Florida Senate - 2011 PROPOSED COMMITTEE SUBSTITUTE
Bill No. SB 1458
Barcode 434272
HR.HR.03628
Proposed Committee Substitute by the Committee on Health
Regulation
1 A bill to be entitled
2 An act relating to assisted care communities; amending s.
3 400.141, F.S.; deleting adult care communities from the
4 standards and rules of the Agency for Health Care Administration
5 which apply to registered pharmacists under contract with a
6 nursing home and related health care facilities; amending s.
7 408.820, F.S.; providing that assisted living facilities are
8 exempt from certain provisions authorizing the agency to impose
9 administrative fines for violations of laws and applicable
10 rules; amending s. 409.912, F.S.; requiring the agency to
11 provide for the establishment of a demonstration project for a
12 psychiatric facility in Miami-Dade County; amending s. 429.01,
13 F.S.; revising legislative intent and the purposes of the
14 Assisted Living Facilities Act; amending s. 429.02, F.S.;
15 providing, revising, and deleting definitions; amending s.
16 429.04, F.S.; deleting provisions exempting a home health agency
17 from licensure as an assisted living facility under certain
18 circumstances; amending s. 429.07, F.S.; deleting limited
19 nursing services as a category of care in which the agency may
20 issue a license; revising the criteria and requirements for
21 categories of care in which the agency may issue a license;
22 revising the licensing fees; requiring the agency to conduct a
23 survey to determine whether a facility must be monitored;
24 providing that certain cited assisted living facilities are
25 subject to unannounced monitoring activities; providing for a
26 registered nurse to participate in monitoring visits within a
27 certain time following a class I or class II violation involving
28 nursing care; amending s. 429.08, F.S.; requiring emergency
29 medical technicians or paramedics to report the operations of an
30 unlicensed assisted living facility; amending s. 429.11, F.S.;
31 requiring the Agency for Health Care Administration to develop
32 an abbreviated form for submission of proof of financial ability
33 to operate an assisted living facility; amending s. 429.12,
34 F.S.; deleting the provision that requires a transferor of an
35 assisted living facility to advise the transferee that a plan of
36 correction must be submitted by the transferee and approved by
37 the agency within a specified period; amending s. 429.14, F.S.;
38 deleting a provision that authorizes the agency to impose an
39 administrative penalty due to the actions of a facility’s
40 employee; revising the actions for which the agency may impose
41 an administrative penalty; conforming a provision to changes
42 made by the act; deleting the provision that authorizes the
43 agency to revoke or deny the license of an assisted living
44 facility that has certain class I violations; deleting a
45 provisions that requires the agency to provide to the Division
46 of Hotels and Restaurants of the Department of Business and
47 Professional Regulation a monthly list of assisted living
48 facilities that have had their licenses denied, suspended, or
49 revoked; amending s. 429.17, F.S.; conforming provisions to
50 changes made by the act; revising requirements for a conditional
51 license; amending s. 429.178, F.S.; providing safety
52 requirements for facilities serving persons with Alzheimer’s
53 disease or other related disorders; deleting a provision
54 relating to a facility’s responsibility for the payment of
55 certain training and education programs; amending s. 429.19,
56 F.S.; revising procedures for the Agency for Health Care
57 Administration regarding the imposition of fines for violations
58 of ch. 429, F.S., related to adult care communities; specifying
59 the conditions or occurrences that constitute a class I, class
60 II, class III, or class IV violation; amending s. 429.195, F.S.;
61 prohibiting the licensee of an assisted living facility from
62 contracting or promising to pay or receive any commission,
63 bonus, kickback, or rebate or from engaging in any split-fee
64 arrangement with any health care provider or health care
65 facility; providing certain exceptions; amending s. 429.20,
66 F.S.; prohibiting the solicitation of contributions of any kind
67 in a threatening, coercive, or unduly forceful manner by or on
68 behalf of an assisted living facility; deleting provisions
69 specifying that the solicitation or receipt of contributions is
70 grounds for denial, suspension, or revocation of a license for
71 an assisted living facility; amending s. 429.23, F.S.; revising
72 reporting requirements with respect to adverse incidents;
73 amending s. 429.255, F.S.; permitting certain licensed persons
74 to provide limited nursing services; deleting the provision that
75 allows volunteers to perform duties within the scope of their
76 license or certification in facilities that are licensed to
77 provide extended congregate care; amending s. 429.256, F.S.;
78 authorizing a facility to require certain dispensing systems for
79 residents’ prescriptions; revising criteria for assistance with
80 self-administration of medication; amending s. 429.26, F.S.;
81 removing a requirement that a facility notify a licensed
82 physician when a resident exhibits certain signs of dementia,
83 cognitive impairment, or change of condition; amending s.
84 429.27, F.S.; revising provisions relating to the property and
85 personal effects of residents of a facility; requiring a
86 facility’s licensee, owner, administrator, staff, or
87 representative to execute a surety bond for each resident for
88 whom power of attorney has been granted to the licensee, owner,
89 administrator, or staff; deleting the provision that requires a
90 governmental agency or private charitable agency to receive a
91 statement of all funds and other property of a resident;
92 deleting a provision that prohibits an administrator of a
93 facility from levying an additional charge to the individual or
94 the account for any supplies or services that the facility has
95 agreed by contract to provide; repealing s. 429.275(4), F.S.,
96 relating to rulemaking authority of the Department of Elderly
97 Affairs over financial records, personnel procedures, accounting
98 procedures, reporting procedures, and insurance coverage for
99 residents of assisted living facilities; amending s. 429.28,
100 F.S., relating to the resident bill of rights; revising the
101 number of days’ notice for relocation or termination of
102 residency at a facility; removing responsibilities of the agency
103 for conducting compliance surveys and complaint investigations;
104 revising the actions of a person for which a staff member or
105 employee of a facility is prohibited from taking retaliatory
106 action upon; prohibiting the administrator of a facility from
107 terminating the residency of an individual under certain
108 circumstances; amending s. 429.29, F.S.; providing that a
109 resident who alleges negligence or a violation of rights has a
110 cause of action against the licensee of an assisted living
111 facility or its management company under certain circumstances;
112 providing a limitation on noneconomic damages if the claimant
113 elects to pursue damages for wrongful death; amending s.
114 429.293, F.S.; permitting the use of an arbitration process to
115 resolve a resident’s claim of a rights violation or negligence;
116 revising notification requirements; amending s. 429.294, F.S.;
117 authorizing the release of copies of a resident’s records to
118 specified persons under certain circumstances; authorizing the
119 facility to charge a fee to copy the records; providing limits
120 on the frequency of the release of such records; amending s.
121 429.297, F.S.; revising procedures for bringing a claim for
122 punitive damages against an assisted living facility; redefining
123 the term “intentional misconduct”; amending s. 429.298, F.S.;
124 revising the limits on the award for punitive damages; removing
125 a provision that provides for a criminal investigation with a
126 finding of liability for punitive damages; removing a provision
127 that provides for admissibility of findings in subsequent civil
128 and criminal actions; providing that the punitive damages
129 awarded are not required to be divided equally between the
130 claimant and the Quality of Long-Term Care Facility Improvement
131 Trust Fund; revising the percentages of the division of the
132 settlement amount; amending s. 429.41, F.S.; revising rulemaking
133 authority regarding resident care and maintenance of facilities;
134 requiring the State Fire Marshal, in cooperation with the
135 agency, to establish and enforce firesafety standards; deleting
136 the requirement for a facility to conduct a minimum number of
137 resident elopement drills; requiring the agency to use an
138 abbreviated biennial standard licensure inspection; requiring
139 the agency, in consultation with the Department of Health, to
140 develop, maintain, and update the key quality-of-care standards
141 with input from the State Long-Term Care Ombudsman Council and
142 representatives of associations and organizations representing
143 assisted living facilities; amending s. 429.42, F.S.; removing a
144 provision that required a corrective plan for deficiencies
145 related to assistance with the self-administration of medication
146 or the administration of medication; deleting a requirement that
147 the agency employ a certain number of pharmacists among its
148 personnel who inspect assisted living facilities; amending s.
149 429.445, F.S.; removing a requirement that an assisted living
150 facility submit certain information to the agency before
151 commencing construction to expand the facility; amending s.
152 429.47, F.S.; authorizing an owner of an assisted living
153 facility to advertise to the public while the facility is under
154 construction or is seeking licensure; deleting a provision that
155 prohibits a freestanding facility from advertising or implying
156 that any part of it is a nursing home; amending s. 429.49, F.S.;
157 conforming terminology to changes made by the act; amending s.
158 429.52, F.S.; revising training and education requirements for
159 certain administrators, facility staff, and other licensed
160 professionals; requiring training providers certified by the
161 department to meet continuing education requirements and
162 standards; providing conditions for the sanctioning of training
163 providers and trainees; amending s. 429.53, F.S.; removing
164 provisions relating to preconstruction approvals and reviews and
165 agency consultations; repealing s. 429.54, F.S., relating to the
166 collection of information regarding the actual cost of providing
167 services in assisted living facilities and local subsidies;
168 amending s. 429.71, F.S.; clarifying terminology; removing a
169 provision authorizing the agency to request a plan to remedy
170 violations by adult family-care homes; conforming terminology to
171 changes made by the act; amending s. 429.81, F.S.; specifying
172 that residency agreements require a resident to provide 30 days’
173 written notice of intent to terminate his or her residency;
174 creating s. 430.081, F.S.; authorizing the Department of Elderly
175 Affairs to sanction training providers and trainees for
176 infractions involving any required training; providing training
177 infractions; providing sanctions; amending s. 817.505, F.S.;
178 providing that payments by an assisted living facility are not
179 considered patient brokering under certain circumstances;
180 providing an effective date.
181
182
183 Be It Enacted by the Legislature of the State of Florida:
184
185 Section 1. Paragraph (d) of subsection (1) of section
186 400.141, Florida Statutes, is amended to read:
187 400.141 Administration and management of nursing home
188 facilities.—
189 (1) Every licensed facility shall comply with all
190 applicable standards and rules of the agency and shall:
191 (d) Provide for resident use of a community pharmacy as
192 specified in s. 400.022(1)(q). Any other law to the contrary
193 notwithstanding, a registered pharmacist licensed in Florida,
194 that is under contract with a facility licensed under this
195 chapter or chapter 429, shall repackage a nursing facility
196 resident’s bulk prescription medication which has been packaged
197 by another pharmacist licensed in any state in the United States
198 into a unit dose system compatible with the system used by the
199 nursing facility, if the pharmacist is requested to offer such
200 service. In order to be eligible for the repackaging, a resident
201 or the resident’s spouse must receive prescription medication
202 benefits provided through a former employer as part of his or
203 her retirement benefits, a qualified pension plan as specified
204 in s. 4972 of the Internal Revenue Code, a federal retirement
205 program as specified under 5 C.F.R. s. 831, or a long-term care
206 policy as defined in s. 627.9404(1). A pharmacist who correctly
207 repackages and relabels the medication and the nursing facility
208 which correctly administers such repackaged medication under
209 this paragraph may not be held liable in any civil or
210 administrative action arising from the repackaging. In order to
211 be eligible for the repackaging, a nursing facility resident for
212 whom the medication is to be repackaged shall sign an informed
213 consent form provided by the facility which includes an
214 explanation of the repackaging process and which notifies the
215 resident of the immunities from liability provided in this
216 paragraph. A pharmacist who repackages and relabels prescription
217 medications, as authorized under this paragraph, may charge a
218 reasonable fee for costs resulting from the administration
219 implementation of this provision.
220 Section 2. Subsection (13) of section 408.820, Florida
221 Statutes, is amended to read:
222 408.820 Exemptions.—Except as prescribed in authorizing
223 statutes, the following exemptions shall apply to specified
224 requirements of this part:
225 (13) Assisted living facilities, as provided under part I
226 of chapter 429, are exempt from ss. s. 408.810(10) and
227 408.813(2).
228 Section 3. Subsection (41) of section 409.912, Florida
229 Statutes, is amended to read:
230 409.912 Cost-effective purchasing of health care.—The
231 agency shall purchase goods and services for Medicaid recipients
232 in the most cost-effective manner consistent with the delivery
233 of quality medical care. To ensure that medical services are
234 effectively utilized, the agency may, in any case, require a
235 confirmation or second physician’s opinion of the correct
236 diagnosis for purposes of authorizing future services under the
237 Medicaid program. This section does not restrict access to
238 emergency services or poststabilization care services as defined
239 in 42 C.F.R. part 438.114. Such confirmation or second opinion
240 shall be rendered in a manner approved by the agency. The agency
241 shall maximize the use of prepaid per capita and prepaid
242 aggregate fixed-sum basis services when appropriate and other
243 alternative service delivery and reimbursement methodologies,
244 including competitive bidding pursuant to s. 287.057, designed
245 to facilitate the cost-effective purchase of a case-managed
246 continuum of care. The agency shall also require providers to
247 minimize the exposure of recipients to the need for acute
248 inpatient, custodial, and other institutional care and the
249 inappropriate or unnecessary use of high-cost services. The
250 agency shall contract with a vendor to monitor and evaluate the
251 clinical practice patterns of providers in order to identify
252 trends that are outside the normal practice patterns of a
253 provider’s professional peers or the national guidelines of a
254 provider’s professional association. The vendor must be able to
255 provide information and counseling to a provider whose practice
256 patterns are outside the norms, in consultation with the agency,
257 to improve patient care and reduce inappropriate utilization.
258 The agency may mandate prior authorization, drug therapy
259 management, or disease management participation for certain
260 populations of Medicaid beneficiaries, certain drug classes, or
261 particular drugs to prevent fraud, abuse, overuse, and possible
262 dangerous drug interactions. The Pharmaceutical and Therapeutics
263 Committee shall make recommendations to the agency on drugs for
264 which prior authorization is required. The agency shall inform
265 the Pharmaceutical and Therapeutics Committee of its decisions
266 regarding drugs subject to prior authorization. The agency is
267 authorized to limit the entities it contracts with or enrolls as
268 Medicaid providers by developing a provider network through
269 provider credentialing. The agency may competitively bid single
270 source-provider contracts if procurement of goods or services
271 results in demonstrated cost savings to the state without
272 limiting access to care. The agency may limit its network based
273 on the assessment of beneficiary access to care, provider
274 availability, provider quality standards, time and distance
275 standards for access to care, the cultural competence of the
276 provider network, demographic characteristics of Medicaid
277 beneficiaries, practice and provider-to-beneficiary standards,
278 appointment wait times, beneficiary use of services, provider
279 turnover, provider profiling, provider licensure history,
280 previous program integrity investigations and findings, peer
281 review, provider Medicaid policy and billing compliance records,
282 clinical and medical record audits, and other factors. Providers
283 shall not be entitled to enrollment in the Medicaid provider
284 network. The agency shall determine instances in which allowing
285 Medicaid beneficiaries to purchase durable medical equipment and
286 other goods is less expensive to the Medicaid program than long
287 term rental of the equipment or goods. The agency may establish
288 rules to facilitate purchases in lieu of long-term rentals in
289 order to protect against fraud and abuse in the Medicaid program
290 as defined in s. 409.913. The agency may seek federal waivers
291 necessary to administer these policies.
