Florida Senate - 2010                                    SB 2586
       
       
       
       By Senator Rich
       
       
       
       
       34-01598A-10                                          20102586__
    1                        A bill to be entitled                      
    2         An act relating to health care regulation; amending s.
    3         395.0197, F.S.; revising provisions relating to the
    4         requirement for certain medical facilities to maintain
    5         an internal risk management program and submit adverse
    6         incident reports; amending s. 395.3025, F.S.;
    7         substituting the Department of Health for the Agency
    8         for Health Care Regulation with respect to the use of
    9         patient records in disciplinary proceedings; amending
   10         s. 400.462, F.S.; revising definitions relating to
   11         home health care services; amending s. 400.476, F.S.;
   12         revising provisions relating to home health care
   13         staffing requirements; clarifying that an alternate
   14         administrator must meet the same standards as an
   15         administrator; specifying training requirements for
   16         home health aides; providing contractual requirements
   17         for home health agency personnel; requiring at least
   18         one home health agency service to be provided by
   19         agency employees; creating s. 400.4775, F.S.;
   20         specifying the duties and responsibilities for the
   21         home health agency administrator, director of nursing,
   22         nurses, therapists, home health aides, and certified
   23         nursing assistants; amending s. 400.487, F.S.;
   24         revising provisions relating to home health service
   25         agreements, plans of care, and the supervision of
   26         services; specifying requirements for the provision of
   27         drugs and treatment orders; creating s. 400.493, F.S.;
   28         providing patients’ rights for persons receiving home
   29         health services; requiring the home health agency to
   30         investigate complaints; requiring the agency to
   31         furnish the patient with written notice of such
   32         rights; amending s. 400.933, F.S.; revising provisions
   33         relating to the Agency for Health Care
   34         Administration’s acceptance of inspections conducted
   35         by accrediting organizations; amending s. 400.969,
   36         F.S.; revising the grounds for imposing penalties
   37         against intermediate care facilities for
   38         developmentally disabled persons; amending s. 408.05,
   39         F.S.; directing the Florida Center for Health
   40         Information and Policy Analysis to collect data on
   41         patient safety in health facilities; amending s.
   42         408.7056, F.S.; conforming a cross-reference; amending
   43         s. 408.805, F.S.; revising provisions relating to the
   44         calculation of license fees charged by the agency;
   45         amending s. 408.811, F.S.; clarifying that agency
   46         inspection reports are not subject to administrative
   47         challenges; amending s. 429.65, F.S.; revising
   48         definitions relating to adult family-care homes to
   49         require the provider to reside in the home; amending
   50         ss. 458.331 and 459.015, F.S.; conforming cross
   51         references; amending s. 641.55, F.S.; revising
   52         provisions relating to the requirement for managed
   53         care organizations to maintain an internal risk
   54         management program and submit adverse incident
   55         reports; requiring the State Fire Marshal to conduct a
   56         study of the adequacy of firesafety standards in
   57         assisted living facilities; requiring a report to the
   58         Governor and Legislature; providing effective dates.
   59  
   60  Be It Enacted by the Legislature of the State of Florida:
   61  
   62         Section 1. Effective January 1, 2011, section 395.0197,
   63  Florida Statutes, is amended to read:
   64         395.0197 Internal risk management program.—
   65         (1) Every licensed facility shall, As a part of its
   66  administrative functions, each licensed facility shall establish
   67  an internal risk management program that includes all of the
   68  following components:
   69         (a) The investigation and analysis of the frequency and
   70  causes of general categories and specific types of adverse
   71  incidents causing injury to patients.
   72         (b) The development of appropriate measures to minimize the
   73  risk of adverse incidents causing injury to patients, including,
   74  but not limited to:
   75         1. Risk management and risk prevention education and
   76  training of all nonphysician personnel as follows:
   77         a. Such Education and training of all nonphysician
   78  personnel as part of their initial orientation; and
   79         b. At least 1 hour of such education and training annually
   80  for all personnel of the licensed facility working in clinical
   81  areas and providing patient care, except those persons licensed
   82  as health care practitioners who are required to complete
   83  continuing education coursework pursuant to chapter 456 or their
   84  the respective practice act.
   85         2. A prohibition, Except when emergency circumstances
   86  require otherwise, a prohibition against a staff member of the
   87  licensed facility attending a patient in the recovery room,
   88  unless the staff member is authorized to attend the patient in
   89  the recovery room and is in the company of at least one other
   90  person. However, a licensed facility is exempt from the two
   91  person requirement if it has:
   92         a. Live visual observation;
   93         b. Electronic observation; or
   94         c. Any other reasonable measure taken to ensure patient
   95  protection and privacy.
   96         3. A prohibition against an unlicensed person from
   97  assisting or participating in any surgical procedure unless the
   98  facility has authorized the person to do so following a
   99  competency assessment, and such assistance or participation is
  100  done under the direct and immediate supervision of a licensed
  101  physician and is not otherwise an activity that may only be
  102  performed by a licensed health care practitioner.
  103         4. Development, implementation, and ongoing evaluation of
  104  procedures, protocols, and systems to accurately identify
  105  patients, planned procedures, and the correct site of the
  106  planned procedure so as to minimize the performance of a
  107  surgical procedure on the wrong patient, a wrong surgical
  108  procedure, a wrong-site surgical procedure, or a surgical
  109  procedure otherwise unrelated to the patient’s diagnosis or
  110  medical condition.
  111         (c) The analysis of patient grievances that relate to
  112  patient care and the quality of medical services.
  113         (d) A system for informing a patient or an individual
  114  identified pursuant to s. 765.401(1) that the patient was the
  115  subject of an adverse incident, as defined in subsection (5).
  116  Such notice shall be given by an appropriately trained person
  117  designated by the licensed facility as soon as practicable to
  118  allow the patient an opportunity to minimize damage or injury.
  119  Documentation of the notification should be maintained by the
  120  facility.
  121         (e) The development and implementation of a an incident
  122  reporting system based upon the affirmative duty of all health
  123  care providers and all agents and employees of the licensed
  124  health care facility to report adverse incidents to the risk
  125  manager, or to his or her designee, within 3 business days after
  126  their occurrence.
  127         (2) The internal risk management program is the
  128  responsibility of the governing board of the health care
  129  facility. Each licensed facility shall hire a risk manager,
  130  licensed under s. 395.10974, who is responsible for
  131  implementation and oversight of the such facility’s internal
  132  risk management program as required by this section.
  133         (a) A risk manager may must not be made responsible for
  134  more than four internal risk management programs in separate
  135  licensed facilities, unless the facilities are under one
  136  corporate ownership or the risk management programs are in rural
  137  hospitals.
  138         (3)In addition to the programs mandated by this section,
  139  other innovative approaches intended to reduce the frequency and
  140  severity of medical malpractice and patient injury claims shall
  141  be encouraged and their implementation and operation
  142  facilitated. Such additional approaches may include extending
  143  internal risk management programs to health care providers’
  144  offices and the assuming of provider liability by a licensed
  145  health care facility for acts or omissions occurring within the
  146  licensed facility. Each licensed facility shall annually report
  147  to the agency and the Department of Health the name and
  148  judgments entered against each health care practitioner for
  149  which it assumes liability. The agency and Department of Health,
  150  in their respective annual reports, shall include statistics
  151  that report the number of licensed facilities that assume such
  152  liability and the number of health care practitioners, by
  153  profession, for whom they assume liability.
  154         (4)The agency shall adopt rules governing the
  155  establishment of internal risk management programs to meet the
  156  needs of individual licensed facilities. Each internal risk
  157  management program shall include the use of incident reports to
  158  be filed with an individual of responsibility who is competent
  159  in risk management techniques in the employ of each licensed
  160  facility, such as an insurance coordinator, or who is retained
  161  by the licensed facility as a consultant.
  162         (b) The risk manager individual responsible for the risk
  163  management program shall have free access to all medical records
  164  of the licensed facility.
  165         (3)The incident Reports of adverse incidents are part of
  166  the workpapers of the attorney defending the licensed facility
  167  in litigation relating to the licensed facility and are subject
  168  to discovery, but are not admissible as evidence in court. A
  169  person filing an incident report is not subject to civil suit by
  170  virtue of such incident report. As a part of each internal risk
  171  management program, the incident reports shall be used to
  172  develop categories of incidents which identify problem areas.
  173  Once identified, procedures shall be adjusted to correct the
  174  problem areas.
  175         (4) For an incident to be an adverse incident that must be
  176  reported to the agency pursuant to this section, it must be: of
  177  concern to both the public and health care practitioners and
  178  providers; clearly identifiable and measurable and thus feasible
  179  to include in a reporting system; and of such a nature that the
  180  risk of occurrence is significantly influenced by the policies
  181  and procedures of the licensed facility. In addition, the
  182  incident must be unambiguous, usually preventable, serious, and
  183  any of the following: adverse; indicative of a problem in the
  184  facility’s safety systems; or important for public credibility
  185  or public accountability. The incident must also be on the most
  186  current list set forth by the National Quality Forum.
  187         (5) Adverse incidents shall be reported electronically by
  188  the facility through an online portal to the agency within 15
  189  calendar days after the occurrence. The agency may grant an
  190  extension to this reporting requirement upon receiving
  191  justification submitted by the facility administrator to the
  192  agency.
