CS for CS for SB 686 First Engrossed (ntc)

2008686e1

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A bill to be entitled

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An act relating to nursing facilities; amending s.

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400.141, F.S.; authorizing certain licensed nursing

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facilities to develop a plan to provide certain training

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for nursing assistants; providing for rules relating to

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agency approval of training programs; amending s. 400.147,

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F.S.; redefining the term "adverse incident"; deleting the

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requirement that a nursing facility notify the agency of

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an adverse incident; deleting notification requirements;

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requiring that a risk manager determine if an incident was

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an adverse incident; providing that federal reporting

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requirements are not affected; amending s. 400.19, F.S.;

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providing that the most recent survey is a licensure

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survey under certain conditions for purposes of future

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survey scheduling; amending s. 400.195, F.S., relating to

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agency reporting requirements; conforming a cross-

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reference; amending s. 400.23, F.S.; deleting provisions

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requiring agency approval in order for a nursing home to

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use licensed nurses to perform certain duties; providing

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an effective date.

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

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     Section 1.  Section 400.141, Florida Statutes, is amended to

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read:

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     400.141  Administration and management of nursing home

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facilities.--Every licensed facility shall comply with all

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applicable standards and rules of the agency and shall:

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     (1)  Be under the administrative direction and charge of a

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licensed administrator.

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     (2)  Appoint a medical director licensed pursuant to chapter

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458 or chapter 459. The agency may establish by rule more

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specific criteria for the appointment of a medical director.

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     (3)  Have available the regular, consultative, and emergency

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services of physicians licensed by the state.

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     (4)  Provide for resident use of a community pharmacy as

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specified in s. 400.022(1)(q). Any other law to the contrary

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notwithstanding, a registered pharmacist licensed in Florida,

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that is under contract with a facility licensed under this

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chapter or chapter 429, shall repackage a nursing facility

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resident's bulk prescription medication which has been packaged

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by another pharmacist licensed in any state in the United States

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into a unit dose system compatible with the system used by the

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nursing facility, if the pharmacist is requested to offer such

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service. In order to be eligible for the repackaging, a resident

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or the resident's spouse must receive prescription medication

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benefits provided through a former employer as part of his or her

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retirement benefits, a qualified pension plan as specified in s.

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4972 of the Internal Revenue Code, a federal retirement program

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as specified under 5 C.F.R. s. 831, or a long-term care policy as

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defined in s. 627.9404(1). A pharmacist who correctly repackages

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and relabels the medication and the nursing facility which

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correctly administers such repackaged medication under the

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provisions of this subsection shall not be held liable in any

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civil or administrative action arising from the repackaging. In

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order to be eligible for the repackaging, a nursing facility

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resident for whom the medication is to be repackaged shall sign

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an informed consent form provided by the facility which includes

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an explanation of the repackaging process and which notifies the

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resident of the immunities from liability provided herein. A

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pharmacist who repackages and relabels prescription medications,

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as authorized under this subsection, may charge a reasonable fee

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for costs resulting from the implementation of this provision.

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     (5)  Provide for the access of the facility residents to

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dental and other health-related services, recreational services,

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rehabilitative services, and social work services appropriate to

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their needs and conditions and not directly furnished by the

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licensee.  When a geriatric outpatient nurse clinic is conducted

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in accordance with rules adopted by the agency, outpatients

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attending such clinic shall not be counted as part of the general

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resident population of the nursing home facility, nor shall the

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nursing staff of the geriatric outpatient clinic be counted as

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part of the nursing staff of the facility, until the outpatient

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clinic load exceeds 15 a day.

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     (6)  Be allowed and encouraged by the agency to provide

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other needed services under certain conditions. If the facility

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has a standard licensure status, and has had no class I or class

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II deficiencies during the past 2 years or has been awarded a

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Gold Seal under the program established in s. 400.235, it may be

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encouraged by the agency to provide services, including, but not

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limited to, respite and adult day services, which enable

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individuals to move in and out of the facility.  A facility is

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not subject to any additional licensure requirements for

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providing these services. Respite care may be offered to persons

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in need of short-term or temporary nursing home services. Respite

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care must be provided in accordance with this part and rules

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adopted by the agency. However, the agency shall, by rule, adopt

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modified requirements for resident assessment, resident care

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plans, resident contracts, physician orders, and other

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provisions, as appropriate, for short-term or temporary nursing

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home services.  The agency shall allow for shared programming and

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staff in a facility which meets minimum standards and offers

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services pursuant to this subsection, but, if the facility is

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cited for deficiencies in patient care, may require additional

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staff and programs appropriate to the needs of service

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recipients. A person who receives respite care may not be counted

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as a resident of the facility for purposes of the facility's

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licensed capacity unless that person receives 24-hour respite

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care. A person receiving either respite care for 24 hours or

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longer or adult day services must be included when calculating

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minimum staffing for the facility. Any costs and revenues

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generated by a nursing home facility from nonresidential programs

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or services shall be excluded from the calculations of Medicaid

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per diems for nursing home institutional care reimbursement.