292 (41) The agency shall establish provide for the development
293 of a demonstration project by establishment in Miami-Dade County
294 of a long-term-care facility and a psychiatric facility licensed
295 pursuant to chapter 395 to improve access to health care for a
296 predominantly minority, medically underserved, and medically
297 complex population and to evaluate alternatives to nursing home
298 care and general acute care for such population. Such project is
299 to be located in a health care condominium and collocated
300 colocated with licensed facilities providing a continuum of
301 care. These projects are The establishment of this project is
302 not subject to the provisions of s. 408.036 or s. 408.039.
303 Section 4. Subsection (2) of section 429.01, Florida
304 Statutes, is amended to read:
305 429.01 Short title; purpose.—
306 (2) The purpose of this act is to:
307 (a) Promote the availability of appropriate services for
308 elderly persons and adults with disabilities in the least
309 restrictive and most homelike environment;, to
310 (b) Encourage the development of facilities that promote
311 the dignity, individuality, privacy, and decisionmaking ability
312 of such persons;, to
313 (c) Provide for the health, safety, and welfare of
314 residents of assisted living facilities in the state;, to
315 (d) Promote continued improvement of such facilities;, to
316 encourage the development of innovative and affordable
317 facilities particularly for persons with low to moderate
318 incomes;, to
319 (e) Ensure that all agencies of the state cooperate in the
320 protection of such residents;, and to
321 (f) Ensure that needed economic, social, mental health,
322 health, and leisure services are made available to residents of
323 such facilities through the efforts of the Agency for Health
324 Care Administration, the Department of Elderly Affairs, the
325 Department of Children and Family Services, the Department of
326 Health, assisted living facilities, and other community
327 agencies.
328
329 To the maximum extent possible, appropriate community-based
330 programs must be available to state-supported residents to
331 augment the services provided in assisted living facilities. The
332 Legislature recognizes that assisted living facilities are an
333 important part of the continuum of long-term care in the state
334 as community-based social models that have a health component
335 and not as medical or nursing facilities. In support of the goal
336 of aging in place, the Legislature further recognizes that
337 assisted living facilities should be operated and regulated as
338 residential environments with supportive services and not as
339 medical or nursing facilities and, as such, should not be
340 subject to the same regulations as medical or nursing facilities
341 but instead be regulated in a less restrictive manner that is
342 appropriate for a residential, nonmedical setting. The services
343 available in these facilities, either directly or through
344 contract or agreement, are intended to help residents remain as
345 independent as possible. Regulations governing these facilities
346 must be sufficiently flexible to allow facilities to adopt
347 policies that enable residents to age in place when resources
348 are available to meet their needs and accommodate their
349 preferences.
350 Section 5. Section 429.02, Florida Statutes, is amended to
351 read:
352 429.02 Definitions.—When used in this part, the term:
353 (1) “Activities of daily living” means functions and tasks
354 for self-care, including ambulation, bathing, dressing, eating,
355 grooming, and toileting, and other similar tasks.
356 (2) “Administrator” means an individual at least 21 years
357 of age who is responsible for the operation and maintenance of
358 an assisted living facility; for promoting the resident’s
359 dignity, autonomy, independence, and privacy in the least
360 restrictive and most homelike setting consistent with the
361 resident’s preferences and physical and mental statuses; and for
362 ensuring the appropriateness of continued placement of a
363 resident, in consultation with the resident, resident’s
364 representative or designee, if applicable, and the resident’s
365 physician.
366 (3) “Agency” means the Agency for Health Care
367 Administration.
368 (4) “Aging in place” or “age in place” means the process of
369 providing increased or adjusted services to a person to
370 compensate for the physical or mental decline that may occur
371 with the aging process, in order to maximize the person’s
372 dignity and independence and permit them to remain in a
373 familiar, noninstitutional, residential environment for as long
374 as possible, as determined by the individual, his or her
375 physician, and the administrator. Such services may be provided
376 by facility staff, volunteers, family, or friends, or through
377 contractual arrangements with a third party.
378 (5) “Arbitration” means a process whereby a neutral third
379 person or panel, called an arbitrator or arbitration panel,
380 considers the facts and arguments presented by the parties and
381 renders a decision that may be biding or nonbinding as provided
382 for in chapter 44.
383 (6)(5) “Assisted living facility” means any residential
384 setting that provides, directly or indirectly by means of
385 contracts or arrangements, for a period exceeding 24 hours,
386 building or buildings, section or distinct part of a building,
387 private home, boarding home, home for the aged, or other
388 residential facility, whether operated for profit or not, which
389 undertakes through its ownership or management to provide
390 housing, meals, and one or more personal services that meet the
391 resident’s changing needs and preferences for a period exceeding
392 24 hours to one or more adults who are not relatives of the
393 owner or administrator. As used in this subsection, the term
394 “residential setting” includes, but is not limited to, a
395 building or buildings, section or distinct part of a building,
396 private home, or other residence.
397 (7)(6) “Chemical restraint” means a pharmacologic drug that
398 physically limits, restricts, or deprives an individual of
399 movement or mobility, and is used for discipline or convenience
400 and not required for the treatment of medical symptoms.
401 (8)(7) “Community living support plan” means a written
402 document prepared by a mental health resident and the resident’s
403 mental health case manager, in consultation with the
404 administrator or the administrator’s designee, of an assisted
405 living facility with a limited mental health license or the
406 administrator’s designee. A copy must be provided to the
407 administrator. The plan must include information about the
408 supports, services, and special needs of the resident which
409 enable the resident to live in the assisted living facility and
410 a method by which facility staff can recognize and respond to
411 the signs and symptoms particular to that resident which
412 indicate the need for professional services.
413 (9)(8) “Cooperative agreement” means a written statement of
414 understanding between a mental health care provider and the
415 administrator of the assisted living facility with a limited
416 mental health license in which a mental health resident is
417 living. The agreement must specify directions for accessing
418 emergency and after-hours care for the mental health resident. A
419 single cooperative agreement may service all mental health
420 residents who are clients of the same mental health care
421 provider.
422 (11)(9) “Department” means the Department of Elderly
423 Affairs.
424 (12)(10) “Emergency” means a situation, physical condition,
425 or method of operation which presents imminent danger of death
426 or serious physical or mental harm to facility residents.
427 (13)(11) “Extended congregate care” means acts beyond those
428 authorized in subsection (20) (16) that may be performed
429 pursuant to part I of chapter 464 by persons licensed thereunder
430 while carrying out their professional duties, and other
431 supportive services which may be specified by rule. The purpose
432 of such services is to enable residents to age in place in a
433 residential environment despite mental or physical limitations
434 that might otherwise disqualify them from residency in a
435 facility licensed under this part.
436 (14)(12) “Guardian” means a person to whom the law has
437 entrusted the custody and control of the person or property, or
438 both, of a person who has been legally adjudged incapacitated.
439 (15) “Licensed facility” means an assisted living facility
440 for which a licensee has been issued a license pursuant to this
441 part and part II of chapter 408.
442 (16)(13) “Limited nursing services” means acts that may be
443 performed pursuant to part I of chapter 464 by persons licensed
444 thereunder while carrying out their professional duties but
445 limited to those acts which the department specifies by rule.
446 Acts which may be specified by rule as allowable limited nursing
447 services shall be for persons who meet the admission criteria
448 established by the department for assisted living facilities and
449 shall not be complex enough to require 24-hour nursing
450 supervision and may include such services as the application and
451 care of routine dressings, and care of casts, braces, and
452 splints.
453 (17)(14) “Managed risk” means the process by which the
454 facility staff discuss the service plan and the needs of the
455 resident with the resident and, if applicable, the resident’s
456 representative or designee or the resident’s surrogate,
457 guardian, or attorney in fact, in such a way that the
458 consequences of a decision, including any inherent risk, are
459 explained to all parties and reviewed periodically in
460 conjunction with the service plan, taking into account changes
461 in the resident’s status and the ability of the facility to
462 respond accordingly.
463 (18)(15) “Mental health resident” means an individual who
464 receives social security disability income due to a mental
465 disorder as determined by the Social Security Administration or
466 receives supplemental security income due to a mental disorder
467 as determined by the Social Security Administration and receives
468 optional state supplementation.
469 (19) “Person” means any individual, partnership,
470 corporation, association, or governmental unit.
471 (20)(16) “Personal services” means direct physical
472 assistance with or supervision of the activities of daily living
473 and the self-administration of medication and other similar
474 services which the department may define by rule. “Personal
475 services” shall not be construed to mean the provision of
476 medical, nursing, dental, or mental health services.
477 (21)(17) “Physical restraint” means a device which
478 physically limits, restricts, or deprives an individual of
479 movement or mobility, including, but not limited to, a half-bed
480 rail, a full-bed rail, a geriatric chair, and a posey restraint.
481 The term “physical restraint” shall also include any device
482 which was not specifically manufactured as a restraint but which
483 has been altered, arranged, or otherwise used for this purpose.
484 The term shall not include bandage material used for the purpose
485 of binding a wound or injury.
486 (22)(18) “Relative” means an individual who is the father,
487 mother, stepfather, stepmother, son, daughter, brother, sister,
488 grandmother, grandfather, great-grandmother, great-grandfather,
489 grandson, granddaughter, uncle, aunt, first cousin, nephew,
490 niece, husband, wife, father-in-law, mother-in-law, son-in-law,
491 daughter-in-law, brother-in-law, sister-in-law, stepson,
492 stepdaughter, stepbrother, stepsister, half brother, or half
493 sister of an owner or administrator.
494 (23)(19) “Resident” means a person 18 years of age or
495 older, residing in and receiving care from an assisted living a
496 facility.
497 (24)(20) “Resident’s representative or designee” means a
498 person other than the owner, or an agent or employee of the
499 assisted living facility, designated in writing by the resident,
500 if legally competent, to receive notice of changes in the
501 contract executed pursuant to s. 429.24; to receive notice of
502 and to participate in meetings between the resident and the
503 facility owner, administrator, or staff concerning the rights of
504 the resident; to assist the resident in contacting the ombudsman
505 council if the resident has a complaint against the facility; or
506 to bring legal action on behalf of the resident pursuant to s.
507 429.29.
508 (25)(21) “Service plan” means a written plan, developed and
509 agreed upon by the resident and, if applicable, the resident’s
510 representative or designee or the resident’s surrogate,
511 guardian, or attorney in fact, if any, and the administrator or
512 the administrator’s designee representing the facility, which
513 addresses the unique physical and psychosocial needs, abilities,
514 and personal preferences of each resident receiving extended
515 congregate care services. The plan shall include a brief written
516 description, in easily understood language, of what services
517 shall be provided, who shall provide the services, when the
518 services shall be rendered, and the purposes and benefits of the
519 services.
520 (26)(22) “Shared responsibility” means exploring the
521 options available to a resident within a facility and the risks
522 involved with each option when making decisions pertaining to
523 the resident’s abilities, preferences, and service needs,
524 thereby enabling the resident and, if applicable, the resident’s
525 representative or designee, or the resident’s surrogate,
526 guardian, or attorney in fact, and the facility to develop a
527 service plan which best meets the resident’s needs and seeks to
528 improve the resident’s quality of life.
529 (27)(23) “Supervision” means reminding residents to engage
530 in activities of daily living and the self-administration of
531 medication, and, when necessary, observing or providing verbal
532 cuing to residents while they perform these activities. The term
533 “supervision” does not include one-on-one observation.
534 (28)(24) “Supplemental security income,” Title XVI of the
535 Social Security Act, means a program through which the Federal
536 Government guarantees a minimum monthly income to every person
537 who is age 65 or older, or disabled, or blind and meets the
538 income and asset requirements.
539 (29)(25) “Supportive services” means services designed to
540 encourage and assist residents aged persons or adults with
541 disabilities to remain in the least restrictive living
542 environment and to maintain their independence as long as
543 possible.
544 (30)(26) “Twenty-four-hour nursing supervision” means
545 services that are ordered by a physician for a resident whose
546 condition requires the supervision of a physician and continued
547 monitoring of vital signs and physical status. Such services
548 shall be: medically complex enough to require constant
549 supervision, assessment, planning, or intervention by a nurse;
550 required to be performed by or under the direct supervision of
551 licensed nursing personnel or other professional personnel for
552 safe and effective performance; required on a daily basis; and
553 consistent with the nature and severity of the resident’s
554 condition or the disease state or stage.
555 Section 6. Paragraphs (g) and (h) of subsection (2) of
556 section 429.04, Florida Statutes, are amended to read:
557 429.04 Facilities to be licensed; exemptions.—
558 (2) The following are exempt from licensure under this
559 part:
560 (g) Any facility certified under chapter 651, or a
561 retirement community, may provide services authorized under this
562 part or part III of chapter 400 to its residents who live in
563 single-family homes, duplexes, quadruplexes, or apartments
564 located on the campus without obtaining a license to operate an
565 assisted living facility if residential units within such
566 buildings are used by residents who do not require staff
567 supervision for that portion of the day when personal services
568 are not being delivered and the owner obtains a home health
569 license to provide such services. However, any building or
570 distinct part of a building on the campus that is designated for
571 persons who receive personal services and require supervision
572 beyond that which is available while such services are being
573 rendered must be licensed in accordance with this part. If a
574 facility provides personal services to residents who do not
575 otherwise require supervision and the owner is not licensed as a
576 home health agency, the buildings or distinct parts of buildings
577 where such services are rendered must be licensed under this
578 part. A resident of a facility that obtains a home health
579 license may contract with a home health agency of his or her
580 choice, provided that the home health agency provides liability
581 insurance and workers’ compensation coverage for its employees.
582 Facilities covered by this exemption may establish policies that
583 give residents the option of contracting for services and care
584 beyond that which is provided by the facility to enable them to
585 age in place. For purposes of this section, a retirement
586 community consists of a facility licensed under this part or a
587 facility licensed under part II of chapter 400, and apartments
588 designed for independent living located on the same campus.
589 (h) Any residential unit for independent living which is
590 located within a facility certified under chapter 651, or any
591 residential unit for independent living which is collocated
592 colocated with a nursing home licensed under part II of chapter
593 400 or collocated colocated with a facility licensed under this
594 part in which services are provided through an outpatient clinic
595 or a nursing home on an outpatient basis.
596 Section 7. Subsections (3) and (4) of section 429.07,
597 Florida Statutes, are amended, and subsections (6) and (7) are
598 added to that section, to read:
599 429.07 License required; fee.—
600 (3) In addition to the requirements of s. 408.806, each
601 license granted by the agency must state the type of care for
602 which the license is granted. Licenses shall be issued for one
603 or more of the following categories of care: standard, extended
604 congregate care, limited nursing services, or limited mental
605 health.
606 (a) A standard license shall be issued to a licensee for a
607 facility facilities providing one or more of the personal
608 services identified in s. 429.02. Such facilities may also
609 employ or contract with a person licensed under part I of
610 chapter 464 to administer medications and perform other tasks as
611 specified in s. 429.255.
612 (b) An extended congregate care license shall be issued to
613 a licensee for a facility facilities providing, directly or
614 through contract, services beyond those authorized in paragraph
615 (a), including services performed by persons licensed under part
616 I of chapter 464 and supportive services, as defined by rule, to
617 persons who would otherwise be disqualified from continued
618 residence in a facility licensed under this part.
