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A bill to be entitled

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

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F.S.; revising definitions; amending s. 400.471, F.S.;  

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requiring an applicant for a new home health agency

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license to submit a surety bond or other security of a

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specified amount to the Agency for Health Care

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Administration; providing procedures for the agency with

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respect to making a claim against a surety bond or

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security; limiting the number of new home health agency

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licensure applications that the agency may accept each

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month; providing an exception under certain circumstances

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for a home health agency that is part of a retirement

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community; providing for the future expiration of such

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provisions; amending s. 400.474, F.S.; providing

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additional grounds for disciplinary action; creating s.

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400.476, F.S.; establishing staffing requirements for home

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health agencies; reducing the number of home health

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agencies that an administrator or director of nursing may

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serve; requiring that an alternate administrator be

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designated in writing; limiting the period that a home

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health agency may operate without a director of nursing;

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requiring notification upon the termination and

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replacement of a director of nursing; providing training

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requirements for certified nursing assistants and home

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health aides; prohibiting a home health agency from

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providing certain staffing services; amending s. 400.484,

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F.S.; increasing the administrative fines imposed for

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certain deficiencies; specifying fines for additional

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proscribed actions; authorizing the agency to revoke a

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license or issue a moratorium against a home health

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

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that a home health agency must retain records of the

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

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requiring that the agency adopt rules related to standards

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for the director of nursing of a home health agency, staff

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activity logs, and quality assurance programs; amending s.

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400.506, F.S.; providing training requirements for

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certified nursing assistants and home health aides

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referred for contract by a nurse registry; amending s.

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400.518, F.S.; providing for a fine to be imposed against

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a home health agency that provides complimentary staffing

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to an assisted care community in exchange for patient

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referrals; requiring the Agency for Health Care

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Administration to conduct an unannounced survey of each

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home health agency within a specified period after issuing

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a license; requiring the Agency for Health Care

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Administration to review the process for prior

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authorization of home health agency visits and determine

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whether modifications to the process are necessary;

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requiring the agency to report to the Legislature on the

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feasibility of accessing the Medicare system to determine

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recipient eligibility for home health services; 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.  Subsections (1), (5), (10), (14), and (25) of

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section 400.462, Florida Statutes, are amended to read:

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

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

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

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physician, physician assistant, or registered nurse licensed to

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

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supervisory or administrative experience in home health care or

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

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

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manage a maximum of five licensed home health agencies located

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within one agency service district or within an immediately

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contiguous county. If the home health agency is licensed under

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this chapter and is part of a retirement community that provides

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multiple levels of care, an employee of the retirement community

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

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entities licensed under this chapter or chapter 429 that are

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

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administrator shall designate, in writing, for each licensed

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entity, a qualified alternate administrator to serve during

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absences.

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

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

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licensed home health agency or licensed nurse registry shall

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ensure that the certified nursing assistant employed by or under

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contract with the home health agency or licensed nurse registry

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

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in the home setting.

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

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

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

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

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experience as a registered nurse; and who is responsible for

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overseeing the professional nursing and home health aid delivery

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

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director of a maximum of five licensed home health agencies

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operated by a related business entity and located within one

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agency service district or within an immediately contiguous

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

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and is part of a retirement community that provides multiple

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

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

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four entities licensed under this chapter or chapter 429 which

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

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

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

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personal care, performs simple procedures as an extension of

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therapy or nursing services, assists in ambulation or exercises,

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or assists in administering medications as permitted in rule and

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for which the person has received training established by the

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

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licensed nurse registry shall ensure that the home health aide

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employed by or under contract with the home health agency or

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licensed nurse registry is adequately trained to perform the

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tasks of a home health aide in the home setting.

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

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health care facility or school other business entity on a

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temporary basis by licensed health care personnel and by

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certified nursing assistants and home heath aides who are

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employed by, or work under the auspices of, a licensed home

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health agency or who are registered with a licensed nurse

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registry. Staffing services may be provided anywhere within the

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state.

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     Section 2.  Section 400.471, Florida Statutes, is amended to

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read:

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     400.471 Application for license; fee; bond; limitation on

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applications accepted.--

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     (1)  Each applicant for licensure must comply with all

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provisions of this part and part II of chapter 408.

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

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408, the initial applicant must file with the application

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satisfactory proof that the home health agency is in compliance

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with this part and applicable rules, including:

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

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by the applicant or through contractual arrangements with

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existing providers.

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

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employed.

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     (c)  Completion of questions concerning volume data on the

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renewal application as determined by rule.