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     (7)  If the facility has a standard license or is a Gold

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Seal facility, exceeds the minimum required hours of licensed

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nursing and certified nursing assistant direct care per resident

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per day, and is part of a continuing care facility licensed under

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chapter 651 or a retirement community that offers other services

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pursuant to part III of this chapter or part I or part III of

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chapter 429 on a single campus, be allowed to share programming

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and staff. At the time of inspection and in the semiannual report

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required pursuant to subsection (15), a continuing care facility

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or retirement community that uses this option must demonstrate

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through staffing records that minimum staffing requirements for

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the facility were met. Licensed nurses and certified nursing

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assistants who work in the nursing home facility may be used to

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provide services elsewhere on campus if the facility exceeds the

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minimum number of direct care hours required per resident per day

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and the total number of residents receiving direct care services

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from a licensed nurse or a certified nursing assistant does not

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cause the facility to violate the staffing ratios required under

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s. 400.23(3)(a). Compliance with the minimum staffing ratios

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shall be based on total number of residents receiving direct care

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services, regardless of where they reside on campus. If the

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facility receives a conditional license, it may not share staff

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until the conditional license status ends. This subsection does

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not restrict the agency's authority under federal or state law to

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require additional staff if a facility is cited for deficiencies

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in care which are caused by an insufficient number of certified

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nursing assistants or licensed nurses. The agency may adopt rules

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for the documentation necessary to determine compliance with this

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provision.

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     (8)  Maintain the facility premises and equipment and

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conduct its operations in a safe and sanitary manner.

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     (9)  If the licensee furnishes food service, provide a

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wholesome and nourishing diet sufficient to meet generally

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accepted standards of proper nutrition for its residents and

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provide such therapeutic diets as may be prescribed by attending

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physicians.  In making rules to implement this subsection, the

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agency shall be guided by standards recommended by nationally

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recognized professional groups and associations with knowledge of

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dietetics.

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     (10)  Keep full records of resident admissions and

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discharges; medical and general health status, including medical

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records, personal and social history, and identity and address of

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next of kin or other persons who may have responsibility for the

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affairs of the residents; and individual resident care plans

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including, but not limited to, prescribed services, service

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frequency and duration, and service goals.  The records shall be

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open to inspection by the agency.

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     (11)  Keep such fiscal records of its operations and

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conditions as may be necessary to provide information pursuant to

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this part.

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     (12)  Furnish copies of personnel records for employees

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affiliated with such facility, to any other facility licensed by

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this state requesting this information pursuant to this part.  

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Such information contained in the records may include, but is not

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limited to, disciplinary matters and any reason for termination.

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Any facility releasing such records pursuant to this part shall

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be considered to be acting in good faith and may not be held

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liable for information contained in such records, absent a

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showing that the facility maliciously falsified such records.

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     (13)  Publicly display a poster provided by the agency

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containing the names, addresses, and telephone numbers for the

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state's abuse hotline, the State Long-Term Care Ombudsman, the

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Agency for Health Care Administration consumer hotline, the

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Advocacy Center for Persons with Disabilities, the Florida

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Statewide Advocacy Council, and the Medicaid Fraud Control Unit,

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with a clear description of the assistance to be expected from

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each.

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     (14)  Submit to the agency the information specified in s.

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400.071(1)(b) for a management company within 30 days after the

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effective date of the management agreement.

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     (15)  Submit semiannually to the agency, or more frequently

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if requested by the agency, information regarding facility staff-

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to-resident ratios, staff turnover, and staff stability,

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including information regarding certified nursing assistants,

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licensed nurses, the director of nursing, and the facility

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administrator. For purposes of this reporting:

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     (a)  Staff-to-resident ratios must be reported in the

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categories specified in s. 400.23(3)(a) and applicable rules. The

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ratio must be reported as an average for the most recent calendar

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quarter.