619 1. In order for extended congregate care services to be
620 provided, the agency must first determine that all requirements
621 established in law and rule are met and must specifically
622 designate, on the facility’s license, that such services may be
623 provided and whether the designation applies to all or part of
624 the facility. Such designation may be made at the time of
625 initial licensure or relicensure, or upon request in writing by
626 a licensee under this part and part II of chapter 408. The
627 notification of approval or the denial of the request shall be
628 made in accordance with part II of chapter 408. Existing
629 facilities qualifying to provide extended congregate care
630 services must have maintained a standard license and may not
631 have been subject to administrative sanctions during the
632 previous 2 years, or since initial licensure if the facility has
633 been licensed for less than 2 years, for any of the following
634 reasons:
635 a. A class I or class II violation;
636 b. Three or more repeat or recurring class III violations
637 of identical or similar resident care standards from which a
638 pattern of noncompliance is found by the agency;
639 c. Three or more class III violations that were not
640 corrected in accordance with the corrective action plan approved
641 by the agency;
642 b.d. Violation of resident care standards which results in
643 requiring the facility to employ the services of a consultant
644 pharmacist or consultant dietitian; or
645 e. Denial, suspension, or revocation of a license for
646 another facility licensed under this part in which the applicant
647 for an extended congregate care license has at least 25 percent
648 ownership interest; or
649 c.f. Imposition of a moratorium pursuant to this part or
650 part II of chapter 408 or initiation of injunctive proceedings.
651 2. A licensee facility that is licensed to provide extended
652 congregate care services shall maintain a written progress
653 report for on each person who receives services, and the report
654 must describe which describes the type, amount, duration, scope,
655 and outcome of services that are rendered and the general status
656 of the resident’s health. A registered nurse, or appropriate
657 designee, representing the agency shall visit the facility at
658 least quarterly to monitor residents who are receiving extended
659 congregate care services and to determine if the facility is in
660 compliance with this part, part II of chapter 408, and relevant
661 rules. One of the visits may be in conjunction with the regular
662 survey. The monitoring visits may be provided through
663 contractual arrangements with appropriate community agencies. A
664 registered nurse shall serve as part of the team that inspects
665 the facility. The agency may waive one of the required yearly
666 monitoring visits for a facility that has been licensed for at
667 least 24 months to provide extended congregate care services,
668 if, during the inspection, the registered nurse determines that
669 extended congregate care services are being provided
670 appropriately, and if the facility has no class I or class II
671 violations and no uncorrected class III violations. The agency
672 must first consult with the long-term care ombudsman council for
673 the area in which the facility is located to determine if any
674 complaints have been made and substantiated about the quality of
675 services or care. The agency may not waive one of the required
676 yearly monitoring visits if complaints have been made and
677 substantiated.
678 3. A licensee facility that is licensed to provide extended
679 congregate care services shall must:
680 a. Demonstrate the capability to meet unanticipated
681 resident service needs.
682 b. Offer a physical environment that promotes a homelike
683 setting, provides for resident privacy, promotes resident
684 independence, and allows sufficient congregate space as defined
685 by rule.
686 c. Have sufficient staff available, taking into account the
687 physical plant and firesafety features of the residential
688 setting building, to assist with the evacuation of residents in
689 an emergency.
690 d. Adopt and follow policies and procedures that maximize
691 resident independence, dignity, choice, and decisionmaking to
692 permit residents to age in place, so that moves due to changes
693 in functional status are minimized or avoided.
694 e. Allow residents or, if applicable, a resident’s
695 representative, designee, surrogate, guardian, or attorney in
696 fact to make a variety of personal choices, participate in
697 developing service plans, and share responsibility in
698 decisionmaking.
699 f. Implement the concept of managed risk.
700 g. Provide, directly or through contract, the services of a
701 person licensed under part I of chapter 464.
702 h. In addition to the training mandated in s. 429.52,
703 provide specialized training as defined by rule for facility
704 staff.
705 4. A facility that is licensed to provide extended
706 congregate care services is exempt from the criteria for
707 continued residency set forth in rules adopted under s. 429.41.
708 A licensed facility must adopt its own requirements within
709 guidelines for continued residency set forth by rule. However,
710 the facility may not serve residents who require 24-hour nursing
711 supervision. A licensed facility that provides extended
712 congregate care services must also provide each resident with a
713 written copy of facility policies governing admission and
714 retention.
715 5. The primary purpose of extended congregate care services
716 is to allow residents, as they become more impaired, the option
717 of remaining in a familiar setting from which they would
718 otherwise be disqualified for continued residency. A facility
719 licensed to provide extended congregate care services may also
720 admit an individual who exceeds the admission criteria for a
721 facility with a standard license, if the individual is
722 determined appropriate for admission to the extended congregate
723 care facility.
724 6. Before the admission of an individual to a facility
725 licensed to provide extended congregate care services, the
726 individual must undergo a medical examination as provided in s.
727 429.26(4) and the licensee facility must develop a preliminary
728 service plan for the individual.
729 7. When a licensee facility can no longer provide or
730 arrange for services in accordance with the resident’s service
731 plan and needs and the licensee’s facility’s policy, the
732 licensee facility shall make arrangements for relocating the
733 person in accordance with s. 429.28(1)(k).
734 8. Failure to provide extended congregate care services may
735 result in denial of extended congregate care license renewal.
736 (c) A limited nursing services license shall be issued to a
737 facility that provides services beyond those authorized in
738 paragraph (a) and as specified in this paragraph.
739 1. In order for limited nursing services to be provided in
740 a facility licensed under this part, the agency must first
741 determine that all requirements established in law and rule are
742 met and must specifically designate, on the facility’s license,
743 that such services may be provided. Such designation may be made
744 at the time of initial licensure or relicensure, or upon request
745 in writing by a licensee under this part and part II of chapter
746 408. Notification of approval or denial of such request shall be
747 made in accordance with part II of chapter 408. Existing
748 facilities qualifying to provide limited nursing services shall
749 have maintained a standard license and may not have been subject
750 to administrative sanctions that affect the health, safety, and
751 welfare of residents for the previous 2 years or since initial
752 licensure if the facility has been licensed for less than 2
753 years.
754 2. Facilities that are licensed to provide limited nursing
755 services shall maintain a written progress report on each person
756 who receives such nursing services, which report describes the
757 type, amount, duration, scope, and outcome of services that are
758 rendered and the general status of the resident’s health. A
759 registered nurse representing the agency shall visit such
760 facilities at least twice a year to monitor residents who are
761 receiving limited nursing services and to determine if the
762 facility is in compliance with applicable provisions of this
763 part, part II of chapter 408, and related rules. The monitoring
764 visits may be provided through contractual arrangements with
765 appropriate community agencies. A registered nurse shall also
766 serve as part of the team that inspects such facility.
767 3. A person who receives limited nursing services under
768 this part must meet the admission criteria established by the
769 agency for assisted living facilities. When a resident no longer
770 meets the admission criteria for a facility licensed under this
771 part, arrangements for relocating the person shall be made in
772 accordance with s. 429.28(1)(k), unless the facility is licensed
773 to provide extended congregate care services.
774 (4) In accordance with s. 408.805, an applicant or licensee
775 shall pay a fee for each license application submitted under
776 this part, part II of chapter 408, and applicable rules. The
777 amount of the fee shall be established by rule.
778 (a) The biennial license fee required of a facility is $300
779 per license, with an additional fee of $71 $50 per resident
780 based on the total licensed resident capacity of the facility,
781 except that no additional fee will be assessed for beds used by
782 designated for recipients of Medicaid home and community-based
783 waiver programs optional state supplementation payments provided
784 for in s. 409.212. The total fee may not exceed $13,443 $10,000.
785 (b) In addition to the total fee assessed under paragraph
786 (a), the agency shall require facilities that are licensed to
787 provide extended congregate care services under this part to pay
788 an additional fee per licensed facility. The amount of the
789 biennial fee shall be $400 per license, with an additional fee
790 of $10 per resident based on the total licensed resident
791 capacity of the facility.
792 (c) In addition to the total fee assessed under paragraph
793 (a), the agency shall require facilities that are licensed to
794 provide limited nursing services under this part to pay an
795 additional fee per licensed facility. The amount of the biennial
796 fee shall be $250 per license, with an additional fee of $10 per
797 resident based on the total licensed resident capacity of the
798 facility.
799 (6) In order to determine whether the facility must
800 participate in the monitoring activities during the 12-month
801 period, the agency shall conduct a biennial survey to discuss
802 the residents’ experiences within the facility. This survey must
803 include private, informal conversations with a sample of
804 residents and a consultation with the ombudsman council in the
805 planning and service area in which the facility is located.
806 (7) An assisted living facility that has been cited within
807 the previous 24-month period for a class I violation or class II
808 violation, regardless of the status of any enforcement or
809 disciplinary action, is subject to periodic unannounced
810 monitoring to determine if the facility is in compliance with
811 this part, part II of chapter 408, and applicable rules.
812 Monitoring may occur through a desk review or an onsite
813 assessment. If the class I violation or class II violation
814 relates to providing or failing to provide nursing care, a
815 registered nurse must participate in the monitoring visits
816 during the 12-month period following the violation.
817 Section 8. Paragraph (a) of subsection (2) of section
818 429.08, Florida Statutes, is amended to read:
819 429.08 Unlicensed facilities; referral of person for
820 residency to unlicensed facility; penalties.—
821 (2) It is unlawful to knowingly refer a person for
822 residency to an unlicensed assisted living facility; to an
823 assisted living facility the license of which is under denial or
824 has been suspended or revoked; or to an assisted living facility
825 that has a moratorium pursuant to part II of chapter 408.
826 (a) Any health care practitioner, as defined in s. 456.001,
827 or emergency medical technician or paramedic certified under
828 part III of chapter 401, who is aware of the operation of an
829 unlicensed facility shall report that facility to the agency.
830 Failure to report a facility that the practitioner knows or has
831 reasonable cause to suspect is unlicensed shall be reported to
832 the practitioner’s licensing board.
833 Section 9. Subsection (8) is added to section 429.11,
834 Florida Statutes, to read:
835 429.11 Initial application for license; provisional
836 license.—
837 (8) The agency shall develop an abbreviated form for
838 submission of proof of financial ability to operate under s.
839 408.810(8) which is specific to applicants for a license to
840 operate an assisted living facility. The form must request
841 information that demonstrates the applicant has adequate
842 resources to sustain operations and has sufficient assets,
843 credit, and projected revenues to cover liabilities and expenses
844 of the facility based on the number of beds and services the
845 applicant will provide.
846 Section 10. Section 429.12, Florida Statutes, is amended to
847 read:
848 429.12 Sale or transfer of ownership of a facility.—It is
849 the intent of the Legislature to protect the rights of the
850 residents of an assisted living facility when the facility is
851 sold or the ownership thereof is transferred. Therefore, In
852 addition to the requirements of part II of chapter 408, whenever
853 a facility is sold or the ownership thereof is transferred,
854 including leasing,:
855 (1) the transferee shall notify the residents, in writing,
856 of the change of ownership within 7 days after receipt of the
857 new license in order to protect the rights of the residents of
858 an assisted living facility.
859 (2) The transferor of a facility the license of which is
860 denied pending an administrative hearing shall, as a part of the
861 written change-of-ownership contract, advise the transferee that
862 a plan of correction must be submitted by the transferee and
863 approved by the agency at least 7 days before the change of
864 ownership and that failure to correct the condition which
865 resulted in the moratorium pursuant to part II of chapter 408 or
866 denial of licensure is grounds for denial of the transferee’s
867 license.
868 Section 11. Section 429.14, Florida Statutes, is amended to
869 read:
870 429.14 Administrative penalties.—
871 (1) In addition to the requirements of part II of chapter
872 408, the agency may deny, revoke, and suspend any license issued
873 under this part and impose an administrative fine in the manner
874 provided in chapter 120 against a licensee for a violation of
875 any provision of this part, part II of chapter 408, or
876 applicable rules, or for any of the following actions by a
877 licensee, for the actions of any person subject to level 2
878 background screening under s. 408.809, or for the actions of any
879 facility employee:
880 (a) An intentional or negligent act seriously affecting the
881 health, safety, or welfare of a resident of the facility.
882 (b) The determination by the agency that the owner lacks
883 the financial ability to provide continuing adequate care to
884 residents.
885 (c) Misappropriation or conversion of the property of a
886 resident of the facility.
887 (d) Failure to follow the criteria and procedures provided
888 under part I of chapter 394 relating to the transportation,
889 voluntary admission, and involuntary examination of a facility
890 resident.
891 (d)(e) A citation of any of the following violations
892 deficiencies as specified in s. 429.19:
893 1. One or more cited class I violations deficiencies.
894 2. Three or more cited class II violations deficiencies.
895 3. Five or more cited class III violations deficiencies
896 that have been cited on a single survey and have not been
897 corrected within the times specified.
898 (e)(f) Failure to comply with the background screening
899 standards of this part, s. 408.809(1), or chapter 435.
900 (f)(g) Violation of a moratorium.
901 (g)(h) Failure of the license applicant, the licensee
902 during relicensure, or a licensee that holds a provisional
903 license to meet the minimum license requirements of this part,
904 or related rules, at the time of license application or renewal.
905 (h)(i) An intentional or negligent life-threatening act in
906 violation of the uniform firesafety standards for assisted
907 living facilities or other firesafety standards that threatens
908 the health, safety, or welfare of a resident of a facility, as
909 communicated to the agency by the local authority having
910 jurisdiction or the State Fire Marshal.
911 (i)(j) Knowingly operating any unlicensed facility or
912 providing without a license any service that must be licensed
913 under this chapter or chapter 400.
914 (j)(k) Any act constituting a ground upon which application
915 for a license may be denied.
916 (2) Upon notification by the local authority having
917 jurisdiction or by the State Fire Marshal, the agency may deny
918 or revoke the license of a licensee of an assisted living
919 facility that fails to correct cited fire code violations that
920 affect or threaten the health, safety, or welfare of a resident
921 of a facility.
922 (3) The agency may deny a license to any applicant or
923 controlling interest as defined in part II of chapter 408 which
924 has or had a 25-percent or greater financial or ownership
925 interest in any other facility licensed under this part, or in
926 any entity licensed by this state or another state to provide
927 health or residential care, which facility or entity during the
928 5 years prior to the application for a license closed due to
929 financial inability to operate; had a receiver appointed or a
930 license denied, suspended, or revoked; was subject to a
931 moratorium; or had an injunctive proceeding initiated against
932 it.
933 (4) The agency shall deny or revoke the license of an
934 assisted living facility that has two or more class I violations
935 that are similar or identical to violations identified by the
936 agency during a survey, inspection, monitoring visit, or
937 complaint investigation occurring within the previous 2 years.
938 (4)(5) An action taken by the agency to suspend, deny, or
939 revoke a licensee’s facility’s license under this part or part
940 II of chapter 408, in which the agency claims that the facility
941 owner or a staff member an employee of the facility has
942 threatened the health, safety, or welfare of a resident of the
943 facility must be heard by the Division of Administrative
944 Hearings of the Department of Management Services within 120
945 days after receipt of the facility’s request for a hearing,
946 unless that time limitation is waived by both parties. The
947 administrative law judge must render a decision within 30 days
948 after receipt of a proposed recommended order.
949 (6) The agency shall provide to the Division of Hotels and
950 Restaurants of the Department of Business and Professional
951 Regulation, on a monthly basis, a list of those assisted living
952 facilities that have had their licenses denied, suspended, or
953 revoked or that are involved in an appellate proceeding pursuant
954 to s. 120.60 related to the denial, suspension, or revocation of
955 a license.