  193         (a) An adverse incident listing an individual licensed by
  194  the Department of Health as directly involved in the incident
  195  must be immediately forwarded to the Department of Health and is
  196  subject to s. 456.073.
  197         (b) The reports are exempt from disclosure under chapter
  198  119 or any other law providing access to public records; not
  199  discoverable or admissible in any civil or administrative
  200  action, except in disciplinary proceedings by the Department of
  201  Health or the appropriate regulatory authority; and are not
  202  available to the public as part of the record of investigation
  203  for and prosecution in disciplinary proceedings ordinarily made
  204  available to the public.
  205         (c) The facility’s chief executive officer, or designee,
  206  shall certify quarterly, through the electronic submission
  207  portal, that all adverse incidents from the previous quarter
  208  have been reported and that the reports are accurate.
  209         (6) Within 60 days after the occurrence of an adverse
  210  incident, the agency shall require the facility to
  211  electronically submit a final report. The final report should
  212  include a copy of the root-cause analysis, any risk management
  213  or patient safety lessons learned, the plan of correction, and
  214  the results obtained during the plan’s implementation in the
  215  facility. The agency may investigate adverse incidents and
  216  prescribe measures that must or may be taken in response to the
  217  incident. These reports are exempt from disclosure under chapter
  218  119 or any other law providing access to public records, and are
  219  not discoverable or admissible in any civil or administrative
  220  action.
  221         (7) The agency shall publish on the agency’s website:
  222         (a)At least quarterly, a summary and trend analysis of
  223  adverse incidents received pursuant to this section, which does
  224  not include information that identifies the patient, the
  225  reporting facility, or the health care practitioners involved.
  226         (b)An annual report that describes and summarizes adverse
  227  incidents that have been submitted, and highlights patient
  228  safety lessons learned, common root-cause analysis findings, and
  229  notable corrective action plans implemented.
  230         (5)For purposes of reporting to the agency pursuant to
  231  this section, the term “adverse incident” means an event over
  232  which health care personnel could exercise control and which is
  233  associated in whole or in part with medical intervention, rather
  234  than the condition for which such intervention occurred, and
  235  which:
  236         (a)Results in one of the following injuries:
  237         1.Death;
  238         2.Brain or spinal damage;
  239         3.Permanent disfigurement;
  240         4.Fracture or dislocation of bones or joints;
  241         5.A resulting limitation of neurological, physical, or
  242  sensory function which continues after discharge from the
  243  facility;
  244         6.Any condition that required specialized medical
  245  attention or surgical intervention resulting from nonemergency
  246  medical intervention, other than an emergency medical condition,
  247  to which the patient has not given his or her informed consent;
  248  or
  249         7.Any condition that required the transfer of the patient,
  250  within or outside the facility, to a unit providing a more acute
  251  level of care due to the adverse incident, rather than the
  252  patient’s condition prior to the adverse incident;
  253         (b)Was the performance of a surgical procedure on the
  254  wrong patient, a wrong surgical procedure, a wrong-site surgical
  255  procedure, or a surgical procedure otherwise unrelated to the
  256  patient’s diagnosis or medical condition;
  257         (c)Required the surgical repair of damage resulting to a
  258  patient from a planned surgical procedure, where the damage was
  259  not a recognized specific risk, as disclosed to the patient and
  260  documented through the informed-consent process; or
  261         (d)Was a procedure to remove unplanned foreign objects
  262  remaining from a surgical procedure.
  263         (6)(a)Each licensed facility subject to this section shall
  264  submit an annual report to the agency summarizing the incident
  265  reports that have been filed in the facility for that year. The
  266  report shall include:
  267         1.The total number of adverse incidents.
  268         2.A listing, by category, of the types of operations,
  269  diagnostic or treatment procedures, or other actions causing the
  270  injuries, and the number of incidents occurring within each
  271  category.
  272         3.A listing, by category, of the types of injuries caused
  273  and the number of incidents occurring within each category.
  274         4.A code number using the health care professional’s
  275  licensure number and a separate code number identifying all
  276  other individuals directly involved in adverse incidents to
  277  patients, the relationship of the individual to the licensed
  278  facility, and the number of incidents in which each individual
  279  has been directly involved. Each licensed facility shall
  280  maintain names of the health care professionals and individuals
  281  identified by code numbers for purposes of this section.
  282         5.A description of all malpractice claims filed against
  283  the licensed facility, including the total number of pending and
  284  closed claims and the nature of the incident which led to, the
  285  persons involved in, and the status and disposition of each
  286  claim. Each report shall update status and disposition for all
  287  prior reports.
  288         (b)The information reported to the agency pursuant to
  289  paragraph (a) which relates to persons licensed under chapter
  290  458, chapter 459, chapter 461, or chapter 466 shall be reviewed
  291  by the agency. The agency shall determine whether any of the
  292  incidents potentially involved conduct by a health care
  293  professional who is subject to disciplinary action, in which
  294  case the provisions of s. 456.073 shall apply.
  295         (c)The report submitted to the agency shall also contain
  296  the name and license number of the risk manager of the licensed
  297  facility, a copy of its policy and procedures which govern the
  298  measures taken by the facility and its risk manager to reduce
  299  the risk of injuries and adverse incidents, and the results of
  300  such measures. The annual report is confidential and is not
  301  available to the public pursuant to s. 119.07(1) or any other
  302  law providing access to public records. The annual report is not
  303  discoverable or admissible in any civil or administrative
  304  action, except in disciplinary proceedings by the agency or the
  305  appropriate regulatory board. The annual report is not available
  306  to the public as part of the record of investigation for and
  307  prosecution in disciplinary proceedings made available to the
  308  public by the agency or the appropriate regulatory board.
  309  However, the agency or the appropriate regulatory board shall
  310  make available, upon written request by a health care
  311  professional against whom probable cause has been found, any
  312  such records which form the basis of the determination of
  313  probable cause.
  314         (7)Any of the following adverse incidents, whether
  315  occurring in the licensed facility or arising from health care
  316  prior to admission in the licensed facility, shall be reported
  317  by the facility to the agency within 15 calendar days after its
  318  occurrence:
  319         (a)The death of a patient;
  320         (b)Brain or spinal damage to a patient;
  321         (c)The performance of a surgical procedure on the wrong
  322  patient;
  323         (d)The performance of a wrong-site surgical procedure;
  324         (e)The performance of a wrong surgical procedure;
  325         (f)The performance of a surgical procedure that is
  326  medically unnecessary or otherwise unrelated to the patient’s
  327  diagnosis or medical condition;
  328         (g)The surgical repair of damage resulting to a patient
  329  from a planned surgical procedure, where the damage is not a
  330  recognized specific risk, as disclosed to the patient and
  331  documented through the informed-consent process; or
  332         (h)The performance of procedures to remove unplanned
  333  foreign objects remaining from a surgical procedure.
  334  
  335  The agency may grant extensions to this reporting requirement
  336  for more than 15 days upon justification submitted in writing by
  337  the facility administrator to the agency. The agency may require
  338  an additional, final report. These reports shall not be
  339  available to the public pursuant to s. 119.07(1) or any other
  340  law providing access to public records, nor be discoverable or
  341  admissible in any civil or administrative action, except in
  342  disciplinary proceedings by the agency or the appropriate
  343  regulatory board, nor shall they be available to the public as
  344  part of the record of investigation for and prosecution in
  345  disciplinary proceedings made available to the public by the
  346  agency or the appropriate regulatory board. However, the agency
  347  or the appropriate regulatory board shall make available, upon
  348  written request by a health care professional against whom
  349  probable cause has been found, any such records which form the
  350  basis of the determination of probable cause. The agency may
  351  investigate, as it deems appropriate, any such incident and
  352  prescribe measures that must or may be taken in response to the
  353  incident. The agency shall review each incident and determine
  354  whether it potentially involved conduct by the health care
  355  professional who is subject to disciplinary action, in which
  356  case the provisions of s. 456.073 shall apply.
  357         (8)The agency shall publish on the agency’s website, no
  358  less than quarterly, a summary and trend analysis of adverse
  359  incident reports received pursuant to this section, which shall
  360  not include information that would identify the patient, the
  361  reporting facility, or the health care practitioners involved.
  362  The agency shall publish on the agency’s website an annual
  363  summary and trend analysis of all adverse incident reports and
  364  malpractice claims information provided by facilities in their
  365  annual reports, which shall not include information that would
  366  identify the patient, the reporting facility, or the
  367  practitioners involved. The purpose of the publication of the
  368  summary and trend analysis is to promote the rapid dissemination
  369  of information relating to adverse incidents and malpractice
  370  claims to assist in avoidance of similar incidents and reduce
  371  morbidity and mortality.
  372         (8)(9) The internal risk manager of each licensed facility
  373  shall:
  374         (a) Investigate every allegation of sexual misconduct which
  375  is made against a member of the facility’s personnel who has
  376  direct patient contact if, when the allegation is that the
  377  sexual misconduct occurred at the facility or on the grounds of
  378  the facility.
  379         (b) Report every allegation of sexual misconduct to the
  380  administrator of the licensed facility.
  381         (c) Notify the family or guardian of the victim, if a
  382  minor, that an allegation of sexual misconduct has been made and
  383  that an investigation is being conducted.
  384         (d) Report to the Department of Health every allegation of
  385  sexual misconduct, as defined in chapter 456 and the respective
  386  practice act, by a licensed health care practitioner which that
  387  involves a patient.