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

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health agency must also obtain and maintain the following

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

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

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with an initial application for licensure and with each

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application for license renewal:

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

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

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

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licensure survey, submission of the survey of an accrediting

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organization that is recognized by the agency if the

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accreditation of the licensed home health agency is not

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provisional and if the licensed home health agency authorizes

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

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accrediting organization.

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

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shall pay a fee for each license application submitted under this

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

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

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

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out its responsibilities under this part, but not to exceed

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

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governments applying for licenses under this part are exempt from

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the payment of license fees.

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

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certified to a home health agency that fails to satisfy the

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requirements of a Medicare certification survey from the agency.

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

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

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security acceptable to the agency, such as an irrevocable letter

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of credit or a deposit in a trust account or financial

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institution, payable to the Agency for Health Care

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Administration. A surety bond or other equivalent means of

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security must be renewed and valid for each license renewal

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period. The purpose of this bond is to secure payment of any

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administrative penalties imposed by the agency and any fees and

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costs incurred by the agency regarding the home health agency

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license which are authorized under state law and which the

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licensee fails to pay 30 days after the fine or costs become

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final. The agency may make a claim against the surety bond or

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security until 1 year after the license ceases to be valid or

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until 60 days after any administrative or legal proceeding that

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involved the licensee is concluded, including any appeal,

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whichever occurs later.

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     (8)(a) The agency may accept each month only the following

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number of new applications for a home health agency license:

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     1. Five for each geographic service area in service areas 1

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through 9;

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     2. Four for geographic service area 10; and

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     3. Three for geographic service area 11.

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However, a new licensure application for a home health agency

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that is part of a retirement community providing multiple levels

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of care and that will provide home health services exclusively to

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residents of that facility is not subject to the monthly

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limitation and may not be counted as a new application for

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purposes of the monthly limitation. If the home health agency

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provides home health services to persons outside that facility,

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the agency shall impose a moratorium on the license in accordance

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

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home health agency may reapply for a new home health agency

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

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of new applications.

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

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shall return to the sender all applications received in excess of

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the limits in paragraph (a).

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     (c) This subsection expires July 1, 2011.

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     Section 3.  Paragraph (d) is added to subsection (2) of

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section 400.474, Florida Statutes, to read:

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     400.474  Administrative penalties.--

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

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its employee is grounds for disciplinary action by the agency:

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     (d) Preparing or maintaining fraudulent patient records,

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

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signs or symptoms that were not personally obtained or observed

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

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borrowing patients or patient records from other home health

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agencies to pass a survey or inspection, or falsifying

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signatures.

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     Section 4.  Section 400.476, Florida Statutes, is created to

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read:

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     400.476 Staffing requirements; notifications; limitations

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on staffing services.--

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     (1) ADMINISTRATOR.--

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     (a) An administrator may manage only one home health

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agency, except that an administrator may manage two home health

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agencies if the two home health agencies have identical

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controlling interests as defined in s. 408.803 and are located

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within one agency geographic service area or within an

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immediately contiguous county. If the home health agency is

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licensed under this chapter and is part of a retirement community

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that provides multiple levels of care, an employee of the

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retirement community may administer the home health agency and up

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to a maximum of four entities, other than home health agencies,

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licensed under this chapter or chapter 429 which all have

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identical controlling interests as defined in s. 408.803. An

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administrator shall designate, in writing, for each licensed

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entity, a qualified alternate administrator to serve during the

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administrator's absence.

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

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licensed physician, physician assistant, or registered nurse

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

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nursing for the home health agency.

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     (2) DIRECTOR OF NURSING.--

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

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for a maximum of two licensed home health agencies if the

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agencies have identical controlling interests as defined in s.

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408.803 and are located within one agency service district or

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within an immediately contiguous county. If the home health

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agency is licensed under this chapter and is part of a retirement

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community that provides multiple levels of care, an employee of

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the retirement community may serve as the director of nursing of

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the home health agency and up to a maximum of four entities,

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other than home health agencies, licensed under this chapter or

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chapter 429 which all have identical controlling interests as

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defined in s. 408.803.

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(b) A home health agency may not operate for more than 30

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calendar days without a director of nursing. A licensed home

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health agency and the director of nursing of a licensed home

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health agency must notify the agency within 10 business days

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after termination of the services of the director of nursing for

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the home health agency. A licensed home health agency must notify

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the agency of the identity and qualifications of the new director

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

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

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certified nursing assistant employed by or under contract with

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

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under contract with the home health agency is adequately trained

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

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

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within the state; however, a home health agency may not provide

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staffing services to other home health agencies or nurse

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registries.