956 (5)(7) Agency notification of a license suspension or
957 revocation, or denial of a license renewal, shall be posted and
958 visible to the public at the facility.
959 Section 12. Subsections (1), (4), and (5) of section
960 429.17, Florida Statutes, are amended to read:
961 429.17 Expiration of license; renewal; conditional
962 license.—
963 (1) Limited nursing, Extended congregate care, and limited
964 mental health licenses shall expire at the same time as the
965 facility’s standard license, regardless of when issued.
966 (4) In addition to the license categories available in s.
967 408.808, a conditional license may be issued to an applicant for
968 license renewal if the applicant fails to meet all standards and
969 requirements for licensure. A conditional license issued under
970 this subsection shall be limited in duration to a specific
971 period of time not to exceed 6 months, as determined by the
972 agency, and shall be accompanied by an agency-approved plan of
973 correction.
974 (5) When an extended congregate care or limited nursing
975 license is requested during a facility’s biennial license
976 period, the fee shall be prorated in order to permit the
977 additional license to expire at the end of the biennial license
978 period. The fee shall be calculated as of the date the
979 additional license application is received by the agency.
980 Section 13. Subsections (1), (6), (7), and (8) of section
981 429.178, Florida Statutes, are amended to read:
982 429.178 Special care for persons with Alzheimer’s disease
983 or other related disorders.—
984 (1) A facility that which advertises that it provides
985 special care for persons with Alzheimer’s disease or other
986 related disorders must meet the following standards of
987 operation:
988 (a)1. If the facility has 17 or more residents, Have an
989 awake staff member on duty at all hours of the day and night for
990 each secured unit of the facility which houses any residents who
991 have Alzheimer’s disease or other related disorders.; or
992 2. If the facility has fewer than 17 residents, have an
993 awake staff member on duty at all hours of the day and night or
994 have mechanisms in place to monitor and ensure the safety of the
995 facility’s residents.
996 (b) Offer activities specifically designed for persons who
997 are cognitively impaired.
998 (c) Have a physical environment that provides for the
999 safety and welfare of the facility’s residents.
1000 (d) Employ staff who have completed the training and
1001 continuing education required in subsection (2).
1002
1003 For the safety and protection of residents who have
1004 Alzheimer’s disease, related disorders, or dementia, a secured
1005 locked unit may be designated. The unit may consist of the
1006 entire building or a distinct part of the building. Exit doors
1007 shall be equipped with an operating alarm system that releases
1008 upon activation of the fire alarm. These units are exempt from
1009 specific life safety requirements to which assisted living
1010 facilities are normally subject. A staff member must be awake
1011 and present in the secured unit at all times.
1012 (6) The department shall maintain and post on its website
1013 keep a current list of providers who are approved to provide
1014 initial and continuing education for staff and direct care staff
1015 members of facilities that provide special care for persons with
1016 Alzheimer’s disease or other related disorders.
1017 (7) Any facility more than 90 percent of whose residents
1018 receive monthly optional supplementation payments is not
1019 required to pay for the training and education programs required
1020 under this section. A facility that has one or more such
1021 residents shall pay a reduced fee that is proportional to the
1022 percentage of such residents in the facility. A facility that
1023 does not have any residents who receive monthly optional
1024 supplementation payments must pay a reasonable fee, as
1025 established by the department, for such training and education
1026 programs.
1027 (7)(8) The department shall adopt rules to establish
1028 standards for trainers and training and to implement this
1029 section.
1030 Section 14. Subsections (1), (2), (5), (7), (8), and (9) of
1031 section 429.19, Florida Statutes, are amended to read:
1032 429.19 Violations; imposition of administrative fines;
1033 grounds.—
1034 (1) In addition to the requirements of part II of chapter
1035 408, the agency shall impose an administrative fine in the
1036 manner provided in chapter 120 for the violation of any
1037 provision of this part, part II of chapter 408, and applicable
1038 rules by an assisted living facility, for the actions of any
1039 person subject to level 2 background screening under s. 408.809,
1040 for the actions of any facility employee, or for an intentional
1041 or negligent act seriously affecting the health, safety, or
1042 welfare of a resident of the facility.
1043 (2) Each violation of this part and adopted rules shall be
1044 classified according to the nature of the violation and the
1045 gravity of its probable effect on facility residents. The agency
1046 shall indicate the classification on the written notice of the
1047 violation as follows:
1048 (a) Class “I” violations are those conditions or
1049 occurrences related to the operation and maintenance of a
1050 facility or to the care of residents which the agency determines
1051 present an imminent danger to the residents or a substantial
1052 probability that death or serious physical or emotional harm
1053 would result. The condition or practice that constitutes a class
1054 I violation must be abated or eliminated within 24 hours, unless
1055 a fixed period, as determined by the agency, is required for
1056 correction defined in s. 408.813. The agency shall impose an
1057 administrative fine for a cited class I violation in an amount
1058 not less than $5,000 and not exceeding $10,000 for each
1059 violation. A fine shall be levied notwithstanding the correction
1060 of the violation.
1061 (b) Class “II” violations are those conditions or
1062 occurrences related to the operation and maintenance of a
1063 facility or to the care of residents which the agency determines
1064 directly threaten the physical or emotional health, safety, or
1065 security of the residents, other than class I violations defined
1066 in s. 408.813. The agency shall impose an administrative fine
1067 for a cited class II violation in an amount not less than $1,000
1068 and not exceeding $5,000 for each violation. A fine shall be
1069 levied notwithstanding the correction of the violation.
1070 (c) Class “III” violations are those conditions or
1071 occurrences related to the operation and maintenance of a
1072 facility or to the care of residents which the agency determines
1073 indirectly or potentially threaten the physical or emotional
1074 health, safety, or security of residents, other than class I
1075 violations or class II violations defined in s. 408.813. The
1076 agency shall impose an administrative fine for a cited class III
1077 violation in an amount not less than $500 and not exceeding
1078 $1,000 for each violation. If a class III violation is corrected
1079 within the time specified, a fine may not be imposed.
1080 (d) Class “IV” violations are those conditions or
1081 occurrences related to the operation and maintenance of a
1082 facility or to required reports, forms, or documents which do
1083 not have the potential of negatively affecting residents. These
1084 violations are of a type that the agency determines do not
1085 threaten the health, safety, or security of residents defined in
1086 s. 408.813. The agency shall impose an administrative fine for a
1087 cited class IV violation in an amount not less than $100 and not
1088 exceeding $200 for each violation. A citation for a class IV
1089 violation must specify the time within which the violation is
1090 required to be corrected. If a class IV violation is corrected
1091 within the time specified, a fine may not be imposed.
1092 (5) Any action taken to correct a violation shall be
1093 documented in writing by the licensee owner or administrator of
1094 the facility and verified through followup visits by agency
1095 personnel or desk review. The agency may impose a fine and, in
1096 the case of an owner-operated facility, revoke or deny a
1097 licensee’s facility’s license when the agency has documented
1098 that a facility administrator has fraudulently misrepresented
1099 misrepresents action taken to correct a violation.
1100 (7) In addition to any administrative fines imposed, the
1101 agency may assess a survey fee, equal to the lesser of one half
1102 of the facility’s biennial license and bed fee or $500, to cover
1103 the cost of conducting initial complaint investigations that
1104 result in the finding of a violation that was the subject of the
1105 complaint or monitoring visits conducted under s. 429.28(3)(c)
1106 to verify the correction of the violations.
1107 (8) During an inspection, the agency shall make a
1108 reasonable attempt to discuss each violation with the owner or
1109 administrator of the facility before giving, prior to written
1110 notification.
1111 (9) The agency shall develop and disseminate an annual list
1112 of all facilities sanctioned or fined for violations of state
1113 standards, the number and class of violations involved, the
1114 penalties imposed, and the current status of cases. The list
1115 shall be disseminated, at no charge, to the Department of
1116 Elderly Affairs, the Department of Health, the Department of
1117 Children and Family Services, the Agency for Persons with
1118 Disabilities, the area agencies on aging, the Florida Statewide
1119 Advocacy Council, and the state and local ombudsman councils.
1120 The Department of Children and Family Services shall disseminate
1121 the list to service providers under contract to the department
1122 who are responsible for referring persons to a facility for
1123 residency. The agency may charge a fee commensurate with the
1124 cost of printing and postage to other interested parties
1125 requesting a copy of this list. This information may be provided
1126 electronically or through the agency’s Internet site.
1127 Section 15. Section 429.195, Florida Statutes, is amended
1128 to read:
1129 429.195 Rebates prohibited; penalties.—
1130 (1) It is unlawful for the licensee of any assisted living
1131 facility licensed under this part to contract or promise to pay
1132 or receive any commission, bonus, kickback, or rebate or engage
1133 in any split-fee arrangement in any form whatsoever with any
1134 health care provider or health care facility under s. 817.505
1135 physician, surgeon, organization, agency, or person, either
1136 directly or indirectly, for residents referred to an assisted
1137 living facility licensed under this part. A facility may employ
1138 or contract with persons to market the facility, provided the
1139 employee or contract provider clearly indicates that he or she
1140 represents the facility. A person or agency independent of the
1141 facility may provide placement or referral services for a fee to
1142 individuals seeking assistance in finding a suitable facility;
1143 however, any fee paid for placement or referral services must be
1144 paid by the individual looking for a facility, not by the
1145 facility.
1146 (2) A violation of this section shall be considered patient
1147 brokering and is punishable as provided in s. 817.505.
1148 (3) This section does not apply to:
1149 (a) Any individual with whom the facility employs or
1150 contracts with to market the facility if the employee or
1151 contract provider clearly indicates that he or she works with or
1152 for the facility.
1153 (b) A referral service that provides information,
1154 consultation, or referrals to consumers to assist them in
1155 finding appropriate care or housing options for seniors or
1156 disabled adults if such referred consumers are not Medicaid
1157 recipients.
1158 (c) A resident of an assisted living facility who refers to
1159 the assisted living facility a friend, a family member, or other
1160 individual with whom the resident has a personal relationship.
1161 Such a referral does not prohibit the assisted living facility
1162 from providing a monetary reward to the resident for making such
1163 a referral.
1164 Section 16. Subsections (2) and (3) of section 429.20,
1165 Florida Statutes, are amended to read:
1166 429.20 Certain solicitation prohibited; third-party
1167 supplementation.—
1168 (2) Solicitation of contributions of any kind in a
1169 threatening, coercive, or unduly forceful manner by or on behalf
1170 of an assisted living facility or facilities by any agent,
1171 employee, owner, or representative of any assisted living
1172 facility or facilities is prohibited grounds for denial,
1173 suspension, or revocation of the license of the assisted living
1174 facility or facilities by or on behalf of which such
1175 contributions were solicited.
1176 (3) The admission or maintenance of assisted living
1177 facility residents whose care is supported, in whole or in part,
1178 by state funds may not be conditioned upon the receipt of any
1179 manner of contribution or donation from any person. The
1180 solicitation or receipt of contributions in violation of this
1181 subsection is grounds for denial, suspension, or revocation of
1182 license, as provided in s. 429.14, for any assisted living
1183 facility by or on behalf of which such contributions were
1184 solicited.
1185 Section 17. Section 429.23, Florida Statutes, is amended to
1186 read:
1187 429.23 Internal risk management and quality assurance
1188 program; adverse incidents and reporting requirements.—
1189 (1) Every licensed facility licensed under this part may,
1190 as part of its administrative functions, voluntarily establish a
1191 risk management and quality assurance program, the purpose of
1192 which is to assess resident care practices, facility incident
1193 reports, violations deficiencies cited by the agency, adverse
1194 incident reports, and resident grievances and develop plans of
1195 action to correct and respond quickly to identify quality
1196 differences.
1197 (2) Every licensed facility licensed under this part is
1198 required to maintain adverse incident reports. For purposes of
1199 this section, the term, “adverse incident” means:
1200 (a) An event over which facility staff personnel could
1201 exercise control rather than as a result of the resident’s
1202 condition and results in:
1203 1. Death;
1204 2. Brain or spinal damage;
1205 3. Permanent disfigurement;
1206 4. Fracture or dislocation of bones or joints;
1207 5. Any condition that required medical attention to which
1208 the resident has not given his or her consent, excluding
1209 proceedings governed by part I of chapter 394, but including
1210 failure to honor advanced directives;
1211 6. Any condition that requires the transfer of the resident
1212 from the facility to a unit providing more acute care due to the
1213 incident rather than the resident’s condition before the
1214 incident; or
1215 7. An event that is reported to law enforcement or its
1216 personnel for investigation; or
1217 (b) Resident elopement, if the elopement places the
1218 resident at risk of harm or injury.
1219 (3) Licensed facilities shall provide within 1 business day
1220 after the occurrence of an adverse incident, by electronic mail,
1221 facsimile, or United States mail, a preliminary report to the
1222 agency on all adverse incidents specified under this section.
1223 The report must include information regarding the identity of
1224 the affected resident, the type of adverse incident, and the
1225 status of the facility’s investigation of the incident.
1226 (3)(4) A licensed facility Licensed facilities shall
1227 provide within 15 business days after the occurrence of an
1228 adverse incident, by electronic mail, facsimile, or United
1229 States mail, a full report to the agency on the all adverse
1230 incident, including information regarding the identity of the
1231 affected resident, the type of adverse incident, and incidents
1232 specified in this section. The report must include the results
1233 of the facility’s investigation into the adverse incident.
1234 (5) Each facility shall report monthly to the agency any
1235 liability claim filed against it. The report must include the
1236 name of the resident, the dates of the incident leading to the
1237 claim, if applicable, and the type of injury or violation of
1238 rights alleged to have occurred. This report is not discoverable
1239 in any civil or administrative action, except in such actions
1240 brought by the agency to enforce the provisions of this part.
1241 (4)(6) Abuse, neglect, or exploitation must be reported to
1242 the Department of Children and Family Services as required under
1243 chapter 415.
1244 (5)(7) The information reported to the agency pursuant to
1245 subsection (3) which relates to persons licensed under chapter
1246 458, chapter 459, chapter 461, chapter 464, or chapter 465 must
1247 shall be reviewed by the agency. The agency shall determine
1248 whether any of the incidents potentially involved conduct by a
1249 health care professional who is subject to disciplinary action,
1250 in which case the provisions of s. 456.073 apply. The agency may
1251 investigate, as it deems appropriate, any such incident and
1252 prescribe measures that must or may be taken in response to the
1253 incident. The agency shall review each incident and determine
1254 whether it potentially involved conduct by a health care
1255 professional who is subject to disciplinary action, in which
1256 case the provisions of s. 456.073 apply.
1257 (6)(8) If the agency, through its receipt of the adverse
1258 incident reports prescribed in this part or through any
1259 investigation, has reasonable belief that conduct by a staff
1260 member or employee of a licensed facility is grounds for
1261 disciplinary action by the appropriate board, the agency shall
1262 report this fact to such regulatory board.
1263 (7)(9) The adverse incident report reports and preliminary
1264 adverse incident reports required under this section is are
1265 confidential as provided by law and is are not discoverable or
1266 admissible in any civil or administrative action, except in
1267 disciplinary proceedings by the agency or appropriate regulatory
1268 board.
1269 (8)(10) The Department of Elderly Affairs may adopt rules
1270 necessary to administer this section.