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     (b)  Staff turnover must be reported for the most recent 12-

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month period ending on the last workday of the most recent

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calendar quarter prior to the date the information is submitted.

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The turnover rate must be computed quarterly, with the annual

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rate being the cumulative sum of the quarterly rates. The

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turnover rate is the total number of terminations or separations

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experienced during the quarter, excluding any employee terminated

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during a probationary period of 3 months or less, divided by the

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total number of staff employed at the end of the period for which

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the rate is computed, and expressed as a percentage.

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     (c)  The formula for determining staff stability is the

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total number of employees that have been employed for more than

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12 months, divided by the total number of employees employed at

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the end of the most recent calendar quarter, and expressed as a

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percentage.

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     (d)  A nursing facility that has failed to comply with state

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minimum-staffing requirements for 2 consecutive days is

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prohibited from accepting new admissions until the facility has

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achieved the minimum-staffing requirements for a period of 6

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consecutive days. For the purposes of this paragraph, any person

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who was a resident of the facility and was absent from the

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facility for the purpose of receiving medical care at a separate

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location or was on a leave of absence is not considered a new

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admission. Failure to impose such an admissions moratorium

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constitutes a class II deficiency.

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     (e)  A nursing facility which does not have a conditional

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license may be cited for failure to comply with the standards in

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s. 400.23(3)(a)1.a. only if it has failed to meet those standards

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on 2 consecutive days or if it has failed to meet at least 97

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percent of those standards on any one day.

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     (f)  A facility which has a conditional license must be in

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compliance with the standards in s. 400.23(3)(a) at all times.

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Nothing in this section shall limit the agency's ability to

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impose a deficiency or take other actions if a facility does not

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have enough staff to meet the residents' needs.

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     (16)  Report monthly the number of vacant beds in the

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facility which are available for resident occupancy on the day

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the information is reported.

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     (17)  Notify a licensed physician when a resident exhibits

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signs of dementia or cognitive impairment or has a change of

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condition in order to rule out the presence of an underlying

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physiological condition that may be contributing to such dementia

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or impairment. The notification must occur within 30 days after

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the acknowledgment of such signs by facility staff. If an

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underlying condition is determined to exist, the facility shall

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arrange, with the appropriate health care provider, the necessary

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care and services to treat the condition.

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     (18)  If the facility implements a dining and hospitality

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attendant program, ensure that the program is developed and

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implemented under the supervision of the facility director of

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nursing. A licensed nurse, licensed speech or occupational

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therapist, or a registered dietitian must conduct training of

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dining and hospitality attendants. A person employed by a

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facility as a dining and hospitality attendant must perform tasks

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under the direct supervision of a licensed nurse.

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     (19)  Report to the agency any filing for bankruptcy

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protection by the facility or its parent corporation, divestiture

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or spin-off of its assets, or corporate reorganization within 30

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days after the completion of such activity.

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     (20)  Maintain general and professional liability insurance

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coverage that is in force at all times. In lieu of general and

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professional liability insurance coverage, a state-designated

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teaching nursing home and its affiliated assisted living

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facilities created under s. 430.80 may demonstrate proof of

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financial responsibility as provided in s. 430.80(3)(h).

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     (21)  Maintain in the medical record for each resident a

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daily chart of certified nursing assistant services provided to

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the resident. The certified nursing assistant who is caring for

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the resident must complete this record by the end of his or her

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shift. This record must indicate assistance with activities of

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daily living, assistance with eating, and assistance with

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drinking, and must record each offering of nutrition and

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hydration for those residents whose plan of care or assessment

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indicates a risk for malnutrition or dehydration.

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     (22)  Before November 30 of each year, subject to the

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availability of an adequate supply of the necessary vaccine,

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provide for immunizations against influenza viruses to all its

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consenting residents in accordance with the recommendations of

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the United States Centers for Disease Control and Prevention,

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subject to exemptions for medical contraindications and religious

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or personal beliefs. Subject to these exemptions, any consenting

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person who becomes a resident of the facility after November 30

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but before March 31 of the following year must be immunized

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within 5 working days after becoming a resident. Immunization

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shall not be provided to any resident who provides documentation

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that he or she has been immunized as required by this subsection.

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This subsection does not prohibit a resident from receiving the

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immunization from his or her personal physician if he or she so

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chooses. A resident who chooses to receive the immunization from

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his or her personal physician shall provide proof of immunization

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to the facility. The agency may adopt and enforce any rules

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necessary to comply with or implement this subsection.

