adequately
360manage and operate the facility, as determined by the agency.
361The existence of the Health Care Trust Fund Resident Protection
362Trust Fund shall not make the agency liable for the maintenance
363of any resident in any facility. The state shall be liable for
364the cost of alternate placement of residents removed from a
365deficient facility, or for the maintenance of residents in a
366facility in receivership, only to the extent that funds are
367available in the Health Care Trust Fund Resident Protection
368Trust Fund.
369     Section 13.  Subsection (2) of section 400.121, Florida
370Statutes, is amended to read:
371     400.121  Denial, suspension, revocation of license;
372administrative fines; procedure; order to increase staffing.--
373     (2)  Except as provided in s. 400.23(8), a $500 fine shall
374be imposed for each violation. Each day a violation of this part
375or part II of chapter 408 occurs constitutes a separate
376violation and is subject to a separate fine, but in no event may
377any fine aggregate more than $5,000. A fine may be levied
378pursuant to this section in lieu of and notwithstanding the
379provisions of s. 400.23. Fines paid shall be deposited in the
380Health Care Trust Fund Resident Protection Trust Fund and
381expended as provided in s. 400.063.
382     Section 14.  Subsection (11) of section 400.126, Florida
383Statutes, is amended to read:
384     400.126  Receivership proceedings.--
385     (11)  Nothing in this section shall be deemed to relieve
386any owner, administrator, or employee of a facility placed in
387receivership of any civil or criminal liability incurred, or of
388any duty imposed by law, by reason of acts or omissions of the
389owner, administrator, or employee prior to the appointment of a
390receiver; nor shall anything contained in this section be
391construed to suspend during the receivership any obligation of
392the owner, administrator, or employee for payment of taxes or
393other operating and maintenance expenses of the facility, or of
394the owner, administrator, employee, or any other person for the
395payment of mortgages or liens. The owner shall retain the right
396to sell or mortgage any facility under receivership, subject to
397approval of the court which ordered the receivership. A licensee
398that is placed in receivership by the court is liable for all
399expenses and costs incurred by the Health Care Trust Fund
400Resident Protection Trust Fund that are related to capital
401improvement and operating costs and are no more than 10 percent
402above the facility's Medicaid rate which occur as a result of
403the receivership.
404     Section 15.  Subsection (6) of section 400.162, Florida
405Statutes, is amended to read:
406     400.162  Property and personal affairs of residents.--
407     (6)  In the event of the death of a resident, a licensee
408shall return all refunds and funds held in trust to the
409resident's personal representative, if one has been appointed at
410the time the nursing home disburses such funds, and if not, to
411the resident's spouse or adult next of kin named in a
412beneficiary designation form provided by the nursing home to the
413resident. In the event the resident has no spouse or adult next
414of kin or such person cannot be located, funds due to the
415resident shall be placed in an interest-bearing account in a
416bank, savings association, trust company, or credit union
417located in this state and, if possible, located within the same
418district in which the facility is located, which funds shall not
419be represented as part of the assets of the facility on a
420financial statement, and the licensee shall maintain such
421account until such time as the trust funds are disbursed
422pursuant to the provisions of the Florida Probate Code. All
423other property of a deceased resident being held in trust by the
424licensee shall be returned to the resident's personal
425representative, if one has been appointed at the time the
426nursing home disburses such property, and if not, to the
427resident's spouse or adult next of kin named in a beneficiary
428designation form provided by the nursing home to the resident.
429In the event the resident has no spouse or adult next of kin or
430such person cannot be located, property being held in trust
431shall be safeguarded until such time as the property is
432disbursed pursuant to the provisions of the Florida Probate
433Code. The trust funds and property of deceased residents shall
434be kept separate from the funds and the property of the licensee
435and from the funds and property of the residents of the
436facility. The nursing home needs to maintain only one account in
437which the trust funds amounting to less than $100 of deceased
438residents are placed. However, it shall be the obligation of the
439nursing home to maintain adequate records to permit compilation
440of interest due each individual resident's account. Separate
441accounts shall be maintained with respect to trust funds of
442deceased residents equal to or in excess of $100. In the event
443the trust funds of the deceased resident are not disbursed
444pursuant to the provisions of the Florida Probate Code within 2
445years of the death of the resident, the trust funds shall be
446deposited in the Health Care Trust Fund Resident Protection
447Trust Fund and expended as provided for in s. 400.063,
448notwithstanding the provisions of any other law of this state.
449Any other property of a deceased resident held in trust by a
450licensee which is not disbursed in accordance with the
451provisions of the Florida Probate Code shall escheat to the
452state as provided by law.
453     Section 16.  Subsection (14) of section 400.966, Florida
454Statutes, is amended to read:
455     400.966  Receivership proceeding.--
456     (14)  This section does not relieve any owner, operator, or
457employee of a facility placed in receivership of any civil or
458criminal liability incurred, or any duty imposed by law, by
459reason of acts or omissions of the owner, operator, or employee
460before the appointment of a receiver, and this section does not
461suspend during the receivership any obligation of the owner,
462operator, or employee for payment of taxes or other operating
463and maintenance expenses of the facility or any obligation of
464the owner, operator, or employee or any other person for the
465payment of mortgages or liens. The owner shall retain the right
466to sell or mortgage any facility under receivership, subject to
467the approval of the court that ordered the receivership. A
468receivership imposed under this section is subject to the Health
469Care Trust Fund Resident Protection Trust Fund pursuant to s.
470400.063. The owner of a facility placed in receivership by the
471court is liable for all expenses and costs incurred by the
472Health Care Trust Fund Resident Protection Trust Fund which
473occur as a result of the receivership.
474     Section 17.  Subsection (4) of section 765.515, Florida
475Statutes, is amended to read:
476     765.515  Delivery of document; organ and tissue donor
477registry.--
478     (4)  The Agency for Health Care Administration and the
479Department of Highway Safety and Motor Vehicles shall develop
480and implement an organ and tissue donor registry which shall
481record, through electronic means, organ and tissue donation
482documents submitted through the driver license identification
483program or by other sources. The registry shall be maintained in
484a manner which will allow, through electronic and telephonic
485methods, immediate access to organ and tissue donation documents
48624 hours a day, 7 days a week. Hospitals, organ and tissue
487procurement agencies, and other parties identified by the agency
488by rule shall be allowed access through coded means to the
489information stored in the registry. Costs for the organ and
490tissue donor registry shall be paid from the Health Care Trust
491Fund Florida Organ and Tissue Donor Education and Procurement
492Trust Fund created by s. 765.52155. Funds deposited into the
493Health Care Trust Fund Florida Organ and Tissue Donor Education
494and Procurement Trust Fund shall be utilized by the Agency for
495Health Care Administration for maintaining the organ and tissue
496donor registry and for organ and tissue donor education.
497     Section 18.  Section 765.52155, Florida Statutes, is
498repealed.
499     Section 19.  Subsection (3) of section 765.544, Florida
500Statutes, is amended to read:
501     765.544  Fees; Florida organ and tissue donor education and
502procurement Trust Fund.--
503     (3)(a)  Proceeds from fees, administrative penalties, and
504surcharges collected pursuant to this section must be deposited
505into the Health Care Trust Fund Florida Organ and Tissue Donor
506Education and Procurement Trust Fund created by s. 765.52155.
507     (b)  Moneys deposited in the trust fund pursuant to this
508section must be used exclusively for the implementation,
509administration, and operation of the certification program and
510the advisory board, for maintaining the organ and tissue donor
511registry, and for organ and tissue donor education.
512     Section 20.  This act shall take effect July 1, 2008.


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