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     Section 5.  Section 400.484, Florida Statutes, is amended to

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read:

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     400.484  Right of inspection; deficiencies; fines.--

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

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agency may make such inspections and investigations as are

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necessary in order to determine the state of compliance with this

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

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

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deficiencies in accordance with the following schedule:

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

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

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

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disablement, or permanent injury. Upon finding a class I

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deficiency, the agency may impose an administrative fine in the

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

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the deficiency exists.

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

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

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

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agency may impose an administrative fine in the amount of $5,000

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

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exists.

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

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

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

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or repeated class III deficiency, the agency may impose an

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

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and each day that the uncorrected or repeated deficiency exists.

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

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

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have the potential of negatively affecting patients. These

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violations are of a type that the agency determines do not

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

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finding an uncorrected or repeated class IV deficiency, the

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agency may impose an administrative fine not to exceed $500 $200

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for each occurrence and each day that the uncorrected or repeated

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deficiency exists.

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

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health agency that falsifies:

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     (a) Documents of training for home health aides or

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certified nursing assistants; or

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     (b) Health statements for staff providing direct care to

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patients.

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The fine must be imposed for each fraudulent document or, if

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multiple staff members are included on one document, for each

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fraudulent entry on the document.

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

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health agency that bills any payor for services not provided. The

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fine must be imposed for each incident that is falsely billed.

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The agency may also:

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     (a) Require payback of Medicaid funds;

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     (b) Revoke the license; or

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

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

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health agency that fails to provide a service specified in its

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written agreement with a patient or the plan of care for that

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

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The agency may also impose any additional administrative fines

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for the direct or indirect harm to patients as provided in

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subsection (2).

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

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

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an investigation that results in a successful prosecution,

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excluding costs associated with an attorney's time.

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     Section 6.  Subsection (2) of section 400.491, Florida

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Statutes, is amended to read:

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     400.491  Clinical records.--

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

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who receives nonskilled care a service provision plan. Such

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

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1 year following termination of services.

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

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section 400.497, Florida Statutes, are renumbered as subsections

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(6), (7), (8), and (9), respectively, and a new subsection (5) is

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added to that section, to read:

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     400.497  Rules establishing minimum standards.--The agency

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

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

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and 400.509, which must provide reasonable and fair minimum

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standards relating to:

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

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consultation with the Department of Health, shall develop rules

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related to standards for the director of nursing of a home health

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agency. These standards must address oversight responsibilities

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by the director of nursing of skilled nursing services and

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personal care services provided by the home health agency's

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staff, monthly certification of a daily log maintained by each

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direct employee or contracted staff member of home health

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services provided by that person on behalf of the home health

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agency, and a quality assurance program for home health services

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provided by the home health agency.

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     Section 8.  Paragraph (a) of subsection (6) of section

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400.506, Florida Statutes, is amended to read:

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     400.506  Licensure of nurse registries; requirements;

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penalties.--

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

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residences registered nurses and licensed practical nurses

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registered and licensed under part I of chapter 464, certified

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nursing assistants certified under part II of chapter 464, home

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health aides who present documented proof of successful

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

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companions or homemakers for the purposes of providing those

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

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registry shall ensure that each certified nursing assistant

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referred for contract by the nurse registry and each home health

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aide referred for contract by the nurse registry is adequately

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

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setting. Each person referred by a nurse registry must provide

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current documentation that he or she is free from communicable

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diseases.

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     Section 9.  Subsection (4) is added to section 400.518,

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Florida Statutes, to read:

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     400.518  Prohibited referrals to home health agencies.--

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     (4) The agency shall impose an administrative fine that may

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not exceed $15,000 if a home health agency provides nurses,

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certified nursing assistants, home health aides, or other staff

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without charge to a facility licensed under chapter 429 in return

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for patient referrals from the facility. The proceeds of such

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fines must be deposited into the Health Care Trust Fund.

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     Section 10. The Agency for Health Care Administration shall

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conduct an unannounced survey of each home health agency within

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15 months after issuing a new license to the home health agency.

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     Section 11. The Agency for Health Care Administration shall

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

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the prior authorization of home health agency visits that are in

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

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The agency shall determine whether modifications are necessary in

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order to reduce Medicaid fraud and abuse related to home health

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services for a Medicaid recipient which are not medically

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necessary. If modifications to the prior authorization function

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are necessary, the agency shall amend the contract to require

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contractor performance that reduces potential Medicaid fraud and

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abuse with respect to home health agency visits.

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     Section 12. The Agency for Health Care Administration shall

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

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and costs of accessing the Medicare system to disallow Medicaid

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payment for home health services that are paid for under the

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Medicare prospective payment system for recipients who are dually

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eligible for Medicaid and Medicare.

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     Section 13.  This act shall take effect July 1, 2008.