  388         (9)(10) Any witness who witnessed or who possesses actual
  389  knowledge of the act that is the basis of an allegation of
  390  sexual abuse shall:
  391         (a) Notify the local police; and
  392         (b) Notify the licensed facility’s hospital risk manager
  393  and the administrator.
  394  
  395  For purposes of this subsection, “sexual abuse” means acts of a
  396  sexual nature committed for the sexual gratification of anyone
  397  upon, or in the presence of, a vulnerable adult, without the
  398  vulnerable adult’s informed consent, or a minor. The term
  399  “Sexual abuse” includes, but is not limited to, the acts defined
  400  in s. 794.011(1)(h), fondling, exposure of a vulnerable adult’s
  401  or minor’s sexual organs, or the use of the vulnerable adult or
  402  minor to solicit for or engage in prostitution or sexual
  403  performance. The term “Sexual abuse” does not include any act
  404  intended for a valid medical purpose or any act that which may
  405  reasonably be construed to be a normal caregiving action.
  406         (10)(11) A person who, with malice or with intent to
  407  discredit or harm a licensed facility or any person, makes a
  408  false allegation of sexual misconduct against a member of a
  409  licensed facility’s personnel commits is guilty of a misdemeanor
  410  of the second degree, punishable as provided in s. 775.082 or s.
  411  775.083.
  412         (12)In addition to any penalty imposed pursuant to this
  413  section or part II of chapter 408, the agency shall require a
  414  written plan of correction from the facility. For a single
  415  incident or series of isolated incidents that are nonwillful
  416  violations of the reporting requirements of this section or part
  417  II of chapter 408, the agency shall first seek to obtain
  418  corrective action by the facility. If the correction is not
  419  demonstrated within the timeframe established by the agency or
  420  if there is a pattern of nonwillful violations of this section
  421  or part II of chapter 408, the agency may impose an
  422  administrative fine, not to exceed $5,000 for any violation of
  423  the reporting requirements of this section or part II of chapter
  424  408. The administrative fine for repeated nonwillful violations
  425  may not exceed $10,000 for any violation. The administrative
  426  fine for each intentional and willful violation may not exceed
  427  $25,000 per violation, per day. The fine for an intentional and
  428  willful violation of this section or part II of chapter 408 may
  429  not exceed $250,000. In determining the amount of fine to be
  430  levied, the agency shall be guided by s. 395.1065(2)(b).
  431         (11)(13) The agency shall have access to all licensed
  432  facility records necessary to carry out the provisions of this
  433  section. The records obtained by the agency under subsection (5)
  434  or subsection (6), subsection (7), or subsection (9) are exempt
  435  from disclosure not available to the public under s. 119.07(1),
  436  and are not nor shall they be discoverable or admissible in any
  437  civil or administrative action, except in disciplinary
  438  proceedings by the agency, the Department of Health, or the
  439  appropriate regulatory board., nor shall Records obtained
  440  pursuant to s. 456.071 may not be made available to the public
  441  as part of the record of investigation for and prosecution in
  442  disciplinary proceedings made available to the public by the
  443  agency or the appropriate regulatory board. However, the agency
  444  or the appropriate regulatory board shall make available, upon
  445  written request by a health care professional against whom
  446  probable cause has been found, any such records which form the
  447  basis of the determination of probable cause, except that, with
  448  respect to medical review committee records, s. 766.101
  449  controls.
  450         (12)(14) The meetings of the committees and governing board
  451  of a licensed facility held solely for the purpose of achieving
  452  the objectives of risk management purposes as provided by this
  453  section are shall not be open to the public pursuant to under
  454  the provisions of chapter 286. The records of such meetings are
  455  confidential and exempt from s. 119.07(1), except as provided in
  456  subsection (11) (13).
  457         (13)(15)The agency shall review, As part of its licensure
  458  inspection process, the agency shall review the internal risk
  459  management program of at each licensed facility regulated by
  460  this section to determine whether the program meets the
  461  standards established in statutes and rules, whether the program
  462  is being conducted in a manner designed to reduce adverse
  463  incidents, and whether the program is appropriately reporting
  464  such incidents under this section.
  465         (14)(16)There shall be No monetary liability on the part
  466  of, and no cause of action for damages shall arise against, any
  467  risk manager, licensed under s. 395.10974, for the
  468  implementation and oversight of the internal risk management
  469  program in a facility licensed under this chapter or chapter 390
  470  as required by this section, for any act or proceeding
  471  undertaken or performed within the scope of the functions of
  472  such internal risk management program if the risk manager acts
  473  without intentional fraud.
  474         (15)(17) A privilege against civil liability is hereby
  475  granted to any licensed risk manager or licensed facility with
  476  regard to information furnished pursuant to this chapter, unless
  477  the licensed risk manager or facility acted in bad faith or with
  478  malice in providing such information.
  479         (18)If the agency, through its receipt of any reports
  480  required under this section or through any investigation, has a
  481  reasonable belief that conduct by a staff member or employee of
  482  a licensed facility is grounds for disciplinary action by the
  483  appropriate regulatory board, the agency shall report this fact
  484  to such regulatory board.
  485         (16)(19)No It shall be unlawful for any person may to
  486  coerce, intimidate, or preclude a risk manager from lawfully
  487  executing his or her reporting obligations pursuant to this
  488  chapter. Such action is unlawful action shall be subject to
  489  civil monetary penalties not to exceed $10,000 per violation.
  490         (17) The agency may impose administrative fines on licensed
  491  facilities for violations of the reporting requirements of this
  492  section. In determining the amount of fine to be levied, the
  493  agency shall consider the factors listed in s. 395.1065(2)(b).
  494         (a) Before imposing a fine for a nonwillful violation, the
  495  agency shall first seek to obtain corrective action by the
  496  facility for a single incident or series of isolated incidents.
  497         (b) If the correction of a nonwillful violation is not
  498  accomplished within the timeframe established by the agency or
  499  if there is a pattern of nonwillful violations, the agency may
  500  impose an administrative fine of up to $5,000. However, the
  501  administrative fine for repeated nonwillful violations may not
  502  exceed $10,000.
  503         (c) The agency may impose an administrative fine of up to
  504  $25,000 per violation per day for each intentional and willful
  505  violation. However, the fine for an intentional and willful
  506  violation may not exceed $250,000.
  507         (18) The agency may adopt rules to administer this section.
  508         Section 2. Effective January 1, 2011, paragraph (e) of
  509  subsection (4) of section 395.3025, Florida Statutes, is amended
  510  to read:
  511         395.3025 Patient and personnel records; copies;
  512  examination.—
  513         (4) Patient records are confidential and must not be
  514  disclosed without the consent of the patient or his or her legal
  515  representative, but appropriate disclosure may be made without
  516  such consent to:
  517         (e) The Department of Health agency upon issuance of a
  518  subpoena issued pursuant to s. 456.071. However, but the records
  519  obtained thereby must be used solely by for the purpose of the
  520  department agency and the appropriate regulatory professional
  521  board in its investigation, prosecution, and appeal of
  522  disciplinary proceedings. If the department agency requests
  523  copies of the records, the facility may not shall charge no more
  524  than its actual copying costs, including reasonable staff time.
  525  The records must be sealed and may must not be made available to
  526  the public pursuant to s. 119.07(1) or any other statute
  527  providing access to records, and may not be made nor may they be
  528  available to the public as part of the record of investigation
  529  for and prosecution in disciplinary proceedings made available
  530  to the public by the department agency or the appropriate
  531  regulatory board. However, the department agency must make
  532  available, upon written request by a practitioner against whom
  533  probable cause has been found, any such records that form the
  534  basis of the determination of probable cause.
  535         Section 3. Subsections (2) and (14) of section 400.462,
  536  Florida Statutes, are amended, present subsections (27) through
  537  (29) of that section are renumbered as subsections (28) through
  538  (30), respectively, and new subsections (27) and (31) are added
  539  to that section, to read:
  540         400.462 Definitions.—As used in this part, the term:
  541         (2) “Admission” means a decision by the home health agency,
  542  during or after an evaluation visit with the patient to the
  543  patient’s home, that there is reasonable expectation that the
  544  patient’s medical, nursing, and social needs for skilled care
  545  can be adequately met by the agency in the patient’s place of
  546  residence. Admission includes completion of an agreement with
  547  the patient or the patient’s legal representative to provide
  548  home health services as required in s. 400.487(1).
  549         (14) “Home health services” means health and medical
  550  services and medical supplies furnished by an organization to an
  551  individual in the individual’s home or place of residence. The
  552  term includes organizations that provide one or more of the
  553  following:
  554         (a) Nursing care.
  555         (b) Physical, occupational, respiratory, or speech therapy.
  556         (c) Home health aide services.
  557         (d) Dietetics and nutrition practice and nutrition
  558  counseling.
  559         (e) Medical supplies and durable medical equipment,
  560  restricted to drugs and biologicals prescribed by a physician.
  561         (27) “Primary home health agency” means the agency
  562  responsible for the services furnished to patients and for
  563  implementation of the plan of care.
  564         (28)(27) “Remuneration” means any payment or other benefit
  565  made directly or indirectly, overtly or covertly, in cash or in
  566  kind.