1271 Section 18. Subsections (1) and (2) of section 429.255,
1272 Florida Statutes, are amended to read:
1273 429.255 Use of personnel; emergency care.—
1274 (1)(a) Persons under contract to the facility or, facility
1275 staff, or volunteers, who are licensed according to part I of
1276 chapter 464, or those persons exempt under s. 464.022(1), and
1277 others as defined by rule, may administer medications to
1278 residents, take residents’ vital signs, manage individual weekly
1279 pill organizers for residents who self-administer medication,
1280 give prepackaged enemas ordered by a physician, observe
1281 residents, document observations on the appropriate resident’s
1282 record, report observations to the resident’s physician, and
1283 contract or allow residents or a resident’s representative,
1284 designee, surrogate, guardian, or attorney in fact to contract
1285 with a third party, provided residents meet the criteria for
1286 appropriate placement as defined in s. 429.26. Nursing
1287 assistants certified pursuant to part II of chapter 464 may take
1288 residents’ vital signs as directed by a licensed nurse or
1289 physician. A person under contract to the facility or facility
1290 staff who is licensed under part I of chapter 464 may provide
1291 limited nursing services.
1292 (b) All staff in facilities licensed under this part shall
1293 exercise their professional responsibility to observe residents,
1294 to document observations on the appropriate resident’s record,
1295 and to report the observations to the administrator or the
1296 administrator’s designee resident’s physician. However, The
1297 owner or administrator of the facility shall be responsible for
1298 determining that the resident receiving services is appropriate
1299 for residence in the assisted living facility.
1300 (c) In an emergency situation, licensed personnel may carry
1301 out their professional duties pursuant to part I of chapter 464
1302 until emergency medical personnel assume responsibility for
1303 care.
1304 (2) In facilities licensed to provide extended congregate
1305 care, persons under contract to the facility or, facility staff,
1306 or volunteers, who are licensed according to part I of chapter
1307 464, or those persons exempt under s. 464.022(1), or those
1308 persons certified as nursing assistants pursuant to part II of
1309 chapter 464, may also perform all duties within the scope of
1310 their license or certification, as approved by the facility
1311 administrator and pursuant to this part.
1312 Section 19. Subsections (2), (3), and (4) of section
1313 429.256, Florida Statutes, are amended to read:
1314 429.256 Assistance with self-administration of medication.—
1315 (2) Residents who are capable of self-administering their
1316 own medications without assistance shall be encouraged and
1317 allowed to do so. However, an unlicensed person may, consistent
1318 with a dispensed prescription’s label or the package directions
1319 of an over-the-counter medication, assist a resident whose
1320 condition is medically stable with the self-administration of
1321 routine, regularly scheduled medications that are intended to be
1322 self-administered. Assistance with self-medication by an
1323 unlicensed person may occur only upon a documented request by,
1324 and the written informed consent of, a resident or the
1325 resident’s surrogate, guardian, or attorney in fact. To minimize
1326 the potential risk for improper dosage administration of
1327 prescription drugs, a facility may require standard-medication
1328 dispensing systems for residents’ prescriptions, as specified by
1329 rule. For the purposes of this section, self-administered
1330 medications include both legend and over-the-counter oral dosage
1331 forms, topical dosage forms and topical ophthalmic, otic, and
1332 nasal dosage forms including solutions, suspensions, sprays, and
1333 inhalers, and continuous positive airway pressure machines.
1334 (3) Assistance with self-administration of medication
1335 includes:
1336 (a) Taking the medication, in its previously dispensed,
1337 properly labeled container, from where it is stored, and
1338 bringing it to the resident.
1339 (b) In the presence of the resident, reading the label,
1340 opening the container, removing a prescribed amount of
1341 medication from the container, and closing the container.
1342 (c) Placing an oral dosage in the resident’s hand or
1343 placing the dosage in another container and helping the resident
1344 by lifting the container to his or her mouth.
1345 (d) Applying topical medications.
1346 (e) Returning the medication container to proper storage.
1347 (f) Keeping a record of when a resident receives assistance
1348 with self-administration under this section.
1349 (g) Assisting a resident in holding a nebulizer.
1350 (h) Using a glucometer to perform blood glucose checks.
1351 (i) Assisting with the putting on and taking off anti
1352 embolism stockings.
1353 (j) Assisting with applying and removing an oxygen cannula.
1354 (4) Assistance with self-administration does not include:
1355 (a) Mixing, compounding, converting, or calculating
1356 medication doses, except for measuring a prescribed amount of
1357 liquid medication or breaking a scored tablet or crushing a
1358 tablet as prescribed.
1359 (b) The preparation of syringes for injection or the
1360 administration of medications by any injectable route.
1361 (c) Administration of medications through intermittent
1362 positive pressure breathing machines or a nebulizer.
1363 (c)(d) Administration of medications by way of a tube
1364 inserted in a cavity of the body.
1365 (d)(e) Administration of parenteral preparations.
1366 (e)(f) Irrigations or debriding agents used in the
1367 treatment of a skin condition.
1368 (f)(g) Rectal, urethral, or vaginal preparations.
1369 (g)(h) Medications ordered by the physician or health care
1370 professional with prescriptive authority to be given “as
1371 needed,” unless the order is written with specific parameters
1372 that preclude independent judgment on the part of the unlicensed
1373 person, and at the request of a competent resident.
1374 (h)(i) Medications for which the time of administration,
1375 the amount, the strength of dosage, the method of
1376 administration, or the reason for administration requires
1377 judgment or discretion on the part of the unlicensed person.
1378 Section 20. Subsections (3), (7), (8), (9), (10), and (11)
1379 of section 429.26, Florida Statutes, are amended to read:
1380 429.26 Appropriateness of placements; examinations of
1381 residents.—
1382 (3) Persons licensed under part I of chapter 464 who are
1383 employed by or under contract with a facility shall, on a
1384 routine basis or at least monthly, perform a nursing assessment
1385 of the residents for whom they are providing nursing services
1386 ordered by a physician, except administration of medication, and
1387 shall document such assessment, including any significant change
1388 substantial changes in a resident’s status which may necessitate
1389 relocation to a nursing home, hospital, or specialized health
1390 care facility. Such records shall be maintained in the facility
1391 for inspection by the agency and shall be forwarded to the
1392 resident’s case manager, if applicable.
1393 (7) The facility must notify a licensed physician when a
1394 resident exhibits signs of dementia or cognitive impairment or
1395 has a change of condition in order to rule out the presence of
1396 an underlying physiological condition that may be contributing
1397 to such dementia or impairment. The notification must occur
1398 within 30 days after the acknowledgment of such signs by
1399 facility staff. If an underlying condition is determined to
1400 exist, the facility shall arrange, with the appropriate health
1401 care provider, the necessary care and services to treat the
1402 condition.
1403 (7)(8) The Department of Children and Family Services may
1404 require an examination for supplemental security income and
1405 optional state supplementation recipients residing in facilities
1406 at any time and shall provide the examination whenever a
1407 resident’s condition requires it. Any facility administrator;
1408 personnel of the agency, the department, or the Department of
1409 Children and Family Services; or long-term care ombudsman
1410 council member who believes a resident needs to be evaluated
1411 shall notify the resident’s case manager, who shall take
1412 appropriate action. A report of the examination findings shall
1413 be provided to the resident’s case manager and the facility
1414 administrator to help the administrator meet his or her
1415 responsibilities under subsection (1).
1416 (8)(9) A terminally ill resident who no longer meets the
1417 criteria for continued residency may remain in the facility if
1418 the arrangement is mutually agreeable to the resident and the
1419 administrator facility; additional care is rendered through a
1420 licensed hospice, and the resident is under the care of a
1421 physician who agrees that the physical needs of the resident are
1422 being met.
1423 (9)(10) Facilities licensed to provide extended congregate
1424 care services shall promote aging in place by determining
1425 appropriateness of continued residency based on a comprehensive
1426 review of the resident’s physical and functional status; the
1427 ability of the facility, family members, friends, or any other
1428 pertinent individuals or agencies to provide the care and
1429 services required; and documentation that a written service plan
1430 consistent with facility policy has been developed and
1431 implemented to ensure that the resident’s needs and preferences
1432 are addressed.
1433 (10)(11) A No resident who requires 24-hour nursing
1434 supervision, except for a resident who is an enrolled hospice
1435 patient pursuant to part IV of chapter 400, may not shall be
1436 retained in a licensed facility licensed under this part.
1437 Section 21. Section 429.27, Florida Statutes, is amended to
1438 read:
1439 429.27 Property and personal affairs of residents.—
1440 (1)(a) A resident shall be given the option of using his or
1441 her own belongings, as space permits; choosing his or her
1442 roommate; and, whenever possible, unless the resident is
1443 adjudicated incompetent or incapacitated under state law,
1444 managing his or her own affairs.
1445 (b) The admission of a resident to a facility and his or
1446 her presence therein does shall not give confer on the facility
1447 or its licensee, owner, administrator, employees, or
1448 representatives any authority to manage, use, or dispose of any
1449 property of the resident; nor shall such admission or presence
1450 give confer on any of such persons any authority or
1451 responsibility for the personal affairs of the resident, except
1452 that which may be necessary for the safe management of the
1453 facility or for the safety of the resident.
1454 (2) The licensee, A facility, or an owner, administrator,
1455 employee of an assisted living facility, or representative
1456 thereof, may not act as the guardian, trustee, or conservator
1457 for any resident of the assisted living facility or any of such
1458 resident’s property. A licensee, An owner, administrator, or
1459 staff member, or representative thereof, may not act as a
1460 competent resident’s payee for social security, veteran’s, or
1461 railroad benefits without the consent of the resident. Any
1462 facility whose licensee, owner, administrator, or staff, or
1463 representative thereof, serves as representative payee for any
1464 resident of the facility shall file a surety bond with the
1465 agency in an amount equal to twice the average monthly aggregate
1466 income or personal funds due to residents, or expendable for
1467 their account, which are received by a facility. Any facility
1468 whose licensee, owner, administrator, or staff, or a
1469 representative thereof, is granted power of attorney for any
1470 resident of the facility shall file a surety bond with the
1471 agency for each resident for whom such power of attorney is
1472 granted. The surety bond shall be in an amount equal to twice
1473 the average monthly income of the resident, plus the value of
1474 any resident’s property under the control of the attorney in
1475 fact. The bond shall be executed by the facility’s licensee,
1476 owner, administrator, or staff, or a representative thereof,
1477 facility as principal and a licensed surety company. The bond
1478 shall be conditioned upon the faithful compliance of the
1479 licensee, owner, administrator, or staff, or a representative
1480 thereof, of the facility with this section and shall run to the
1481 agency for the benefit of any resident who suffers a financial
1482 loss as a result of the misuse or misappropriation by a
1483 licensee, owner, administrator, or staff, or representative
1484 thereof, of the facility of funds held pursuant to this
1485 subsection. Any surety company that cancels or does not renew
1486 the bond of any licensee shall notify the agency in writing not
1487 less than 30 days in advance of such action, giving the reason
1488 for the cancellation or nonrenewal. Any facility’s licensee,
1489 facility owner, administrator, or staff, or representative
1490 thereof, who is granted power of attorney for any resident of
1491 the facility shall, on a monthly basis, be required to provide
1492 the resident a written statement of any transaction made on
1493 behalf of the resident pursuant to this subsection, and a copy
1494 of such statement given to the resident shall be retained in
1495 each resident’s file and available for agency inspection.
1496 (3) A facility’s administrator facility, upon mutual
1497 consent with the resident, shall provide for the safekeeping in
1498 the facility of personal effects, including funds not in excess
1499 of $500 and funds of the resident not in excess of $200 cash,
1500 and shall keep complete and accurate records of all such funds
1501 and personal effects received. If a resident is absent from a
1502 facility for 24 hours or more, the facility may provide for the
1503 safekeeping of the resident’s personal effects, including funds
1504 in excess of $500.
1505 (4) Any funds or other property belonging to or due to a
1506 resident, or expendable for his or her account, which is
1507 received by the administrator a facility shall be trust funds
1508 which shall be kept separate from the funds and property of the
1509 facility and other residents or shall be specifically credited
1510 to such resident. Such trust funds shall be used or otherwise
1511 expended only for the account of the resident. Upon written
1512 request, at least once every 3 months, unless upon order of a
1513 court of competent jurisdiction, the administrator facility
1514 shall furnish the resident and his or her guardian, trustee, or
1515 conservator, if any, a complete and verified statement of all
1516 funds and other property to which this subsection applies,
1517 detailing the amount and items received, together with their
1518 sources and disposition. In any event, the administrator
1519 facility shall furnish such statement annually and upon the
1520 discharge or transfer of a resident. Any governmental agency or
1521 private charitable agency contributing funds or other property
1522 to the account of a resident shall also be entitled to receive
1523 such statement annually and upon the discharge or transfer of
1524 the resident.
1525 (5) Any personal funds available to facility residents may
1526 be used by residents as they choose to obtain clothing, personal
1527 items, leisure activities, and other supplies and services for
1528 their personal use. An administrator A facility may not demand,
1529 require, or contract for payment of all or any part of the
1530 personal funds in satisfaction of the facility rate for supplies
1531 and services beyond that amount agreed to in writing and may not
1532 levy an additional charge to the individual or the account for
1533 any supplies or services that the facility has agreed by
1534 contract to provide as part of the standard monthly rate. Any
1535 service or supplies provided by the facility which are charged
1536 separately to the individual or the account may be provided only
1537 with the specific written consent of the individual, who shall
1538 be furnished in advance of the provision of the services or
1539 supplies with an itemized written statement to be attached to
1540 the contract setting forth the charges for the services or
1541 supplies.
1542 (6)(a) In addition to any damages or civil penalties to
1543 which a person is subject, any person who:
1544 1. Intentionally withholds a resident’s personal funds,
1545 personal property, or personal needs allowance, or who demands,
1546 beneficially receives, or contracts for payment of all or any
1547 part of a resident’s personal property or personal needs
1548 allowance in satisfaction of the facility rate for supplies and
1549 services; or
1550 2. Borrows from or pledges any personal funds of a
1551 resident, other than the amount agreed to by written contract
1552 under s. 429.24,
1553
1554 commits a misdemeanor of the first degree, punishable as
1555 provided in s. 775.082 or s. 775.083.
1556 (b) Any licensee, facility owner, administrator, or staff,
1557 or representative thereof, who is granted power of attorney for
1558 any resident of the facility and who misuses or misappropriates
1559 funds obtained through this power commits a felony of the third
1560 degree, punishable as provided in s. 775.082, s. 775.083, or s.
1561 775.084.
1562 (7) In the event of the death of a resident, a licensee
1563 shall return all refunds, funds, and property held in trust to
1564 the resident’s personal representative, if one has been
1565 appointed at the time the facility disburses such funds, and, if
1566 not, to the resident’s spouse or adult next of kin named in a
1567 beneficiary designation form provided by the licensee facility
1568 to the resident. If the resident has no spouse or adult next of
1569 kin or such person cannot be located, funds due the resident
1570 shall be placed in an interest-bearing account, and all property
1571 held in trust by the licensee facility shall be safeguarded
1572 until such time as the funds and property are disbursed pursuant
1573 to the Florida Probate Code. Such funds shall be kept separate
1574 from the funds and property of the facility and other residents
1575 of the facility. If the funds of the deceased resident are not
1576 disbursed pursuant to the Florida Probate Code within 2 years
1577 after the resident’s death, the funds shall be deposited in the
1578 Health Care Trust Fund administered by the agency.
1579 (8) The department may by rule clarify terms and specify
1580 procedures and documentation necessary to administer the
1581 provisions of this section relating to the proper management of
1582 residents’ funds and personal property and the execution of
1583 surety bonds.