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     (23)  Assess all residents for eligibility for pneumococcal

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polysaccharide vaccination (PPV) and vaccinate residents when

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indicated within 60 days after the effective date of this act in

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accordance with the recommendations of the United States Centers

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for Disease Control and Prevention, subject to exemptions for

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medical contraindications and religious or personal beliefs.

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Residents admitted after the effective date of this act shall be

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assessed within 5 working days of admission and, when indicated,

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vaccinated within 60 days in accordance with the recommendations

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of the United States Centers for Disease Control and Prevention,

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subject to exemptions for medical contraindications and religious

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or personal beliefs. Immunization shall not be provided to any

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resident who provides documentation that he or she has been

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immunized as required by this subsection. This subsection does

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not prohibit a resident from receiving the immunization from his

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or her personal physician if he or she so chooses. A resident who

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chooses to receive the immunization from his or her personal

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physician shall provide proof of immunization to the facility.

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The agency may adopt and enforce any rules necessary to comply

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with or implement this subsection.

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     (24)  Annually encourage and promote to its employees the

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benefits associated with immunizations against influenza viruses

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in accordance with the recommendations of the United States

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Centers for Disease Control and Prevention. The agency may adopt

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and enforce any rules necessary to comply with or implement this

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subsection.

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Facilities having a standard license that have been awarded a

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Gold Seal under the program established in s. 400.235 may develop

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a plan to provide certified nursing assistant training as

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prescribed by federal regulations and state rules and may apply

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to the agency for approval of their program. The agency may adopt

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rules relating to the approval, suspension, or termination of a

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certified nursing assistant training program.

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     Section 2.  Subsections (5) through (15) of section 400.147,

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Florida Statutes, are amended to read:

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     400.147  Internal risk management and quality assurance

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program.--

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     (5)  For purposes of reporting to the agency under this

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section, the term "adverse incident" means:

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     (a)  An event over which facility personnel could exercise

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control and which is associated in whole or in part with the

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facility's intervention, rather than the condition for which such

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intervention occurred, and which results in one of the following:

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     1.  Death;

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     2.  Brain or spinal damage;

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     3.  Permanent disfigurement;

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     4.  Fracture or dislocation of bones or joints;

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     5.  A limitation of neurological, physical, or sensory

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function;

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     6.  Any condition that required medical attention to which

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the resident has not given his or her informed consent, including

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failure to honor advanced directives; or

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     7.  Any condition that required the transfer of the

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resident, within or outside the facility, to a unit providing a

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more acute level of care due to the adverse incident, rather than

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the resident's condition prior to the adverse incident;

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     (b)  Abuse, neglect, or exploitation as defined in s.

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415.102;

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     (c)  Abuse, neglect and harm as defined in s. 39.01;

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     (d)  Resident elopement; or

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     (e) An event that is reported to a law enforcement agency

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regarding a resident, other than a request for transportation.

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     (6)  The internal risk manager of each licensed facility

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shall:

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     (a)  Investigate every allegation of sexual misconduct which

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is made against a member of the facility's personnel who has

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direct patient contact when the allegation is that the sexual

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misconduct occurred at the facility or at the grounds of the

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facility;

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     (b)  Report every allegation of sexual misconduct to the

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administrator of the licensed facility; and

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     (c)  Notify the resident representative or guardian of the

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victim that an allegation of sexual misconduct has been made and

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that an investigation is being conducted.

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     (7)(a) The facility shall initiate an investigation and

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shall notify the agency within 1 business day after the risk

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manager or his or her designee has received a report pursuant to

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paragraph (1)(d). The notification must be made in writing and be

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provided electronically, by facsimile device or overnight mail

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delivery. The notification must include information regarding the

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identity of the affected resident, the type of adverse incident,

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the initiation of an investigation by the facility, and whether

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the events causing or resulting in the adverse incident represent

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a potential risk to any other resident. The notification is

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confidential as provided by law and is not discoverable or

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admissible in any civil or administrative action, except in

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disciplinary proceedings by the agency or the appropriate

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regulatory board. The agency may investigate, as it deems

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appropriate, any such incident and prescribe measures that must

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or may be taken in response to the incident. The agency shall

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review each incident and determine whether it potentially

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involved conduct by the health care professional who is subject

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to disciplinary action, in which case the provisions of s.

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456.073 shall apply.

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     (b)(8)(a) Each facility shall complete the investigation

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and submit an adverse incident report to the agency for each

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adverse incident within 15 calendar days after its occurrence.