  567         (29)(28) “Skilled care” means nursing services or
  568  therapeutic services required by law to be delivered by a health
  569  care professional who is licensed under part I of chapter 464;
  570  part I, part III, or part V of chapter 468; or chapter 486 and
  571  who is employed by or under contract with a licensed home health
  572  agency or is referred by a licensed nurse registry.
  573         (30)(29) “Staffing services” means services provided to a
  574  health care facility, school, or other business entity on a
  575  temporary or school-year basis pursuant to a written contract by
  576  licensed health care personnel and by certified nursing
  577  assistants and home health aides who are employed by, or work
  578  under the auspices of, a licensed home health agency or who are
  579  registered with a licensed nurse registry.
  580         (31) “Temporary” means employment provided on an interim
  581  basis, such as for employee absences, during short-term skill
  582  shortages, or due to seasonal workloads.
  583         Section 4. Section 400.476, Florida Statutes, is amended to
  584  read:
  585         400.476 Staffing requirements; notifications; limitations
  586  on staffing services.—
  587         (1) ADMINISTRATOR.—
  588         (a) An administrator may manage only one home health
  589  agency, except that an administrator may manage up to five home
  590  health agencies if all five home health agencies have identical
  591  controlling interests as defined in s. 408.803 and are located
  592  within one agency geographic service area or within an
  593  immediately contiguous county. If the home health agency is
  594  licensed under this chapter and is part of a retirement
  595  community that provides multiple levels of care, an employee of
  596  the retirement community may administer the home health agency
  597  and up to a maximum of four entities licensed under this chapter
  598  or chapter 429 which all have identical controlling interests as
  599  defined in s. 408.803. An administrator shall designate, in
  600  writing, for each licensed entity, a qualified alternate
  601  administrator to serve during the administrator’s absence. An
  602  alternate administrator must meet the same standards as an
  603  administrator as defined in s. 400.462 and is subject to the
  604  same limitations under this paragraph.
  605         (b) An administrator of a home health agency who is a
  606  licensed physician, physician assistant, or registered nurse
  607  licensed to practice in this state may also be the director of
  608  nursing for a home health agency. An administrator may serve as
  609  a director of nursing for up to the number of entities
  610  authorized in subsection (2) only if there are 10 or fewer full
  611  time equivalent employees and contracted personnel in each home
  612  health agency.
  613         (2) DIRECTOR OF NURSING.—
  614         (a) A director of nursing may be the director of nursing
  615  for:
  616         1. Up to two licensed home health agencies if the agencies
  617  have identical controlling interests as defined in s. 408.803
  618  and are located within one agency geographic service area or
  619  within an immediately contiguous county; or
  620         2. Up to five licensed home health agencies if:
  621         a. All of the home health agencies have identical
  622  controlling interests as defined in s. 408.803;
  623         b. All of the home health agencies are located within one
  624  agency geographic service area or within an immediately
  625  contiguous county; and
  626         c. Each home health agency has a registered nurse who meets
  627  the qualifications of a director of nursing and who has a
  628  written delegation from the director of nursing to serve as the
  629  director of nursing for that home health agency when the
  630  director of nursing is not present.
  631  
  632  If a home health agency licensed under this chapter is part of a
  633  retirement community that provides multiple levels of care, an
  634  employee of the retirement community may serve as the director
  635  of nursing of the home health agency and up to a maximum of four
  636  entities, other than home health agencies, licensed under this
  637  chapter or chapter 429 which all have identical controlling
  638  interests as defined in s. 408.803.
  639         (b) A home health agency that provides skilled nursing care
  640  may not operate for more than 30 calendar days without a
  641  director of nursing. The A home health agency that provides
  642  skilled nursing care and the director of nursing of a home
  643  health agency must notify the agency within 10 business days
  644  after termination of the services of the director of nursing for
  645  the home health agency. The A home health agency that provides
  646  skilled nursing care must notify the agency of the identity and
  647  qualifications of the new director of nursing within 10 days
  648  after the new director is hired.
  649         1.If A home health agency that provides skilled nursing
  650  care and that operates for more than 30 calendar days without a
  651  director of nursing, the home health agency commits a class II
  652  deficiency. In addition to the fine for a class II deficiency,
  653  the agency may issue a moratorium in accordance with s. 408.814
  654  or revoke the home health agency’s license. The agency shall
  655  fine a home health agency that fails to notify the agency as
  656  required in this paragraph $1,000 for the first violation and
  657  $2,000 for a repeat violation. The agency may not take
  658  administrative action against a home health agency if the
  659  director of nursing fails to notify the department upon
  660  termination of services as the director of nursing for the home
  661  health agency.
  662         2.(c) A home health agency that is not Medicare or Medicaid
  663  certified and does not provide skilled care or provides only
  664  physical, occupational, or speech therapy is not required to
  665  have a director of nursing and is exempt from this paragraph
  666  (b).
  667         (3) TRAINING.—A home health agency shall ensure that each
  668  certified nursing assistant employed by or under contract with
  669  the home health agency and each home health aide employed by or
  670  under contract with the home health agency is adequately trained
  671  to perform the tasks of a home health aide in the home setting.
  672         (a) Only home health aides who have successfully completed
  673  a home health aide training and competency test as provided
  674  under s. 400.497 may be used by the home health agency to
  675  provide home health aide services whether on a full-time,
  676  temporary, per diem, or other basis. A home health aide is not
  677  considered to have successfully passed a competency test if the
  678  aide does not have a passing score as specified in rule.
  679         (b) If a home health aide has been evaluated as
  680  “unsatisfactory” in conducting a particular task during a
  681  competency test, the aide may not perform that task without
  682  being directly supervised by a licensed nurse until the aide
  683  receives training in that task and is subsequently evaluated as
  684  “satisfactory.”
  685         (4) HOME HEALTH AGENCY PERSONNEL.—
  686         (a) At least one home health agency service must be
  687  provided directly by home health agency employees. However,
  688  additional services may be provided under contract with another
  689  home health agency or organization. The contract must be in
  690  writing and, at a minimum, must specify the following:
  691         1. That patients are accepted for care only by the primary
  692  home health agency.
  693         2. The home health services to be furnished by the
  694  contracted personnel.
  695         3. The necessity for the contracted personnel to conform to
  696  all applicable agency policies, including practitioner
  697  qualifications and standards of practice.
  698         4. The responsibility of the contracted personnel to
  699  participate in developing plans of care.
  700         5. The manner in which the provision of home health
  701  services will be controlled, coordinated, and evaluated by the
  702  primary home health agency.
  703         6. The procedures for contracted personnel to submit
  704  clinical and progress notes, schedules of visits, and periodic
  705  patient evaluations.
  706         7. The procedures for payment for services furnished by the
  707  contracted personnel.
  708         (b) If the home health agency contracts with home health
  709  agency personnel on an hourly or per-visit basis, the home
  710  health agency must have a written contract with such personnel
  711  which conforms to the contractual requirements specified in
  712  paragraph (a).
  713         (c) If home health aide services are provided by an
  714  individual who is not directly employed by the home health
  715  agency, the services of the aide must be provided under written
  716  contract as provided in paragraphs (a) and (b). If the home
  717  health agency contracts with another organization for the
  718  provision of home health aide services, at a minimum, the home
  719  health agency is responsible for:
  720         1. Ensuring the overall quality of the care provided by the
  721  aide;
  722         2. Overseeing the services provided by the home health aide
  723  as described in s. 400.487; and
  724         3. Ensuring that the home health aides have met the
  725  training requirements or competency test requirements of s.
  726  400.497.
  727         (5)(4) STAFFING.—Staffing services may be provided anywhere
  728  within the state.
  729         Section 5. Section 400.4775, Florida Statutes, is created
  730  to read:
  731         400.4775Personnel duties.—The home health agency and its
  732  staff must comply with all professional standards and principles
  733  that apply to health care practitioners providing services in a
  734  home health agency setting, including, but not limited to, state
  735  practice acts and the home health agency’s policies and
  736  procedures. All home health agency personnel must ensure that
  737  services furnished are effectively coordinated and support the
  738  objectives outlined in the patient’s plan of care. The clinical
  739  record or minutes of case conferences must document that
  740  effective interchange, reporting, and coordination of patient
  741  care occurs.
  742         (1) ADMINISTRATOR.—
  743         (a) The duties of an administrator include organizing and
  744  directing the agency’s ongoing functions; maintaining an ongoing
  745  liaison with the board members and the staff; employing
  746  qualified personnel and ensuring adequate staff education and
  747  evaluations; ensuring the accuracy of public information
  748  materials and activities; implementing an effective budgeting
  749  and accounting system; and ensuring that the home health agency
  750  operates in compliance with this part and chapter 408, part II
  751  of this chapter, and rules adopted pursuant to those laws.
  752         (b) Administrator duties relating to organization, services
  753  furnished, administrative control, and lines of authority for
  754  the delegation of responsibility down to the patient care level
  755  must be clearly set forth in writing and be readily
  756  identifiable. Administrative and supervisory functions may not
  757  be delegated to another agency or organization, and all services
  758  not furnished directly, including services provided through
  759  contracts, must be monitored and controlled by the primary home
  760  health agency.
  761         (2) DIRECTOR OF NURSING.—The director of nursing, or a
  762  similarly qualified alternate, must be available at all times
  763  during operating hours and participate in all activities
  764  relevant to the professional services furnished, including, but
  765  not limited to, the oversight of nursing services, home health
  766  aides, and certified nursing assistants and the assignment of
  767  personnel.