1584 Section 22. Subsection (4) of section 429.275, Florida
1585 Statutes, is repealed.
1586 Section 23. Paragraph (k) of subsection (1) and subsections
1587 (3), (4), (5), (6), and (7) of section 429.28, Florida Statutes,
1588 are amended to read:
1589 429.28 Resident bill of rights.—
1590 (1) A No resident of a facility may not shall be deprived
1591 of any civil or legal rights, benefits, or privileges guaranteed
1592 by law, the Constitution of the State of Florida, or the
1593 Constitution of the United States as a resident of a facility.
1594 Every resident of a facility shall have the right to:
1595 (k) At least 30 45 days’ notice of relocation or
1596 termination of residency from the facility unless, for medical
1597 reasons, the resident is certified by a physician to require an
1598 emergency relocation to a facility providing a more skilled
1599 level of care or the resident engages in a pattern of conduct
1600 that is harmful or offensive to other residents. In the case of
1601 a resident who has been adjudicated mentally incapacitated, the
1602 guardian shall be given at least 30 45 days’ notice of a
1603 nonemergency relocation or residency termination. Reasons for
1604 relocation shall be set forth in writing. In order for a
1605 facility to terminate the residency of an individual without
1606 notice as provided herein, the facility shall show good cause in
1607 a court of competent jurisdiction.
1608 (3)(a) The agency shall conduct a survey to determine
1609 general compliance with facility standards and compliance with
1610 residents’ rights as a prerequisite to initial licensure or
1611 licensure renewal.
1612 (b) In order to determine whether the facility is
1613 adequately protecting residents’ rights, the biennial survey
1614 shall include private informal conversations with a sample of
1615 residents and consultation with the ombudsman council in the
1616 planning and service area in which the facility is located to
1617 discuss residents’ experiences within the facility.
1618 (c) During any calendar year in which no survey is
1619 conducted, the agency shall conduct at least one monitoring
1620 visit of each facility cited in the previous year for a class I
1621 or class II violation, or more than three uncorrected class III
1622 violations.
1623 (d) The agency may conduct periodic followup inspections as
1624 necessary to monitor the compliance of facilities with a history
1625 of any class I, class II, or class III violations that threaten
1626 the health, safety, or security of residents.
1627 (e) The agency may conduct complaint investigations as
1628 warranted to investigate any allegations of noncompliance with
1629 requirements required under this part or rules adopted under
1630 this part.
1631 (3)(4) The administrator shall ensure that facility shall
1632 not hamper or prevent residents may exercise from exercising
1633 their rights as specified in this section.
1634 (4)(5) A staff member No facility or employee of a facility
1635 may not serve notice upon a resident to leave the premises or
1636 take any other retaliatory action against any person who:
1637 (a) Exercises any right set forth in this section.
1638 (b) Appears as a witness in any hearing, inside or outside
1639 the facility.
1640 (c) Files a civil action alleging a violation of the
1641 provisions of this part or notifies a state attorney or the
1642 Attorney General of a possible violation of such provisions.
1643 (5)(6) An administrator may not terminate Any facility
1644 which terminates the residency of an individual who participated
1645 in activities specified in subsection (4) (5) shall show good
1646 cause in a court of competent jurisdiction.
1647 (6)(7) Any person who submits or reports a complaint
1648 concerning a suspected violation of the provisions of this part
1649 or concerning services and conditions in facilities, or who
1650 testifies in any administrative or judicial proceeding arising
1651 from such a complaint, shall have immunity from any civil or
1652 criminal liability therefor, unless such person has acted in bad
1653 faith or with malicious purpose or the court finds that there
1654 was a complete absence of a justiciable issue of either law or
1655 fact raised by the losing party.
1656 Section 24. Section 429.29, Florida Statutes, is amended to
1657 read:
1658 429.29 Civil actions to enforce rights.—
1659 (1) A Any person or resident who alleges negligence or a
1660 violation of whose rights as specified in this part has are
1661 violated shall have a cause of action against the licensee or
1662 its management company, as identified in the state application
1663 for licensing as an assisted living facility. However, the cause
1664 of action may not be asserted individually against an officer,
1665 director, owner, including an owner designated as having a
1666 controlling interest on the state application for licensing as
1667 an assisted living facility, or agent of a licensee or
1668 management company unless, following an evidentiary hearing, the
1669 court determines there is sufficient evidence in the record or
1670 proffered by the claimant which establishes a reasonable basis
1671 for finding that the person or entity breached, failed to
1672 perform, or acted outside the scope of duties as an officer,
1673 director, owner, or agent, and that the breach, failure to
1674 perform, or action outside the scope of duties is a legal cause
1675 of actual loss, injury, death, or damage to the resident.
1676 (2) The action may be brought by the resident or his or her
1677 guardian, or by a person or organization acting on behalf of a
1678 resident with the consent of the resident or his or her
1679 guardian, or by the personal representative of the estate of a
1680 deceased resident regardless of the cause of death.
1681 (3) If the action alleges a claim for the resident’s rights
1682 or for negligence which: that
1683 (a) Caused the death of the resident, the claimant shall be
1684 required to elect either survival damages pursuant to s. 46.021
1685 or wrongful death damages pursuant to s. 768.21. If the claimant
1686 elects damages for wrongful death, total noneconomic damages may
1687 not exceed $250,000, regardless of the number of claimants.
1688 (b) If the action alleges a claim for the resident’s rights
1689 or for negligence that Did not cause the death of the resident,
1690 the personal representative of the estate may recover damages
1691 for the negligence that caused injury to the resident.
1692 (4) The action may be brought in any court of competent
1693 jurisdiction to enforce such rights and to recover actual
1694 damages, and punitive damages for violation of the rights of a
1695 resident or negligence.
1696 (5) Any resident who prevails in seeking injunctive relief
1697 or a claim for an administrative remedy is entitled to recover
1698 the costs of the action and a reasonable attorney’s fee assessed
1699 against the defendant not to exceed $25,000. Fees shall be
1700 awarded solely for the injunctive or administrative relief and
1701 not for any claim or action for damages whether such claim or
1702 action is brought together with a request for an injunction or
1703 administrative relief or as a separate action, except as
1704 provided under s. 768.79 or the Florida Rules of Civil
1705 Procedure. Sections 429.29-429.298 provide the exclusive remedy
1706 for a cause of action for recovery of damages for the personal
1707 injury or death of a resident arising out of negligence or a
1708 violation of rights specified in s. 429.28. This section does
1709 not preclude theories of recovery not arising out of negligence
1710 or s. 429.28 which are available to a resident or to the agency.
1711 The provisions of chapter 766 do not apply to any cause of
1712 action brought under ss. 429.29-429.298.
1713 (6)(2) If the In any claim brought pursuant to this part
1714 alleges alleging a violation of resident’s rights or negligence
1715 causing injury to or the death of a resident, the claimant shall
1716 have the burden of proving, by a preponderance of the evidence,
1717 that:
1718 (a) The defendant owed a duty to the resident;
1719 (b) The defendant breached the duty to the resident;
1720 (c) The breach of the duty is a legal cause of loss,
1721 injury, death, or damage to the resident; and
1722 (d) The resident sustained loss, injury, death, or damage
1723 as a result of the breach.
1724
1725 Nothing in This part does not shall be interpreted to
1726 create strict liability. A violation of the rights set forth in
1727 s. 429.28 or in any other standard or guidelines specified in
1728 this part or in any applicable administrative standard or
1729 guidelines of this state or a federal regulatory agency shall be
1730 evidence of negligence but shall not be considered negligence
1731 per se.
1732 (7)(3) In any claim brought pursuant to this section, a
1733 licensee, person, or entity has shall have a duty to exercise
1734 reasonable care. Reasonable care is that degree of care which a
1735 reasonably careful licensee, person, or entity would use under
1736 like circumstances.
1737 (8)(4) In any claim for resident’s rights violation or
1738 negligence by a nurse licensed under part I of chapter 464, such
1739 nurse has a shall have the duty to exercise care consistent with
1740 the prevailing professional standard of care for a nurse. The
1741 prevailing professional standard of care for a nurse is shall be
1742 that level of care, skill, and treatment which, in light of all
1743 relevant surrounding circumstances, is recognized as acceptable
1744 and appropriate by reasonably prudent similar nurses.
1745 (9)(5) Discovery of financial information for the purpose
1746 of determining the value of punitive damages may not be had
1747 unless the plaintiff shows the court by proffer or evidence in
1748 the record that a reasonable basis exists to support a claim for
1749 punitive damages.
1750 (10)(6) In addition to any other standards for punitive
1751 damages, any award of punitive damages must be reasonable in
1752 light of the actual harm suffered by the resident and the
1753 egregiousness of the conduct that caused the actual harm to the
1754 resident.
1755 (11)(7) The resident or the resident’s legal representative
1756 shall serve a copy of any complaint alleging in whole or in part
1757 a violation of any rights specified in this part to the agency
1758 for Health Care Administration at the time of filing the initial
1759 complaint with the clerk of the court for the county in which
1760 the action is pursued. The requirement of Providing a copy of
1761 the complaint to the agency does not impair the resident’s legal
1762 rights or ability to seek relief for his or her claim.
1763 Section 25. Subsections (4) and (7) of section 429.293,
1764 Florida Statutes, are amended, present subsection (11) of that
1765 section is redesignated as subsection (12) and amended, and a
1766 new subsection (11) is added to that section, to read:
1767 429.293 Presuit notice; investigation; notification of
1768 violation of residents’ rights or alleged negligence; claims
1769 evaluation procedure; informal discovery; review; settlement
1770 offer; mediation.—
1771 (4) The notification of a violation of a resident’s rights
1772 or alleged negligence shall be served within the applicable
1773 statute of limitations period; however, during the 75-day
1774 period, the statute of limitations is tolled as to all
1775 prospective defendants. Upon written stipulation by the parties,
1776 the 75-day period may be extended and the statute of limitations
1777 is tolled during any such extension. Upon receiving written
1778 notice by certified mail, return receipt requested, of
1779 termination of negotiations in an extended period, the claimant
1780 shall have 30 60 days or the remainder of the period of the
1781 statute of limitations, whichever is greater, within which to
1782 file suit.
1783 (7) Informal discovery may be used by a party to obtain
1784 unsworn statements and the production of documents or things, as
1785 follows:
1786 (a) Unsworn statements.—Any party may require other parties
1787 to appear for the taking of an unsworn statement. Such
1788 statements may be used only for the purpose of claims evaluation
1789 and are not discoverable or admissible in any civil action for
1790 any purpose by any party. A party seeking to take the unsworn
1791 statement of any party must give reasonable notice in writing to
1792 all parties. The notice must state the time and place for taking
1793 the statement and the name and address of the party to be
1794 examined. Unless otherwise impractical, the examination of any
1795 party must be done at the same time by all other parties. Any
1796 party may be represented by counsel at the taking of an unsworn
1797 statement. An unsworn statement may be recorded electronically,
1798 stenographically, or on videotape. The taking of unsworn
1799 statements is subject to the provisions of the Florida Rules of
1800 Civil Procedure and may be terminated for abuses.
1801 (b) Documents or things.—Any party may request discovery of
1802 relevant documents or things relevant to evaluating the merits
1803 of the claim. The documents or things must be produced, at the
1804 expense of the requesting party, within 20 days after the date
1805 of receipt of the request. A party is required to produce
1806 relevant and discoverable documents or things within that
1807 party’s possession or control, if in good faith it can
1808 reasonably be done within the timeframe of the claims evaluation
1809 process.
1810 (11) An arbitration process as provided for in chapter 44
1811 may be used to resolve a claim filed under this section.
1812 (12)(11) Within 30 days after the claimant’s receipt of the
1813 defendant’s response to the claim, the parties or their
1814 designated representatives shall meet in mediation to discuss
1815 the issues of liability and damages in accordance with the
1816 mediation rules of practice and procedures adopted by the
1817 Supreme Court. Upon written stipulation of the parties, this 30
1818 day period may be extended and the statute of limitations is
1819 tolled during the mediation and any such extension. At the
1820 conclusion of mediation, the claimant shall have 60 days or the
1821 remainder of the period of the statute of limitations, whichever
1822 is greater, within which to file suit.
1823 Section 26. Section 429.294, Florida Statutes, is amended
1824 to read:
1825 429.294 Availability of facility records for investigation
1826 of resident’s rights violations and defenses; penalty.—
1827 (1) Unless expressly prohibited by a legally competent
1828 resident, an assisted living facility licensed under this part
1829 shall furnish to the spouse, guardian, surrogate, proxy, or
1830 attorney in fact, as provided in chapters 744 and 765, a copy of
1831 a resident’s records that are in the possession of the facility
1832 within:
1833 (a) Seven working days after receipt of a written request
1834 if the resident currently resides in the facility; or
1835 (b) Ten working days after receipt of a written request if
1836 the resident formerly resided in the facility.
1837
1838 Such records must include medical and psychiatric records
1839 and any records concerning the care and treatment of the
1840 resident performed by the facility, except progress notes and
1841 consultation report sections of a psychiatric nature. Copies of
1842 such records are not considered part of a deceased resident’s
1843 estate and may be made available before the administration of an
1844 estate, upon request, to the spouse, guardian, surrogate, proxy,
1845 or attorney in fact, as provided in chapters 744 and 765. A
1846 facility may charge a reasonable fee for the copying of a
1847 resident’s records. Such fee shall not exceed $1 per page for
1848 the first 25 pages and 25 cents per page for each additional
1849 page in excess of 25 pages. The facility shall further allow any
1850 such spouse, guardian, surrogate, proxy, or attorney in fact, as
1851 provided in chapters 744 and 765, to examine the original
1852 records in its possession, or microfilms or other suitable
1853 reproductions of the records, upon such reasonable terms as
1854 shall be imposed, to help ensure that the records are not
1855 damaged, destroyed, or altered.
1856 (2) A person may not obtain copies of a resident’s records
1857 under this section more often than once per month, except that a
1858 physician’s report in the a resident’s records may be obtained
1859 as often as necessary to effectively monitor the resident’s
1860 condition.
1861 (3)(1) Failure to provide complete copies of a resident’s
1862 records, including, but not limited to, all medical records and
1863 the resident’s chart, within the control or possession of the
1864 facility within 10 days, in accordance with the provisions of
1865 this section s. 400.145, shall constitute evidence of failure of
1866 that party to comply with good faith discovery requirements and
1867 shall waive the good faith certificate and presuit notice
1868 requirements under this part by the requesting party.
1869 (4)(2) A licensee may not No facility shall be held liable
1870 for any civil damages as a result of complying with this
1871 section.