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If, after a complete investigation, the risk manager determines

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that the incident was not an adverse incident as defined in

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subsection (5), the facility shall include this information in

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the report. The agency shall develop a form for reporting this

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information.

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     (c)(b) The information reported to the agency pursuant to

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paragraph (b) (a) which relates to persons licensed under chapter

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458, chapter 459, chapter 461, or chapter 466 shall be reviewed

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by the agency. The agency shall determine whether any of the

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incidents potentially involved conduct by a health care

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professional who is subject to disciplinary action, in which case

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the provisions of s. 456.073 shall apply.

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     (d)(c) The report submitted to the agency must also contain

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the name of the risk manager of the facility.

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     (e)(d) The adverse incident report is confidential as

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provided by law and is not discoverable or admissible in any

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civil or administrative action, except in disciplinary

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proceedings by the agency or the appropriate regulatory board.

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     (f) Federal reporting requirements are not affected by

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provisions in this subsection.

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     (8)(9) By the 10th of each month, each facility subject to

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this section shall report any notice received pursuant to s.

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400.0233(2) and each initial complaint that was filed with the

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clerk of the court and served on the facility during the previous

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month by a resident or a resident's family member, guardian,

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conservator, or personal legal representative. The report must

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include the name of the resident, the resident's date of birth

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and social security number, the Medicaid identification number

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for Medicaid-eligible persons, the date or dates of the incident

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leading to the claim or dates of residency, if applicable, and

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the type of injury or violation of rights alleged to have

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occurred.  Each facility shall also submit a copy of the notices

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received pursuant to s. 400.0233(2) and complaints filed with the

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clerk of the court. This report is confidential as provided by

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law and is not discoverable or admissible in any civil or

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administrative action, except in such actions brought by the

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agency to enforce the provisions of this part.

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     (9)(10) The agency shall review, as part of its licensure

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inspection process, the internal risk management and quality

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assurance program at each facility regulated by this section to

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determine whether the program meets standards established in

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statutory laws and rules, is being conducted in a manner designed

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to reduce adverse incidents, and is appropriately reporting

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incidents as required by this section.

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     (10)(11) There is no monetary liability on the part of, and

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a cause of action for damages may not arise against, any risk

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manager for the implementation and oversight of the internal risk

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management and quality assurance program in a facility licensed

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under this part as required by this section, or for any act or

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proceeding undertaken or performed within the scope of the

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functions of such internal risk management and quality assurance

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program if the risk manager acts without intentional fraud.

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     (11)(12) If the agency, through its receipt of the adverse

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incident reports prescribed in subsection (7), or through any

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investigation, has a reasonable belief that conduct by a staff

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member or employee of a facility is grounds for disciplinary

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action by the appropriate regulatory board, the agency shall

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report this fact to the regulatory board.

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     (12)(13) The agency may adopt rules to administer this

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section.

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     (13)(14) The agency shall annually submit to the

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Legislature a report on nursing home adverse incidents. The

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report must include the following information arranged by county:

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     (a)  The total number of adverse incidents.

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     (b)  A listing, by category, of the types of adverse

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incidents, the number of incidents occurring within each

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category, and the type of staff involved.

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     (c)  A listing, by category, of the types of injury caused

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and the number of injuries occurring within each category.

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     (d)  Types of liability claims filed based on an adverse

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incident or reportable injury.

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     (e)  Disciplinary action taken against staff, categorized by

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type of staff involved.

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     (14)(15) Information gathered by a credentialing

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organization under a quality assurance program is not

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discoverable from the credentialing organization. This subsection

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does not limit discovery of, access to, or use of facility

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records, including those records from which the credentialing

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organization gathered its information.

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     Section 3.  Subsection (3) of section 400.19, Florida

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Statutes, is amended to read:

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     400.19  Right of entry and inspection.--

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     (3)  The agency shall every 15 months conduct at least one

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unannounced inspection to determine compliance by the licensee

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with statutes, and with rules adopted promulgated under the

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provisions of those statutes, governing minimum standards of

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construction, quality and adequacy of care, and rights of

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residents. The survey shall be conducted every 6 months for the

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next 2-year period if the facility has been cited for a class I

465

deficiency, has been cited for two or more class II deficiencies

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arising from separate surveys or investigations within a 60-day

467

period, or has had three or more substantiated complaints within

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a 6-month period, each resulting in at least one class I or class

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II deficiency. In addition to any other fees or fines in this

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part, the agency shall assess a fine for each facility that is

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subject to the 6-month survey cycle. The fine for the 2-year