  768         (3) NURSING SERVICES.—
  769         (a) The registered nurse shall make the initial evaluation
  770  visit, regularly reevaluate the patient’s nursing needs,
  771  initiate the plan of care and necessary revisions, furnish those
  772  services requiring substantial and specialized nursing skill,
  773  initiate appropriate preventive and rehabilitative nursing
  774  procedures, prepare clinical and progress notes, coordinate
  775  services, inform the physician and other personnel of changes in
  776  the patient’s condition and needs, counsel the patient and
  777  family in meeting nursing and related needs, participate in in
  778  service programs, and supervise and teach other nursing
  779  personnel.
  780         (b) The licensed practical nurse shall furnish services in
  781  accordance with agency policies, prepare clinical and progress
  782  notes, assist the physician and registered nurse in performing
  783  specialized procedures, prepare equipment and materials for
  784  treatments observing aseptic technique as required, and assist
  785  the patient in learning appropriate self-care techniques.
  786         (4) THERAPY SERVICES.—
  787         (a) Any physical or occupational therapy services offered
  788  by the home health agency, directly or under contract, must be
  789  provided by an appropriately licensed therapist or therapy
  790  assistant and in accordance with the plan of care. The therapist
  791  and therapy assistant must meet all professional qualifications
  792  specified in their respective state practice acts and related
  793  rules.
  794         1. A physical or occupational therapist assists the
  795  physician in evaluating level of function, helps develop and
  796  revise the plan of care, prepares clinical and progress notes,
  797  advises and consults with the family and other agency personnel,
  798  and participates in in-service programs.
  799         2. A physical or occupational therapy assistant performs
  800  services that are planned, delegated, and supervised by a
  801  physical or occupational therapist; assists in preparing
  802  clinical notes and progress reports; participates in educating
  803  the patient and family; and participates in in-service programs.
  804         (b) Speech therapy services shall be furnished only by or
  805  under the supervision of a qualified speech pathologist or
  806  audiologist as required in the state practice act and related
  807  rules.
  808         (5) HOME HEALTH AIDES AND CERTIFIED NURSING ASSISTANTS.
  809  Home health aides and certified nursing assistants provide
  810  services that are ordered by the physician in the plan of care
  811  and that the home health aide is permitted to perform under
  812  state law.
  813         (a) The duties of a home health aide and certified nursing
  814  assistant include the provision of hands-on personal care,
  815  performance of simple procedures as an extension of therapy or
  816  nursing services, assistance in ambulation or exercises, and
  817  assistance in administering medications that are ordinarily
  818  self-administered and as specified in state rules. Any home
  819  health aide services offered by a home health agency must be
  820  provided by a qualified home health aide or certified nursing
  821  assistant.
  822         (b) The home health aide and certified nursing assistant
  823  shall be assigned to a specific patient by the registered nurse.
  824  Written patient care instructions for the home health aide and
  825  certified nursing assistant must be prepared by the registered
  826  nurse or other appropriate professional who is responsible for
  827  the supervision of the home health aide and certified nursing
  828  assistant.
  829         Section 6. Section 400.487, Florida Statutes, is amended to
  830  read:
  831         400.487 Home health service agreements; physician’s,
  832  physician assistant’s, and advanced registered nurse
  833  practitioner’s treatment orders; patient assessment;
  834  establishment and review of plan of care; provision of services;
  835  orders not to resuscitate.—
  836         (1) Services provided by a home health agency must be
  837  covered by an agreement between the home health agency and the
  838  patient or the patient’s legal representative specifying the
  839  home health services to be provided, the rates or charges for
  840  services paid with private funds, and the sources of payment,
  841  which may include Medicare, Medicaid, private insurance,
  842  personal funds, or a combination thereof. A copy of the
  843  agreement must be provided to the patient or the patient’s legal
  844  representative. A home health agency providing skilled care must
  845  make an assessment of the patient’s needs within 48 hours after
  846  the start of services.
  847         (2) If When required by the provisions of chapter 464; part
  848  I, part III, or part V of chapter 468; or chapter 486, the
  849  attending physician, physician assistant, or advanced registered
  850  nurse practitioner, acting within his or her respective scope of
  851  practice, shall establish treatment orders for a patient who is
  852  to receive skilled care. The treatment orders must be signed by
  853  the physician, physician assistant, or advanced registered nurse
  854  practitioner before a claim for payment for the skilled services
  855  is submitted by the home health agency. If the claim is
  856  submitted to a managed care organization, the treatment orders
  857  must be signed within the time allowed under the provider
  858  agreement. The treatment orders shall be reviewed, as frequently
  859  as the patient’s illness requires, by the physician, physician
  860  assistant, or advanced registered nurse practitioner in
  861  consultation with the home health agency.
  862         (3) Home health care and treatment must follow a written
  863  plan of care. The plan of care must be reviewed by the attending
  864  physician, physician assistant, or advanced registered nurse
  865  practitioner who provided treatment orders under subsection (2)
  866  and home health agency personnel as often as the severity of the
  867  patient’s condition requires, but at least once every 60 days or
  868  more frequently if there is a patient-elected transfer, a
  869  significant change in condition resulting in a change in the
  870  personnel assignment, or a discharge and return to the same home
  871  health agency during the 60-day time period. Home health agency
  872  professional staff must promptly alert the physician or other
  873  professional who provided treatment orders to any changes that
  874  suggest a need to alter the plan of care. A home health agency
  875  shall arrange for supervisory visits by a registered nurse to
  876  the home of a patient receiving home health aide services in
  877  accordance with the patient’s direction, approval, and agreement
  878  to pay the charge for the visits.
  879         (4) Each patient has the right to be informed of and to
  880  participate in the planning of his or her care. Each patient
  881  must be provided, upon request, a copy of the plan of care
  882  established and maintained for that patient by the primary home
  883  health agency.
  884         (5) If When nursing services are ordered, the home health
  885  agency to which a patient has been admitted for care must
  886  provide the initial admission visit, all service evaluation
  887  visits, and the discharge visit by a direct employee. Services
  888  provided by others under contractual arrangements to a home
  889  health agency must be monitored and managed by the admitting
  890  home health agency. The admitting home health agency is fully
  891  responsible for ensuring that all care provided through its
  892  employees or contract staff is delivered in accordance with this
  893  part and applicable rules.
  894         (6) The skilled care services provided by a home health
  895  agency, directly or under contract, must be supervised and
  896  coordinated in accordance with the plan of care and must be
  897  provided by or under the supervision of a registered nurse.
  898         (a) If the patient receives skilled nursing care, the
  899  registered nurse must perform the supervisory visit. The
  900  registered nurse or other professional must make an on-site
  901  visit to the patient’s home at least every 2 weeks. The visit
  902  need not occur when the home health aide is providing care.
  903         (b) If home health aide services are provided to a patient
  904  who is not receiving skilled nursing care, physical or
  905  occupational therapy, or speech-language pathology services, the
  906  registered nurse must make a supervisory visit to the patient’s
  907  home at least every 60 days. To ensure that the home health aide
  908  is properly caring for the patient, each supervisory visit must
  909  occur while the home health aide is providing patient care.
  910         (7) Drugs and treatments may be administered by agency
  911  staff only pursuant to treatment orders with the exception of
  912  influenza and pneumococcal polysaccharide vaccines, which may be
  913  administered pursuant to the home health agency’s policy
  914  developed in consultation with a physician, and after an
  915  assessment for contraindications. Verbal orders must be put in
  916  writing and signed and dated with the date of receipt by the
  917  registered nurse or therapist responsible for furnishing or
  918  supervising the ordered services. Verbal orders may be accepted
  919  only by personnel authorized to do so by applicable state
  920  practice acts and applicable rules as well as pursuant to the
  921  home health agency’s policies.
  922         (8)(7) Home health agency personnel may withhold or
  923  withdraw cardiopulmonary resuscitation if presented with an
  924  order not to resuscitate executed pursuant to s. 401.45. The
  925  agency shall adopt rules providing for the implementation of
  926  such orders. Home health personnel and agencies shall not be
  927  subject to criminal prosecution or civil liability, nor be
  928  considered to have engaged in negligent or unprofessional
  929  conduct, for withholding or withdrawing cardiopulmonary
  930  resuscitation pursuant to such an order and rules adopted by the
  931  agency.
  932         Section 7. Section 400.493, Florida Statutes, is created to
  933  read:
  934         400.493Patient rights.—
  935         (1) The home health agency must protect and promote the
  936  rights of each patient under its care, including each of the
  937  following:
  938         (a) The patient has the right to participate in the
  939  provision of his or her care. The home health agency must advise
  940  the patient in advance of the right to participate in planning
  941  his or her care or treatment and in any changes to that plan.
  942  The home health agency must advise the patient in advance of any
  943  change in the plan of care before the change is made.
  944         (b) The patient has the right to be informed about the care
  945  to be provided and any changes in the furnishing of that care.
  946  The home health agency must inform the patient in advance about
  947  the care and treatment to be furnished and any changes in the
  948  care and treatment. The home health agency must advise the
  949  patient of which practitioners will be furnishing care and the
  950  proposed frequency of their visits.
  951         (c) The patient has the right to have his or her property
  952  treated with respect.