1872 Section 27. Subsections (1), (2), and (3) of section
1873 429.297, Florida Statutes, are amended to read:
1874 429.297 Punitive damages; pleading; burden of proof.—
1875 (1) In any action for damages brought under this part, a no
1876 claim for punitive damages is not shall be permitted unless,
1877 based on admissible there is a reasonable showing by evidence in
1878 the record or proffered by the claimant, which would provide a
1879 reasonable basis for recovery of such damages is demonstrated
1880 upon applying the criteria set forth in this section. The
1881 defendant may proffer admissible evidence to refute the
1882 claimant’s proffer of evidence to recover punitive damages. The
1883 trial judge shall conduct an evidentiary hearing and weigh the
1884 admissible evidence proffered by the claimant and the defendant
1885 to ensure that there is a reasonable basis to believe that the
1886 claimant, at trial, will be able to demonstrate by clear and
1887 convincing evidence that the recovery of such damages is
1888 warranted. The claimant may move to amend her or his complaint
1889 to assert a claim for punitive damages as allowed by the rules
1890 of civil procedure. The rules of civil procedure shall be
1891 liberally construed so as to allow the claimant discovery of
1892 evidence which appears reasonably calculated to lead to
1893 admissible evidence on the issue of punitive damages. No
1894 Discovery of financial worth may not shall proceed until after
1895 the trial judge approves the pleading on concerning punitive
1896 damages is permitted.
1897 (2) A defendant, including the licensee or management
1898 company, against whom punitive damages is sought may be held
1899 liable for punitive damages only if the trier of fact, based on
1900 clear and convincing evidence, finds that a specific individual
1901 or corporate defendant actively and knowingly participated in
1902 intentional misconduct, or engaged in conduct that constituted
1903 gross negligence, and that conduct contributed to the loss,
1904 damages, or injury suffered by the claimant the defendant was
1905 personally guilty of intentional misconduct or gross negligence.
1906 As used in this section, the term:
1907 (a) “Intentional misconduct” means that the defendant
1908 against whom a claim for punitive damages is sought had actual
1909 knowledge of the wrongfulness of the conduct and the high
1910 probability that injury or damage to the claimant would result
1911 and, despite that knowledge, intentionally pursued that course
1912 of conduct, resulting in injury or damage.
1913 (b) “Gross negligence” means that the defendant’s conduct
1914 was so reckless or wanting in care that it constituted a
1915 conscious disregard or indifference to the life, safety, or
1916 rights of persons exposed to such conduct.
1917 (3) In the case of vicarious liability of an employer,
1918 principal, corporation, or other legal entity, punitive damages
1919 may not be imposed for the conduct of an identified employee or
1920 agent unless only if the conduct of the employee or agent meets
1921 the criteria specified in subsection (2) and officers,
1922 directors, or managers of the actual employer corporation or
1923 legal entity condoned, ratified, or consented to the specific
1924 conduct as alleged by the claimant in subsection (2).:
1925 (a) The employer, principal, corporation, or other legal
1926 entity actively and knowingly participated in such conduct;
1927 (b) The officers, directors, or managers of the employer,
1928 principal, corporation, or other legal entity condoned,
1929 ratified, or consented to such conduct; or
1930 (c) The employer, principal, corporation, or other legal
1931 entity engaged in conduct that constituted gross negligence and
1932 that contributed to the loss, damages, or injury suffered by the
1933 claimant.
1934 Section 28. Subsections (1) and (4) of section 429.298,
1935 Florida Statutes, are amended to read:
1936 429.298 Punitive damages; limitation.—
1937 (1)(a) Except as provided in paragraphs (b) and (c), An
1938 award of punitive damages may not exceed the greater of:
1939 1. Three times the amount of compensatory damages awarded
1940 to each claimant entitled thereto, consistent with the remaining
1941 provisions of this section; or
1942 2. The sum of $250,000 $1 million.
1943 (b) Where the fact finder determines that the wrongful
1944 conduct proven under this section was motivated primarily by
1945 unreasonable financial gain and determines that the unreasonably
1946 dangerous nature of the conduct, together with the high
1947 likelihood of injury resulting from the conduct, was actually
1948 known by the managing agent, director, officer, or other person
1949 responsible for making policy decisions on behalf of the
1950 defendant, it may award an amount of punitive damages not to
1951 exceed the greater of:
1952 1. Four times the amount of compensatory damages awarded to
1953 each claimant entitled thereto, consistent with the remaining
1954 provisions of this section; or
1955 2. The sum of $4 million.
1956 (c) Where the fact finder determines that at the time of
1957 injury the defendant had a specific intent to harm the claimant
1958 and determines that the defendant’s conduct did in fact harm the
1959 claimant, there shall be no cap on punitive damages.
1960 (b)(d) This subsection is not intended to prohibit an
1961 appropriate court from exercising its jurisdiction under s.
1962 768.74 in determining the reasonableness of an award of punitive
1963 damages that is less than three times the amount of compensatory
1964 damages.
1965 (e) In any case in which the findings of fact support an
1966 award of punitive damages pursuant to paragraph (b) or paragraph
1967 (c), the clerk of the court shall refer the case to the
1968 appropriate law enforcement agencies, to the state attorney in
1969 the circuit where the long-term care facility that is the
1970 subject of the underlying civil cause of action is located, and,
1971 for multijurisdictional facility owners, to the Office of the
1972 Statewide Prosecutor; and such agencies, state attorney, or
1973 Office of the Statewide Prosecutor shall initiate a criminal
1974 investigation into the conduct giving rise to the award of
1975 punitive damages. All findings by the trier of fact which
1976 support an award of punitive damages under this paragraph shall
1977 be admissible as evidence in any subsequent civil or criminal
1978 proceeding relating to the acts giving rise to the award of
1979 punitive damages under this paragraph.
1980 (4) Notwithstanding any other law to the contrary, the
1981 amount of punitive damages awarded pursuant to this section
1982 shall be equally divided between the claimant and the Quality of
1983 Long-Term Care Facility Improvement Trust Fund, in accordance
1984 with the following provisions:
1985 (a) The clerk of the court shall transmit a copy of the
1986 jury verdict to the Chief Financial Officer by certified mail.
1987 In the final judgment, the court shall order the percentages of
1988 the award, payable as provided herein.
1989 (b) A settlement agreement entered into between the
1990 original parties to the action after a verdict has been returned
1991 must provide a proportionate share payable to the Quality of
1992 Long-Term Care Facility Improvement Trust Fund specified herein.
1993 For purposes of this paragraph, the a proportionate share
1994 payable to the Quality of Long-Term Care Facility Improvement
1995 Trust Fund must be is a 75 percent 50-percent share of that
1996 percentage of the settlement amount which the punitive damages
1997 portion of the verdict bore to the total of the compensatory and
1998 punitive damages in the verdict.
1999 (c) The Department of Financial Services shall collect or
2000 cause to be collected all payments due the state under this
2001 section. Such payments are made to the Chief Financial Officer
2002 and deposited in the appropriate fund specified in this
2003 subsection.
2004 (d) If the full amount of punitive damages awarded cannot
2005 be collected, the claimant and the other recipient designated
2006 pursuant to this subsection are each entitled to a proportionate
2007 share of the punitive damages collected.
2008 Section 29. Paragraphs (a), (d), (h), (i), (j), and (l) of
2009 subsection (1) and subsection (5) of section 429.41, Florida
2010 Statutes, are amended to read:
2011 429.41 Rules establishing standards.—
2012 (1) It is the intent of the Legislature that rules
2013 published and enforced pursuant to this section shall include
2014 criteria by which a reasonable and consistent quality of
2015 resident care and quality of life may be ensured and the results
2016 of such resident care may be demonstrated. Such rules shall also
2017 ensure a safe and sanitary environment that is residential and
2018 noninstitutional in design or nature. It is further intended
2019 that reasonable efforts be made to accommodate the needs and
2020 preferences of residents to enhance the quality of life in a
2021 facility. The agency, in consultation with the department, may
2022 adopt rules to administer the requirements of part II of chapter
2023 408. In order to provide safe and sanitary facilities and the
2024 highest quality of resident care accommodating the needs and
2025 preferences of residents, the department, in consultation with
2026 the agency, the Department of Children and Family Services, and
2027 the Department of Health, shall adopt rules, policies, and
2028 procedures to administer this part, which must include
2029 reasonable and fair minimum standards in relation to:
2030 (a) The requirements for and maintenance of facilities, not
2031 in conflict with the provisions of chapter 553, relating to
2032 plumbing, heating, cooling, lighting, ventilation, living space,
2033 and other housing conditions, which will ensure the health,
2034 safety, and comfort of residents and protection from fire
2035 hazard, including adequate provisions for fire alarm and other
2036 fire protection suitable to the size of the structure. Uniform
2037 firesafety standards shall be established and enforced by the
2038 State Fire Marshal in cooperation with the agency, the
2039 department, and the Department of Health.
2040 1. Evacuation capability determination.—
2041 a. The provisions of the National Fire Protection
2042 Association, NFPA 101A, Chapter 5, 1995 edition, shall be used
2043 for determining the ability of the residents, with or without
2044 staff assistance, to relocate from or within a licensed facility
2045 to a point of safety as provided in the fire codes adopted
2046 herein. An evacuation capability evaluation for initial
2047 licensure shall be conducted within 6 months after the date of
2048 licensure. For existing licensed facilities that are not
2049 equipped with an automatic fire sprinkler system, the
2050 administrator shall evaluate the evacuation capability of
2051 residents at least annually. The evacuation capability
2052 evaluation for each facility not equipped with an automatic fire
2053 sprinkler system shall be validated, without liability, by the
2054 State Fire Marshal, by the local fire marshal, or by the local
2055 authority having jurisdiction over firesafety, before the
2056 license renewal date. If the State Fire Marshal, local fire
2057 marshal, or local authority having jurisdiction over firesafety
2058 has reason to believe that the evacuation capability of a
2059 facility as reported by the administrator may have changed, it
2060 may, with assistance from the facility administrator, reevaluate
2061 the evacuation capability through timed exiting drills.
2062 Translation of timed fire exiting drills to evacuation
2063 capability may be determined:
2064 (I) Three minutes or less: prompt.
2065 (II) More than 3 minutes, but not more than 13 minutes:
2066 slow.
2067 (III) More than 13 minutes: impractical.
2068 b. The Office of the State Fire Marshal shall provide or
2069 cause the provision of training and education on the proper
2070 application of Chapter 5, NFPA 101A, 1995 edition, to its
2071 employees, to staff of the Agency for Health Care Administration
2072 who are responsible for regulating facilities under this part,
2073 and to local governmental inspectors. The Office of the State
2074 Fire Marshal shall provide or cause the provision of this
2075 training within its existing budget, but may charge a fee for
2076 this training to offset its costs. The initial training must be
2077 delivered within 6 months after July 1, 1995, and as needed
2078 thereafter.
2079 c. The Office of the State Fire Marshal, in cooperation
2080 with provider associations, shall provide or cause the provision
2081 of a training program designed to inform facility operators on
2082 how to properly review bid documents relating to the
2083 installation of automatic fire sprinklers. The Office of the
2084 State Fire Marshal shall provide or cause the provision of this
2085 training within its existing budget, but may charge a fee for
2086 this training to offset its costs. The initial training must be
2087 delivered within 6 months after July 1, 1995, and as needed
2088 thereafter.
2089 d. The administrator of a licensed facility shall sign an
2090 affidavit verifying the number of residents occupying the
2091 facility at the time of the evacuation capability evaluation.
2092 2. Firesafety requirements.—
2093 a. Except for the special applications provided herein,
2094 effective January 1, 1996, the provisions of the National Fire
2095 Protection Association, Life Safety Code, NFPA 101, 1994
2096 edition, Chapter 22 for new facilities and Chapter 23 for
2097 existing facilities shall be the uniform fire code applied by
2098 the State Fire Marshal for assisted living facilities, pursuant
2099 to s. 633.022.
2100 b. Any new facility, regardless of size, that applies for a
2101 license on or after January 1, 1996, must be equipped with an
2102 automatic fire sprinkler system. The exceptions as provided in
2103 s. 22-2.3.5.1, NFPA 101, 1994 edition, as adopted herein, apply
2104 to any new facility housing eight or fewer residents. On July 1,
2105 1995, local governmental entities responsible for the issuance
2106 of permits for construction shall inform, without liability, any
2107 facility whose permit for construction is obtained prior to
2108 January 1, 1996, of this automatic fire sprinkler requirement.
2109 As used in this part, the term “a new facility” does not mean an
2110 existing facility that has undergone change of ownership.
2111 c. Notwithstanding any provision of s. 633.022 or of the
2112 National Fire Protection Association, NFPA 101A, Chapter 5, 1995
2113 edition, to the contrary, any existing facility housing eight or
2114 fewer residents is not required to install an automatic fire
2115 sprinkler system, nor to comply with any other requirement in
2116 Chapter 23, NFPA 101, 1994 edition, that exceeds the firesafety
2117 requirements of NFPA 101, 1988 edition, that applies to this
2118 size facility, unless the facility has been classified as
2119 impractical to evacuate. Any existing facility housing eight or
2120 fewer residents that is classified as impractical to evacuate
2121 must install an automatic fire sprinkler system within the
2122 timeframes granted in this section.
2123 d. Any existing facility that is required to install an
2124 automatic fire sprinkler system under this paragraph need not
2125 meet other firesafety requirements of Chapter 23, NFPA 101, 1994
2126 edition, which exceed the provisions of NFPA 101, 1988 edition.
2127 The mandate contained in this paragraph which requires certain
2128 facilities to install an automatic fire sprinkler system
2129 supersedes any other requirement.
2130 e. This paragraph does not supersede the exceptions granted
2131 in NFPA 101, 1988 edition or 1994 edition.
2132 f. This paragraph does not exempt a facility facilities
2133 from other firesafety provisions adopted under s. 633.022 and
2134 local building code requirements in effect before July 1, 1995.
2135 g. A local government may charge fees only in an amount not
2136 to exceed the actual expenses incurred by local government
2137 relating to the installation and maintenance of an automatic
2138 fire sprinkler system in an existing and properly licensed
2139 assisted living facility structure as of January 1, 1996.
2140 h. If a licensed facility undergoes major reconstruction or
2141 addition to an existing building on or after January 1, 1996,
2142 the entire building must be equipped with an automatic fire
2143 sprinkler system. Major reconstruction of a building means
2144 repair or restoration that costs in excess of 50 percent of the
2145 value of the building as reported on the tax rolls, excluding
2146 land, before reconstruction. Multiple reconstruction projects
2147 within a 5-year period the total costs of which exceed 50
2148 percent of the initial value of the building at the time the
2149 first reconstruction project was permitted are to be considered
2150 as major reconstruction. Application for a permit for an
2151 automatic fire sprinkler system is required upon application for
2152 a permit for a reconstruction project that creates costs that go
2153 over the 50 percent 50-percent threshold.
2154 i. Any facility licensed before January 1, 1996, that is
2155 required to install an automatic fire sprinkler system shall
2156 ensure that the installation is completed within the following
2157 timeframes based upon evacuation capability of the facility as
2158 determined under subparagraph 1.:
2159 (I) Impractical evacuation capability, 24 months.
2160 (II) Slow evacuation capability, 48 months.
2161 (III) Prompt evacuation capability, 60 months.
2162
2163 The beginning date from which the deadline for the
2164 automatic fire sprinkler installation requirement must be
2165 calculated is upon receipt of written notice from the local fire
2166 official that an automatic fire sprinkler system must be
2167 installed. The local fire official shall send a copy of the
2168 document indicating the requirement of a fire sprinkler system
2169 to the Agency for Health Care Administration.