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period shall be $6,000, one-half to be paid at the completion of

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each survey. The agency may adjust this fine by the change in the

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Consumer Price Index, based on the 12 months immediately

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preceding the increase, to cover the cost of the additional

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surveys. If such deficiencies are overturned as the result of

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administrative action but additional surveys have already been

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conducted pursuant to this section, the most recent survey shall

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be considered a licensure survey for purposes of scheduling

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future surveys. The agency shall verify through subsequent

481

inspection that any deficiency identified during inspection is

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corrected. However, the agency may verify the correction of a

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class III or class IV deficiency unrelated to resident rights or

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resident care without reinspecting the facility if adequate

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written documentation has been received from the facility, which

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provides assurance that the deficiency has been corrected. The

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giving or causing to be given of advance notice of such

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unannounced inspections by an employee of the agency to any

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unauthorized person shall constitute cause for suspension of not

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fewer than 5 working days according to the provisions of chapter

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110.

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     Section 4.  Paragraph (d) of subsection (1) of section

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400.195, Florida Statutes, is amended to read:

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     400.195  Agency reporting requirements.--

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     (1)  For the period beginning June 30, 2001, and ending June

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30, 2005, the Agency for Health Care Administration shall provide

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a report to the Governor, the President of the Senate, and the

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Speaker of the House of Representatives with respect to nursing

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homes.  The first report shall be submitted no later than

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December 30, 2002, and subsequent reports shall be submitted

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every 6 months thereafter.  The report shall identify facilities

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based on their ownership characteristics, size, business

503

structure, for-profit or not-for-profit status, and any other

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characteristics the agency determines useful in analyzing the

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varied segments of the nursing home industry and shall report:

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     (d)  Information regarding deficiencies cited, including

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information used to develop the Nursing Home Guide WATCH LIST

508

pursuant to s. 400.191, and applicable rules, a summary of data

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generated on nursing homes by Centers for Medicare and Medicaid

510

Services Nursing Home Quality Information Project, and

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information collected pursuant to s. 400.147(8) s. 400.147(9),

512

relating to litigation.

513

     Section 5.  Paragraph (a) of subsection (3) of section

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400.23, Florida Statutes, is amended to read:

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     400.23  Rules; evaluation and deficiencies; licensure

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status.--

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     (3)(a)1.  The agency shall adopt rules providing minimum

518

staffing requirements for nursing homes. These requirements shall

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include, for each nursing home facility:

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     a.  A minimum certified nursing assistant staffing of 2.6

521

hours of direct care per resident per day beginning January 1,

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2003, and increasing to 2.7 hours of direct care per resident per

523

day beginning January 1, 2007. Beginning January 1, 2002, a no

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facility may not shall staff below one certified nursing

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assistant per 20 residents, and must provide a minimum licensed

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nursing staffing of 1.0 hour of direct care per resident per day

527

but never below one licensed nurse per 40 residents.

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     b.  Beginning January 1, 2007, a minimum weekly average

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certified nursing assistant staffing of 2.9 hours of direct care

530

per resident per day. For the purpose of this sub-subparagraph, a

531

week is defined as Sunday through Saturday.

532

     2.  Nursing assistants employed under s. 400.211(2) may be

533

included in computing the staffing ratio for certified nursing

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assistants only if their job responsibilities include only

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nursing-assistant-related duties.

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     3.  Each nursing home must document compliance with staffing

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standards as required under this paragraph and post daily the

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names of staff on duty for the benefit of facility residents and

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the public.

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     4.  The agency shall recognize the use of licensed nurses

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for compliance with minimum staffing requirements for certified

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nursing assistants, provided that the facility otherwise meets

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the minimum staffing requirements for licensed nurses and that

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the licensed nurses are performing the duties of a certified

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nursing assistant. Unless otherwise approved by the agency,

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Licensed nurses counted toward the minimum staffing requirements

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for certified nursing assistants must exclusively perform the

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duties of a certified nursing assistant for the entire shift and

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not also be counted toward the minimum staffing requirements for

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licensed nurses. If the agency approved a facility's request to

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use a licensed nurse to perform both licensed nursing and

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certified nursing assistant duties, The facility must allocate

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the amount of staff time specifically spent on certified nursing

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assistant duties for the purpose of documenting compliance with

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minimum staffing requirements for certified and licensed nursing

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staff. In no event may the hours of a licensed nurse with dual

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job responsibilities be counted twice.

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     Section 6.  This act shall take effect July 1, 2008.

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