  953         (d) The patient has the right to exercise his or her rights
  954  as a patient of the home health agency, including the right to
  955  voice grievances regarding the violations of those rights. The
  956  patient may not be subjected to discrimination or reprisal for
  957  voicing such grievances.
  958         (2) The patient and his or her immediate family or
  959  representative must be informed of the right to report
  960  complaints to the statewide toll-free telephone number as
  961  required under s. 408.810(5).
  962         (3) The home health agency must investigate complaints made
  963  by a patient, or the patient’s family or guardian on behalf of
  964  the patient, pursuant to this section, and must document both
  965  the existence of the complaint and the resolution of the
  966  complaint.
  967         (4) The home health agency must provide the patient with a
  968  written notice of the patient’s rights in advance of furnishing
  969  care to the patient or during the initial evaluation visit
  970  before the initiation of treatment. The home health agency must
  971  maintain documentation showing that it has complied with this
  972  subsection.
  973         Section 8. Subsection (2) of section 400.933, Florida
  974  Statutes, is amended to read:
  975         400.933 Licensure inspections and investigations.—
  976         (2) The agency shall accept, In lieu of its own periodic
  977  inspections for licensure, the agency shall accept submission of
  978  the following:
  979         (a) The survey or inspection of an accrediting organization
  980  if, provided the accreditation of the licensed home medical
  981  equipment provider is not conditional or provisional and
  982  provided the licensed home medical equipment provider authorizes
  983  the release of, and the agency receives the report of, the
  984  accrediting organization.; or
  985         (b) A copy of a valid medical oxygen retail establishment
  986  permit issued by the Department of Health, pursuant to chapter
  987  499.
  988         Section 9. Subsection (1) of section 400.969, Florida
  989  Statutes, is amended to read:
  990         400.969 Violation of part; penalties.—
  991         (1) In addition to the requirements of part II of chapter
  992  408, and except as provided in s. 400.967(3), a violation of any
  993  provision of federal certification required pursuant to s.
  994  400.960(8), this part, part II of chapter 408, or applicable
  995  rules is punishable by payment of an administrative or civil
  996  penalty not to exceed $5,000.
  997         Section 10. Effective January 1, 2011, subsections (1) and
  998  (2) of section 408.05, Florida Statutes, are amended to read:
  999         408.05 Florida Center for Health Information and Policy
 1000  Analysis.—
 1001         (1) ESTABLISHMENT.—The agency shall establish a Florida
 1002  Center for Health Information and Policy Analysis. The center
 1003  shall establish a comprehensive health information system to
 1004  provide for the collection, compilation, coordination, analysis,
 1005  indexing, dissemination, and use of utilization of both
 1006  purposefully collected and extant health-related data and
 1007  statistics. The center shall be staffed with public health
 1008  experts, biostatisticians, information system analysts, health
 1009  policy experts, risk management experts, economists, and other
 1010  staff necessary to carry out its functions.
 1011         (2) HEALTH-RELATED DATA.—The comprehensive health
 1012  information system operated by the Florida center must for
 1013  Health Information and Policy Analysis shall identify the best
 1014  available data sources, and coordinate the compilation of extant
 1015  health-related data and statistics, and purposefully collect
 1016  data on:
 1017         (a) The extent and nature of illness and disability of the
 1018  state population, including life expectancy, the incidence of
 1019  various acute and chronic illnesses, and infant and maternal
 1020  morbidity and mortality.
 1021         (b) The impact of illness and disability of the state
 1022  population on the state economy and on other aspects of the
 1023  well-being of the people in this state.
 1024         (c) Environmental, social, and other health hazards.
 1025         (d) Health knowledge and practices of state residents the
 1026  people in this state and determinants of health and nutritional
 1027  practices and status.
 1028         (e) Health resources, including physicians, dentists,
 1029  nurses, and other health professionals, by specialty and type of
 1030  practice and acute, long-term care and other institutional care
 1031  facility supplies and specific services provided by hospitals,
 1032  nursing homes, home health agencies, and other health care
 1033  facilities.
 1034         (f) Utilization of health care by type of provider.
 1035         (g) Health care costs and financing, including trends in
 1036  health care prices and costs, the sources of payment for health
 1037  care services, and federal, state, and local expenditures for
 1038  health care.
 1039         (h) Family formation, growth, and dissolution.
 1040         (i) The extent of public and private health insurance
 1041  coverage in this state.
 1042         (j) The quality of care provided by various health care
 1043  providers.
 1044         (k) Patient safety in health facilities. The center is
 1045  responsible for collecting and analyzing adverse incidents
 1046  submitted by licensed facilities and certified organizations
 1047  under ss. 395.0197 and 641.55. Such incidents may be reviewed
 1048  for accuracy, completeness, and compliance. The center is also
 1049  responsible for the agency’s reporting requirements under s.
 1050  395.0197.
 1051         Section 11. Paragraph (b) of subsection (14) of section
 1052  408.7056, Florida Statutes, is amended to read:
 1053         408.7056 Subscriber Assistance Program.—
 1054         (14)
 1055         (b) Meetings of the panel are shall be open to the public
 1056  unless the provider or subscriber whose grievance will be heard
 1057  requests a closed meeting or the agency or the department
 1058  determines that information that which discloses the
 1059  subscriber’s medical treatment or history or information
 1060  relating to internal risk management programs as provided in s.
 1061  641.55 defined in s. 641.55(5)(c), (6), and (8) may be revealed
 1062  at the panel meeting, in which case that portion of the meeting
 1063  during which a subscriber’s medical treatment or history or
 1064  internal risk management program information is discussed is
 1065  shall be exempt from the provisions of s. 286.011 and s. 24(b),
 1066  Art. I of the State Constitution. All closed meetings shall be
 1067  recorded by a certified court reporter.
 1068         Section 12. Section 408.805, Florida Statutes, is amended
 1069  to read:
 1070         408.805 Fees required; adjustments.—Unless otherwise
 1071  limited by authorizing statutes, License fees must be reasonably
 1072  calculated by the agency to cover its costs in carrying out its
 1073  responsibilities under this part, authorizing statutes, and
 1074  applicable rules, including the cost of licensure, inspection,
 1075  and regulation of providers.
 1076         (1) Licensure fees shall be adjusted to provide for
 1077  biennial licensure under agency rules.
 1078         (2) The agency shall annually adjust licensure fees,
 1079  including fees paid per bed, by not more than the change in the
 1080  Consumer Price Index based on the 12 months immediately
 1081  preceding the increase.
 1082         (3) An inspection fee must be paid as required in
 1083  authorizing statutes.
 1084         (4) Fees are nonrefundable.
 1085         (5) If When a change is reported which that requires
 1086  issuance of a license, a fee may be assessed. The fee must be
 1087  based on the actual cost of processing and issuing the license.
 1088         (6) A fee may be charged to a licensee requesting a
 1089  duplicate license. The fee may not exceed the actual cost of
 1090  duplication and postage.
 1091         (7) Total fees collected may not exceed the cost of
 1092  administering this part, authorizing statutes, and applicable
 1093  rules.
 1094         Section 13. Paragraph (a) of subsection (6) of section
 1095  408.811, Florida Statutes, is amended to read:
 1096         408.811 Right of inspection; copies; inspection reports;
 1097  plan for correction of deficiencies.—
 1098         (6)(a) Each licensee shall maintain as public information,
 1099  available upon request, records of all inspection reports
 1100  pertaining to that provider which that have been filed by the
 1101  agency unless those reports are exempt from or contain
 1102  information that is exempt from s. 119.07(1) and s. 24(a), Art.
 1103  I of the State Constitution or is otherwise made confidential by
 1104  law. Effective October 1, 2006, Copies of such reports shall be
 1105  retained in the records of the provider for at least 3 years
 1106  following the date the reports are filed and issued, regardless
 1107  of a change of ownership. Inspection reports are not subject to
 1108  challenge under s. 120.569 or s. 120.57.
 1109         Section 14. Subsections (2) and (11) of section 429.65,
 1110  Florida Statutes, are amended to read:
 1111         429.65 Definitions.—As used in this part, the term:
 1112         (2) “Adult family-care home” means a full-time, family-type
 1113  living arrangement, in a private home, under which one to two
 1114  individuals who reside in the home and own or rent the home
 1115  provide a person who owns or rents the home provides room,
 1116  board, and personal care, on a 24-hour basis, for no more than
 1117  five disabled adults or frail elders who are not relatives. The
 1118  following family-type living arrangements are not required to be
 1119  licensed as an adult family-care home:
 1120         (a) An arrangement whereby the person who resides in the
 1121  home and owns or rents the home provides room, board, and
 1122  personal care services for not more than two adults who do not
 1123  receive optional state supplementation under s. 409.212. The
 1124  person who provides the housing, meals, and personal care must
 1125  own or rent the home and reside therein.
 1126         (b) An arrangement whereby the person who owns or rents the
 1127  home provides room, board, and personal services only to his or
 1128  her relatives.
 1129         (c) An establishment that is licensed as an assisted living
 1130  facility under this chapter.
 1131         (11) “Provider” means the one or two individuals who are a
 1132  person who is licensed to operate an adult family-care home.