2170 j. It is recognized that the installation of an automatic
2171 fire sprinkler system may create financial hardship for some
2172 facilities. The appropriate local fire official shall, without
2173 liability, grant two 1-year extensions to the timeframes for
2174 installation established herein, if an automatic fire sprinkler
2175 installation cost estimate and proof of denial from two
2176 financial institutions for a construction loan to install the
2177 automatic fire sprinkler system are submitted. However, for any
2178 facility with a class I or class II, or a history of uncorrected
2179 class III, firesafety deficiencies, an extension must not be
2180 granted. The local fire official shall send a copy of the
2181 document granting the time extension to the Agency for Health
2182 Care Administration.
2183 k. A facility owner whose facility is required to be
2184 equipped with an automatic fire sprinkler system under Chapter
2185 23, NFPA 101, 1994 edition, as adopted herein, must disclose to
2186 any potential buyer of the facility that an installation of an
2187 automatic fire sprinkler requirement exists. The sale of the
2188 facility does not alter the timeframe for the installation of
2189 the automatic fire sprinkler system.
2190 l. An existing facility facilities required to install an
2191 automatic fire sprinkler system as a result of construction-type
2192 restrictions in Chapter 23, NFPA 101, 1994 edition, as adopted
2193 herein, or evacuation capability requirements shall be notified
2194 by the local fire official in writing of the automatic fire
2195 sprinkler requirement, as well as the appropriate date for final
2196 compliance as provided in this subparagraph. The local fire
2197 official shall send a copy of the document to the Agency for
2198 Health Care Administration.
2199 m. Except in cases of life-threatening fire hazards, if an
2200 existing facility experiences a change in the evacuation
2201 capability, or if the local authority having jurisdiction
2202 identifies a construction-type restriction, such that an
2203 automatic fire sprinkler system is required, it shall be
2204 afforded time for installation as provided in this subparagraph.
2205
2206 Facilities that are fully sprinkled and in compliance with
2207 other firesafety standards are not required to conduct more than
2208 one of the required fire drills between the hours of 11 p.m. and
2209 7 a.m., per year. In lieu of the remaining drills, staff
2210 responsible for residents during such hours may be required to
2211 participate in a mock drill that includes a review of evacuation
2212 procedures. Such standards must be included or referenced in the
2213 rules adopted by the State Fire Marshal. Pursuant to s.
2214 633.022(1)(b), the State Fire Marshal is the final
2215 administrative authority for firesafety standards established
2216 and enforced pursuant to this section. All licensed facilities
2217 must have an annual fire inspection conducted by the local fire
2218 marshal or authority having jurisdiction.
2219 3. Resident elopement requirements.—Facilities are required
2220 to conduct a minimum of two resident elopement prevention and
2221 response drills per year. All administrators and direct care
2222 staff must participate in the drills which shall include a
2223 review of procedures to address resident elopement. Facilities
2224 must document the implementation of the drills and ensure that
2225 the drills are conducted in a manner consistent with the
2226 facility’s resident elopement policies and procedures.
2227 (d) All sanitary conditions within the facility and its
2228 surroundings which will ensure the health and comfort of
2229 residents. To ensure that inspections are not duplicative, the
2230 rules must clearly delineate the responsibilities of the agency
2231 regarding agency’s licensure and survey inspections staff, the
2232 county health departments regarding food safety and sanitary
2233 inspections, and the local fire marshal regarding firesafety
2234 inspections authority having jurisdiction over firesafety and
2235 ensure that inspections are not duplicative. The agency may
2236 collect fees for food service inspections conducted by the
2237 county health departments and transfer such fees to the
2238 Department of Health.
2239 (h) The care and maintenance of residents, which must
2240 include, but is not limited to:
2241 1. The supervision of residents;
2242 2. The provision of personal services;
2243 3. The provision of, or arrangement for, social and leisure
2244 activities;
2245 4. The arrangement for appointments and transportation to
2246 appropriate medical, dental, nursing, or mental health services,
2247 as needed by residents;
2248 5. The management of medication;
2249 6. The food service nutritional needs of residents; and
2250 7. Resident records.; and
2251 8. Internal risk management and quality assurance.
2252 (i) Facilities holding an a limited nursing, extended
2253 congregate care, or limited mental health license.
2254 (j) The establishment of specific criteria to define
2255 appropriateness of resident admission and continued residency in
2256 a facility holding a standard, limited nursing, extended
2257 congregate care, and limited mental health license.
2258 (l) The establishment of specific policies and procedures
2259 on resident elopement. Facilities shall conduct a minimum of two
2260 resident elopement drills each year. All administrators and
2261 direct care staff shall participate in the drills. Facilities
2262 shall document the drills.
2263 (5) Beginning January 1, 2012, the agency shall may use an
2264 abbreviated biennial standard licensure inspection that consists
2265 of a review of key quality-of-care standards in lieu of a full
2266 inspection in a facility that has a good record of past
2267 performance. However, a full inspection must be conducted in a
2268 facility that has a history of class I or class II violations,
2269 uncorrected class III violations, confirmed ombudsman council
2270 complaints, or confirmed licensure complaints, within the
2271 previous licensure period immediately preceding the inspection
2272 or if a potentially serious problem is identified during the
2273 abbreviated inspection. The agency, in consultation with the
2274 department, shall develop, maintain, and update the key quality
2275 of-care standards with input from the State Long-Term Care
2276 Ombudsman Council and representatives of associations and
2277 organizations representing assisted living facilities provider
2278 groups for incorporation into its rules.
2279 Section 30. Section 429.42, Florida Statutes, is amended to
2280 read:
2281 429.42 Pharmacy and dietary services.—
2282 (1) Any assisted living facility in which the agency has
2283 documented a class I or class II violation deficiency or
2284 uncorrected class III violations deficiencies regarding
2285 medicinal drugs or over-the-counter preparations, including
2286 their storage, use, delivery, or administration, or dietary
2287 services, or both, during a biennial survey or a monitoring
2288 visit or an investigation in response to a complaint, shall, in
2289 addition to or as an alternative to any penalties imposed under
2290 s. 429.19, be required to employ the consultant services of a
2291 licensed pharmacist, a licensed registered nurse, or a
2292 registered or licensed dietitian, as applicable. The consultant
2293 shall, at a minimum, provide onsite quarterly consultation until
2294 the inspection team from the agency determines that such
2295 consultation services are no longer required.
2296 (2) A corrective action plan for deficiencies related to
2297 assistance with the self-administration of medication or the
2298 administration of medication must be developed and implemented
2299 by the facility within 48 hours after notification of such
2300 deficiency, or sooner if the deficiency is determined by the
2301 agency to be life-threatening.
2302 (3) The agency shall employ at least two pharmacists
2303 licensed pursuant to chapter 465 among its personnel who
2304 biennially inspect assisted living facilities licensed under
2305 this part, to participate in biennial inspections or consult
2306 with the agency regarding deficiencies relating to medicinal
2307 drugs or over-the-counter preparations.
2308 (2)(4) The department may by rule establish procedures and
2309 specify documentation as necessary to implement this section.
2310 Section 31. Section 429.445, Florida Statutes, is amended
2311 to read:
2312 429.445 Compliance with local zoning requirements.—No
2313 facility licensed under this part may commence any construction
2314 which will expand the size of the existing structure unless the
2315 licensee first submits to the agency proof that such
2316 construction will be in compliance with applicable local zoning
2317 requirements. Facilities with a licensed capacity of less than
2318 15 persons shall comply with the provisions of chapter 419.
2319 Section 32. Section 429.47, Florida Statutes, is amended to
2320 read:
2321 429.47 Prohibited acts; penalties for violation.—
2322 (1) While an assisted living a facility is under
2323 construction or is seeking licensure, the owner may advertise to
2324 the public prior to obtaining a license. Facilities that are
2325 certified under chapter 651 shall comply with the advertising
2326 provisions of s. 651.095 rather than those provided for in this
2327 subsection.
2328 (2) A freestanding facility shall not advertise or imply
2329 that any part of it is a nursing home. For the purpose of this
2330 subsection, “freestanding facility” means a facility that is not
2331 operated in conjunction with a nursing home to which residents
2332 of the facility are given priority when nursing care is
2333 required. A person who violates this subsection is subject to
2334 fine as specified in s. 429.19.
2335 (2)(3) Any facility that which is affiliated with any
2336 religious organization or which has a name implying religious
2337 affiliation shall include in its advertising whether or not it
2338 is affiliated with any religious organization and, if so, which
2339 organization.
2340 (3)(4) A facility licensed under this part which is not
2341 part of a facility authorized under chapter 651 shall include
2342 the facility’s license number as given by the agency in all
2343 advertising. A company or person owning more than one facility
2344 shall include at least one license number per advertisement. All
2345 advertising shall include the term “assisted living facility”
2346 before the license number.
2347 Section 33. Subsection (1) of section 429.49, Florida
2348 Statutes, is amended to read:
2349 429.49 Resident records; penalties for alteration.—
2350 (1) Any person who fraudulently alters, defaces, or
2351 falsifies any medical record or any resident’s other record of
2352 an assisted living facility, or causes or procures any such
2353 offense to be committed, commits a misdemeanor of the second
2354 degree, punishable as provided in s. 775.082 or s. 775.083.
2355 Section 34. Subsections (3), (5), and (8) of section
2356 429.52, Florida Statutes, are amended, present subsection (11)
2357 of that section is redesignated as subsection (12), and a new
2358 subsection (11) is added to that section, read:
2359 429.52 Staff training and educational programs; core
2360 educational requirement.—
2361 (3) Effective January 1, 2004, a new facility administrator
2362 must complete the required training and education, including the
2363 competency test, within a reasonable time after being employed
2364 as an administrator, as determined by the department. Failure to
2365 do so is a violation of this part and subjects the violator to
2366 an administrative fine as prescribed in s. 429.19.
2367 Administrators licensed in accordance with part II of chapter
2368 468 are exempt from this requirement. Other licensed
2369 professionals may be exempted, as determined by the department
2370 by rule.
2371 (5) Staff involved with the management of medications and
2372 assisting with the self-administration of medications under s.
2373 429.256 must complete a minimum of 4 additional hours of
2374 training provided by a registered nurse, licensed pharmacist, or
2375 department staff and must complete 2 hours of continuing
2376 education training annually. The department shall establish by
2377 rule the minimum requirements of this additional training.
2378 (8) The department shall adopt rules related to these
2379 training requirements, the competency test, necessary
2380 procedures, and competency test fees and shall adopt or contract
2381 with another entity to develop a curriculum, which shall be used
2382 as the minimum core training requirements. The department shall
2383 consult with representatives of stakeholder associations,
2384 organizations representing assisted living facilities, and
2385 agencies in the development of the curriculum.
2386 (11) A training provider certified by the department must
2387 continue to meet continuing education requirements and other
2388 standards as set forth in rules adopted by the department. A
2389 training provider or trainee may be sanctioned pursuant to s.
2390 430.081 for failing to comply with the standards set forth in
2391 the rules.
2392 Section 35. Subsections (1) and (2) of section 429.53,
2393 Florida Statutes, are amended to read:
2394 429.53 Consultation by the agency.—
2395 (1) The area offices of licensure and certification of the
2396 agency shall provide consultation to the following upon request:
2397 (a) A licensee of a facility.
2398 (b) A person interested in obtaining a license to operate a
2399 facility under this part.
2400 (2) As used in this section, “consultation” includes:
2401 (a) An explanation of the requirements of this part and
2402 rules adopted pursuant thereto;
2403 (b) An explanation of the license application and renewal
2404 procedures; and
2405 (c) The provision of a checklist of general local and state
2406 approvals required prior to constructing or developing a
2407 facility and a listing of the types of agencies responsible for
2408 such approvals;
2409 (d) An explanation of benefits and financial assistance
2410 available to a recipient of supplemental security income
2411 residing in a facility;
2412 (c)(e) Any other information which the agency deems
2413 necessary to promote compliance with the requirements of this
2414 part.; and
2415 (f) A preconstruction review of a facility to ensure
2416 compliance with agency rules and this part.
2417 Section 36. Section 429.54, Florida Statutes, is repealed.
2418 Section 37. Paragraph (a) of subsection (1) and subsections
2419 (5) and (6) of section 429.71, Florida Statutes, are amended to
2420 read:
2421 429.71 Classification of deficiencies; administrative
2422 fines.—
2423 (1) In addition to the requirements of part II of chapter
2424 408 and in addition to any other liability or penalty provided
2425 by law, the agency may impose an administrative fine on a
2426 provider according to the following classification:
2427 (a) Class I violations are those conditions or practices
2428 related to the operation and maintenance of an adult family-care
2429 home or to the care of residents which the agency determines
2430 present an imminent danger to the residents or guests of the
2431 adult family-care home facility or a substantial probability
2432 that death or serious physical or emotional harm would result
2433 therefrom. The condition or practice that constitutes a class I
2434 violation must be abated or eliminated within 24 hours, unless a
2435 fixed period, as determined by the agency, is required for
2436 correction. A class I violation deficiency is subject to an
2437 administrative fine in an amount not less than $500 and not
2438 exceeding $1,000 for each violation. A fine may be levied
2439 notwithstanding the correction of the violation deficiency.
2440 (5) As an alternative to or in conjunction with an
2441 administrative action against a provider, the agency may request
2442 a plan of corrective action that demonstrates a good faith
2443 effort to remedy each violation by a specific date, subject to
2444 the approval of the agency.
2445 (5)(6) The department shall set forth, by rule, notice
2446 requirements and procedures for correction of violations
2447 deficiencies.
2448 Section 38. Subsection (3) is added to section 429.81,
2449 Florida Statutes, to read:
2450 429.81 Residency agreements.—
2451 (3) Each residency agreement must specify that the resident
2452 must give the provider a 30 days’ written notice of intent to
2453 terminate his or her residency from the adult family-care home.
2454 Section 39. Section 430.081, Florida Statutes, is created
2455 to read:
2456 430.081 Sanctioning of training providers and trainees.—The
2457 Department of Elderly Affairs may sanction training providers
2458 and trainees for infractions involving any required training
2459 that the department has the authority to regulate under chapter
2460 400, chapter 429, or chapter 430 in order to ensure that such
2461 training providers and trainees satisfy specific qualification
2462 requirements and adhere to training curricula that is approved
2463 by the department. Training infractions include, but are not
2464 limited to, falsification of training records, falsification of
2465 training certificates, falsification of a training provider’s
2466 qualifications, failure to adhere to the required number of
2467 training hours, failure to use the required curriculum, failure
2468 to maintain the continuing education for the training provider’s
2469 recertification, failure to obtain reapproval of a curriculum
2470 when required, providing false or inaccurate information,
2471 misrepresentation of the required materials, and use of a false
2472 identification as a training provider or trainee. Sanctions may
2473 be progressive in nature and may consist of corrective action
2474 measures; suspension or termination from participation as an
2475 approved training provider or trainee, including sitting for any
2476 required examination; and administrative fines not to exceed
2477 $1,000 per incident. One or more sanctions may be levied per
2478 incident.
2479 Section 40. Paragraph (j) is added to subsection (3) of
2480 section 817.505, Florida Statutes, to read:
2481 817.505 Patient brokering prohibited; exceptions;
2482 penalties.—
2483 (3) This section shall not apply to:
2484 (j) Any payments by an assisted living facility, as defined
2485 in s. 429.02, which are permitted under s. 429.195(3).
2486 Section 41. Licensure fees adjusted by consumer price index
2487 increases prior to this act are not intended to be reset by this
2488 act and may continue to accrue as authorized in law.
2489 Section 42. This act shall take effect July 1, 2011.