 1133         Section 15. Effective January 1, 2011, subsection (9) of
 1134  section 458.331, Florida Statutes, is amended to read:
 1135         458.331 Grounds for disciplinary action; action by the
 1136  board and department.—
 1137         (9) If When an investigation of a physician is undertaken,
 1138  the department shall promptly furnish to the physician or the
 1139  physician’s attorney a copy of the complaint or document that
 1140  which resulted in the initiation of the investigation. For
 1141  purposes of this subsection, such documents include, but are not
 1142  limited to: the pertinent portions of an annual report submitted
 1143  to the department pursuant to s. 395.0197(6); a report of an
 1144  adverse incident which is provided to the department pursuant to
 1145  s. 395.0197; a report of peer review disciplinary action
 1146  submitted to the department pursuant to s. 395.0193(4) or s.
 1147  458.337, if providing that the investigations, proceedings, and
 1148  records relating to such peer review disciplinary action shall
 1149  continue to retain their privileged status even as to the
 1150  licensee who is the subject of the investigation, as provided by
 1151  ss. 395.0193(8) and 458.337(3); a report of a closed claim
 1152  submitted pursuant to s. 627.912; a presuit notice submitted
 1153  pursuant to s. 766.106(2); and a petition brought under the
 1154  Florida Birth-Related Neurological Injury Compensation Plan,
 1155  pursuant to s. 766.305(2). The physician may submit a written
 1156  response to the information contained in the complaint or
 1157  document which resulted in the initiation of the investigation
 1158  within 45 days after service to the physician of the complaint
 1159  or document. The physician’s written response shall be
 1160  considered by the probable cause panel.
 1161         Section 16. Effective January 1, 2011, subsection (9) of
 1162  section 459.015, Florida Statutes, is amended to read:
 1163         459.015 Grounds for disciplinary action; action by the
 1164  board and department.—
 1165         (9) If When an investigation of an osteopathic physician is
 1166  undertaken, the department shall promptly furnish to the
 1167  osteopathic physician or his or her attorney a copy of the
 1168  complaint or document that which resulted in the initiation of
 1169  the investigation. For purposes of this subsection, such
 1170  documents include, but are not limited to: the pertinent
 1171  portions of an annual report submitted to the department
 1172  pursuant to s. 395.0197(6); a report of an adverse incident
 1173  which is provided to the department pursuant to s. 395.0197; a
 1174  report of peer review disciplinary action submitted to the
 1175  department pursuant to s. 395.0193(4) or s. 459.016, if provided
 1176  that the investigations, proceedings, and records relating to
 1177  such peer review disciplinary action shall continue to retain
 1178  their privileged status even as to the licensee who is the
 1179  subject of the investigation, as provided by ss. 395.0193(8) and
 1180  459.016(3); a report of a closed claim submitted pursuant to s.
 1181  627.912; a presuit notice submitted pursuant to s. 766.106(2);
 1182  and a petition brought under the Florida Birth-Related
 1183  Neurological Injury Compensation Plan, pursuant to s.
 1184  766.305(2). The osteopathic physician may submit a written
 1185  response to the information contained in the complaint or
 1186  document which resulted in the initiation of the investigation
 1187  within 45 days after service to the osteopathic physician of the
 1188  complaint or document. The osteopathic physician’s written
 1189  response shall be considered by the probable cause panel.
 1190         Section 17. Effective January 1, 2011, section 641.55,
 1191  Florida Statutes, is amended to read:
 1192         641.55 Internal risk management program.—
 1193         (1) Every organization certified under this part shall, As
 1194  a part of its administrative functions, each certified
 1195  organization shall establish an internal risk management program
 1196  that includes all of which shall include the following
 1197  components:
 1198         (a) The investigation and analysis of the frequency and
 1199  causes of general categories and specific types of adverse
 1200  incidents causing injury to patients;
 1201         (b) The development of appropriate measures to minimize the
 1202  risk of injuries and adverse incidents causing injury to
 1203  patients, including risk management and risk prevention
 1204  education and training of all nonphysician personnel as follows:
 1205         1. Such education and training of all nonphysician
 1206  personnel as part of their initial orientation; and
 1207         2. At least 1 hour of such education and training annually
 1208  for all nonphysician personnel of the organization who work in
 1209  clinical areas and provide patient care;
 1210         (c) The analysis of patient grievances which relate to
 1211  patient care and the quality of medical services; and
 1212         (d) The development and implementation of a an incident
 1213  reporting system for adverse incidents based upon the
 1214  affirmative duty of all providers and all agents and employees
 1215  of the organization to report such injuries and adverse
 1216  incidents to the risk manager.
 1217         (2) The risk management program is shall be the
 1218  responsibility of the governing authority or board of the
 1219  organization. Every organization that which has an annual
 1220  premium volume of $10 million or more and that which directly
 1221  provides health care in a building owned or leased by the
 1222  organization shall hire a risk manager, certified under ss.
 1223  395.10971-395.10975, who is shall be responsible for
 1224  implementation of the organization’s risk management program
 1225  required by this section. A part-time risk manager may shall not
 1226  be responsible for risk management programs in more than four
 1227  organizations or facilities. Every organization that which does
 1228  not directly provide health care in a building owned or leased
 1229  by the organization and every organization with an annual
 1230  premium volume of less than $10 million shall designate an
 1231  officer or employee of the organization to serve as the risk
 1232  manager.
 1233         (3)In addition to the programs mandated by this section,
 1234  other innovative approaches intended to reduce the frequency and
 1235  severity of medical malpractice and patient injury claims shall
 1236  be encouraged and their implementation and operation
 1237  facilitated. Additional approaches may include extending risk
 1238  management programs to provider offices or facilities.
 1239         (3)(4) The agency for Health Care Administration shall
 1240  adopt rules necessary to carry out the provisions of this
 1241  section, including rules governing the establishment of required
 1242  internal risk management programs to meet the needs of
 1243  individual organizations and each specific organization type
 1244  governed by this part. The office shall assist the agency in
 1245  preparing these rules. Each internal risk management program
 1246  must shall include the use of adverse incident reports to be
 1247  filed with the risk manager. The risk manager shall have free
 1248  access to all organization or provider medical records. The
 1249  incident reports are shall be considered to be a part of the
 1250  workpapers of the attorney defending the organization in
 1251  litigation relating to the organization thereto and are shall be
 1252  subject to discovery, but not be admissible as evidence in
 1253  court. A, nor shall any person filing such an incident report is
 1254  not be subject to civil suit by virtue of the incident report
 1255  and the matters it contains. As a part of each internal risk
 1256  management program, the incident reports shall be used utilized
 1257  to develop categories of adverse incidents which identify
 1258  problem areas. Once identified, procedures must be adjusted to
 1259  correct these problem areas.
 1260         (4) For an incident to be an adverse incident that must be
 1261  reported to the agency pursuant to this section, it must be: of
 1262  concern to both the public and health care practitioners and
 1263  providers; clearly identifiable and measurable and thus feasible
 1264  to include in a reporting system; and of such a nature that the
 1265  risk of occurrence is significantly influenced by the policies
 1266  and procedures of the organization. In addition, the incident
 1267  must be unambiguous, usually preventable, serious, and any of
 1268  the following: adverse; indicative of a problem in the
 1269  facility’s safety systems; or important for public credibility
 1270  or public accountability. The incident must also be on the most
 1271  current list set forth by the National Quality Forum.
 1272         (5) Adverse incident must be reported electronically by the
 1273  organization through an online portal to the agency within 15
 1274  calendar days after the occurrence. The agency may grant an
 1275  extension to this reporting requirement upon receiving
 1276  justification submitted by the organization’s administrator to
 1277  the agency.
 1278         (a) All adverse incidents listing an individual licensed by
 1279  the Department of Health as directly involved in the incident
 1280  must be immediately forwarded to the Department of Health and
 1281  are subject to s. 456.073.
 1282         (b) The reports are exempt from disclosure under chapter
 1283  119 or any other law providing access to public records; not
 1284  discoverable or admissible in any civil or administrative
 1285  action, except in disciplinary proceedings by the Department of
 1286  Health or the appropriate regulatory authority; and are not
 1287  available to the public as part of the record of investigation
 1288  for and prosecution in disciplinary proceedings ordinarily made
 1289  available to the public.
 1290         (c) The organization’s chief executive officer, or
 1291  designee, shall certify quarterly, through the electronic
 1292  submission portal, that all adverse incidents from the previous
 1293  quarter have been reported and that the reports are accurate.
 1294         (6) Within 60 days after the occurrence of an adverse
 1295  incident, the agency shall require the organization to
 1296  electronically submit a final report. The final report should
 1297  include a copy of the root-cause analysis, any risk management
 1298  or patient safety lessons learned, the plan of correction, and
 1299  the results obtained during the plan’s implementation in the
 1300  organization. The agency may investigate adverse incidents and
 1301  prescribe measures that must or may be taken in response to the
 1302  incident. These reports are exempt from disclosure under chapter
 1303  119 or any other law providing access to public records, and are
 1304  not discoverable or admissible in any civil or administrative
 1305  action.
 1306         (7) The agency shall have access to all of the
 1307  organization’s records necessary to carry out the provisions of
 1308  this section. The records obtained by the agency under
 1309  subsection (6) or subsection (7) are exempt from disclosure
 1310  under s. 119.07(1) and are not discoverable or admissible in any
 1311  civil or administrative action, except in disciplinary
 1312  proceedings by the agency, the Department of Health, or the
 1313  appropriate regulatory board. Records obtained pursuant to s.
 1314  456.071 may not be made available to the public as part of the
 1315  record of investigation for and prosecution in disciplinary
 1316  proceedings.
 1317         (5)(a)Each organization subject to this section must
 1318  submit an annual report to the agency summarizing the incident
 1319  reports that were filed in the organization during the preceding
 1320  calendar year pertaining to services rendered on the premises of
 1321  the organization. The report must be on a form prescribed by
 1322  rule of the agency and must include, with respect to medical
 1323  services rendered on the premises of the organization:
 1324         1.The total number of adverse incidents causing injury to
 1325  patients.
 1326         2.A listing, by category, of the types of operations,
 1327  diagnostic or treatment procedures, or other actions causing the
 1328  injuries and the number of incidents occurring within each
 1329  category.
 1330         3.A listing, by category, of the types of injuries caused
 1331  and the number of incidents occurring within each category.
 1332         4.The name of each provider or a code number using each
 1333  health care professional’s license number and a separate code
 1334  number identifying all other individuals directly involved in
 1335  adverse incidents causing injury to a patient, the relationship
 1336  of the individual or provider to the organization, and the
 1337  number of incidents with the organization in which each
 1338  individual or provider has been directly involved. Each
 1339  organization must maintain names of the health care
 1340  professionals and individuals identified by code numbers for
 1341  purposes of this section.
 1342         5.A description of all medical malpractice claims filed
 1343  against the organization or its providers, including the total
 1344  number of pending and closed claims and the nature of the
 1345  incident that led to, the persons involved in, and the status
 1346  and disposition of each claim. Each report must update status
 1347  and disposition for all prior reports.
 1348         6.A report of all disciplinary actions taken against any
 1349  provider or any medical staff member of the organization,
 1350  including the nature and cause of the action.
 1351         (b)The information reported to the agency under paragraph
 1352  (a) which relates to providers licensed under chapter 458,
 1353  chapter 459, chapter 461, or chapter 466 must also be reported
 1354  to the agency quarterly. The agency shall review the information
 1355  and determine whether any of the incidents potentially involved
 1356  conduct by a licensee that is subject to disciplinary action, in
 1357  which case s. 456.073 applies.
 1358         (c)Except as otherwise provided in this subsection, any
 1359  identifying information contained in the annual report and the
 1360  quarterly reports under paragraphs (a) and (b) is confidential
 1361  and exempt from s. 119.07(1). This information must not be
 1362  available to the public as part of the record of investigation
 1363  for and prosecution in disciplinary proceedings made available
 1364  to the public by the agency or the appropriate regulatory board.
 1365  However, the agency shall make available, upon written request
 1366  by a practitioner against whom probable cause has been found,
 1367  any such information contained in the records that form the
 1368  basis of the determination of probable cause under s. 456.073.
 1369         (d)The annual report shall also contain the name of the
 1370  risk manager of the organization, a copy of its policy and
 1371  procedures governing the measures taken by the organization and
 1372  its risk manager to reduce the risk of injuries and adverse or
 1373  untoward incidents, and the result of these measures.
 1374         (6)If an adverse or untoward incident, whether occurring
 1375  in the facilities of the organization or arising from health
 1376  care prior to enrollment by the organization or admission to the
 1377  facilities of the organization or in a facility of one of its
 1378  providers, results in:
 1379         (a)The death of a patient;
 1380         (b)Severe brain or spinal damage to a patient;
 1381         (c)A surgical procedure being performed on the wrong
 1382  patient; or
 1383         (d)A surgical procedure unrelated to the patient’s
 1384  diagnosis or medical needs being performed on any patient,
 1385  
 1386  the organization must report this incident to the agency within
 1387  3 working days after its occurrence. A more detailed followup
 1388  report must be submitted to the agency within 10 days after the
 1389  first report. The agency may require an additional, final
 1390  report. Reports under this subsection must be sent immediately
 1391  by the agency to the appropriate regulatory board whenever they
 1392  contain references to a provider licensed under chapter 458,
 1393  chapter 459, chapter 461, or chapter 466. These reports are
 1394  confidential and are exempt from s. 119.07(1). This information
 1395  is not available to the public as part of the record of
 1396  investigation for and prosecution in disciplinary proceedings
 1397  made available to the public by the agency or the appropriate
 1398  regulatory board. However, the agency shall make available, upon
 1399  written request by a practitioner against whom probable cause
 1400  has been found, any such information contained in the records
 1401  that form the basis of the determination of probable cause under
 1402  s. 456.073. The agency may investigate, as it deems appropriate,
 1403  any such incident and prescribe measures that must or may be
 1404  taken by the organization in response to the incident. The
 1405  agency shall review each incident and determine whether it
 1406  potentially involved conduct by the licensee which is subject to
 1407  disciplinary action, in which case s. 456.073 applies.
 1408         (8)(7) In addition to any penalty imposed under s. 641.52,
 1409  the agency may impose an administrative fine, not to exceed
 1410  $5,000, for any violation of the reporting requirements of
 1411  subsection (5) or subsection (6).
 1412         (9)(8) The Department of Health agency and, upon issuance
 1413  of a subpoena issued under s. 456.071, and the appropriate
 1414  regulatory board must be given access to all organization
 1415  records necessary to carry out the provisions of this section.
 1416  Any identifying information contained in the records obtained
 1417  under this section is confidential and exempt from s. 119.07(1).
 1418  The identifying information contained in records obtained under
 1419  s. 456.071 is exempt from s. 119.07(1) if to the extent that it
 1420  is part of the record of investigation for and prosecution in
 1421  disciplinary proceedings made available to the public by the
 1422  agency, the department, or the appropriate regulatory board.
 1423  However, the agency must make available, upon written request by
 1424  a practitioner against whom probable cause has been found, any
 1425  such information contained in the records that form the basis of
 1426  the determination of probable cause under s. 456.073, except
 1427  that, with respect to medical review committee records, s.
 1428  766.101 controls.
 1429         (10)(9)At least annually, the agency shall review, no less
 1430  frequently than annually, the risk management program of each
 1431  organization regulated by this section to determine whether the
 1432  program meets the standards established in statutes and rules,
 1433  whether the program is being conducted in a manner designed to
 1434  reduce adverse incidents, and whether the program is
 1435  appropriately reporting such incidents under subsections (5) and
 1436  (6).
 1437         (11)(10)There shall be No monetary liability on the part
 1438  of, and no cause of action for damages shall arise against, any
 1439  risk manager certified under part IX of chapter 626 for the
 1440  implementation and oversight of the risk management program in
 1441  an organization authorized under this chapter for any act or
 1442  proceeding undertaken or performed within the scope of the
 1443  function of such risk management program if the risk manager
 1444  acts without intentional fraud.
 1445         (11)If the agency, through its receipt of the annual
 1446  reports prescribed in subsection (5) or through any
 1447  investigation, has a reasonable belief that conduct by a
 1448  provider, staff member, or employee of an organization may
 1449  constitute grounds for disciplinary action by the appropriate
 1450  regulatory board, the agency shall report this fact to the
 1451  regulatory board.
 1452         (12)The agency shall send information bulletins to all
 1453  organizations as necessary to disseminate trends and preventive
 1454  data derived from its actions under this section or under s.
 1455  395.0197.
 1456         (12) The gross data compiled under this section or s.
 1457  395.0197 shall be furnished by the agency upon request to
 1458  organizations to be used utilized for risk management purposes.
 1459         (13) The agency shall adopt rules necessary to administer
 1460  carry out the provisions of this section.
 1461         Section 18. Adult living facilities have become the
 1462  preferred environment for individuals needing assistance with
 1463  personal care services as they age and strive to function while
 1464  having varying degrees of physical or mental impairments. It is
 1465  the intent of the Legislature that rules adopted and enforced in
 1466  assisted living facilities include firesafety standards that
 1467  ensure a safe and secure quality of life for residents.
 1468         (1) Under chapter 633, Florida Statutes, the State Fire
 1469  Marshal is directed to adopt the Florida Fire Prevention Code
 1470  for statewide application using the most current edition of the
 1471  Life Safety Code. Assisted living facilities are governed by
 1472  chapter 429, Florida Statutes, which permits compliance with
 1473  1988 firesafety standards and other standards governing
 1474  firesafety, including the 1994 edition of the Life Safety Code.
 1475         (2) The State Fire Marshal is directed to conduct a study
 1476  of the effectiveness of currently adopted firesafety standards
 1477  for assisted living facilities and evaluate whether the
 1478  continued use of such standards sufficiently ensures the safety
 1479  of staff and residents in the case of a fire emergency. The
 1480  study shall include input from the Department of Elderly
 1481  Affairs, the Agency for Health Care Administration, the
 1482  Department of Health, and trade organizations representing
 1483  assisted living facilities. The study shall address, but need
 1484  not be limited to, the establishment of uniform firesafety
 1485  standards for fire alarms and other fire protections based on
 1486  the size of the structure.
 1487         (3) The State Fire Marshal shall complete the study and
 1488  provide a report to the Governor, the President of the Senate,
 1489  and the Speaker of the House of Representatives by November 15,
 1490  2010. The report shall include, but need not be limited to,
 1491  recommendations for legislative changes that will enhance the
 1492  current firesafety standards of assisted living facilities
 1493  without causing significant adverse impact on the residents or
 1494  the individual caregivers.
 1495         Section 19. Except as otherwise expressly provided in this
 1496  act, this act shall take effect upon becoming a law.