Florida Senate - 2013                                    SB 1638
       
       
       
       By Senator Diaz de la Portilla
       
       
       
       
       40-00845-13                                           20131638__
    1                        A bill to be entitled                      
    2         An act relating to assisted living facilities;
    3         amending s. 429.26, F.S.; providing that the owner or
    4         administrator of a facility is responsible for
    5         arranging medical evaluations and reevaluations of
    6         individuals admitted to or residing in the facility to
    7         assess appropriateness of admission or continued
    8         residence; requiring that the medical examination be
    9         conducted by a physician, physician assistant, or
   10         nurse practitioner and that the subsequent report be
   11         submitted within a specified timeframe; requiring the
   12         medical examination report to be recorded on a
   13         specified form provided by the Agency for Health Care
   14         Administration; providing immunity from liability for
   15         owners and administrators under certain circumstances;
   16         amending s. 429.29, F.S.; providing that a cause of
   17         action does not accrue against an employee or agent of
   18         a facility unless the employee or agent has been found
   19         personally guilty of a criminal offense that
   20         constitutes abuse, neglect, or exploitation; providing
   21         an effective date.
   22  
   23  Be It Enacted by the Legislature of the State of Florida:
   24  
   25         Section 1. Subsections (1) and (4) of section 429.26,
   26  Florida Statutes, are amended to read:
   27         429.26 Appropriateness of placements; examinations of
   28  residents.—
   29         (1) The owner or administrator of a facility is responsible
   30  for arranging a medical evaluation to determine determining the
   31  appropriateness of admission of an individual to the facility
   32  and for arranging a medical reevaluation at least annually or
   33  when a significant change in condition is observed and reported
   34  to the administrator regarding determining the continued
   35  appropriateness of residence of an individual in the facility. A
   36  determination shall be based upon an assessment of the
   37  strengths, needs, and preferences of the resident, the care and
   38  services offered or arranged for by the facility in accordance
   39  with facility policy, and any limitations in law or rule related
   40  to admission criteria or continued residency for the type of
   41  license held by the facility under this part. The owner or
   42  administrator shall base his or her determination of the initial
   43  and continuing appropriateness of placement of a resident in a
   44  facility on a medical examination report, conducted within 60
   45  days prior to admission, by any of the following licensed health
   46  care providers: a physician, physician assistant, or nurse
   47  practitioner. A resident may not be moved from one facility to
   48  another without consultation with and agreement from the
   49  resident or, if applicable, the resident’s representative or
   50  designee or the resident’s family, guardian, surrogate, or
   51  attorney in fact. In the case of a resident who has been placed
   52  by the department or the Department of Children and Family
   53  Services, the administrator must notify the appropriate contact
   54  person in the applicable department.
   55         (4) If possible, each resident shall have been examined by
   56  a licensed physician, a licensed physician assistant, or a
   57  licensed nurse practitioner within 60 days before admission to
   58  the facility. The signed and completed medical examination
   59  report, which is recorded on AHCA Form 1823, the Resident Health
   60  Assessment for Assisted Living Facilities, as required by Rule
   61  58A-5.0181(2)(b), Florida Administrative Code, shall be
   62  submitted to the owner or administrator of the facility who
   63  shall use the information contained therein to assist in the
   64  determination of the appropriateness of the resident’s admission
   65  and continued stay in the facility. The owner or administrator
   66  is required to ensure that the AHCA Form 1823 is completed
   67  thoroughly. An owner or administrator who obtains this medical
   68  evaluation and verifies its completeness is not personally
   69  liable in any administrative, civil, or criminal action for any
   70  error in determining that a resident is appropriate for
   71  admission or continued residency. The medical examination report
   72  shall become a permanent part of the record of the resident at
   73  the facility and shall be made available to the agency during
   74  inspection or upon request. An assessment that has been
   75  completed through the Comprehensive Assessment and Review for
   76  Long-Term Care Services (CARES) Program fulfills the
   77  requirements for a medical examination under this subsection and
   78  s. 429.07(3)(b)6.
   79         Section 2. Subsection (1) of section 429.29, Florida
   80  Statutes, is amended to read:
   81         429.29 Civil actions to enforce rights.—
   82         (1) Any person or resident whose rights as specified in
   83  this part are violated shall have a cause of action that. The
   84  action may be brought by the resident or the resident’s his or
   85  her guardian, or by a person or organization acting on behalf of
   86  a resident with the consent of the resident or the resident’s
   87  his or her guardian, or by the personal representative of the
   88  estate of a deceased resident regardless of the cause of death.
   89  If the action alleges a claim for the resident’s rights or for
   90  negligence that caused the death of the resident, the claimant
   91  shall be required to elect either survival damages pursuant to
   92  s. 46.021 or wrongful death damages pursuant to s. 768.21 before
   93  the initial pretrial conference. If the action alleges a claim
   94  for the resident’s rights or for negligence that did not cause
   95  the death of the resident, the personal representative of the
   96  estate may recover damages for the negligence that caused injury
   97  to the resident. The action may be brought in any court of
   98  competent jurisdiction to enforce such rights and to recover
   99  actual damages, and punitive damages for violation of the rights
  100  of a resident or negligence. Any resident who prevails in
  101  seeking injunctive relief or a claim for an administrative
  102  remedy is entitled to recover the costs of the action and a
  103  reasonable attorney attorney’s fee assessed against the
  104  defendant not to exceed $25,000. Fees shall be awarded solely
  105  for the injunctive or administrative relief and not for any
  106  claim or action for damages whether such claim or action is
  107  brought together with a request for an injunction or
  108  administrative relief or as a separate action, except as
  109  provided under s. 768.79 or the Florida Rules of Civil
  110  Procedure. Sections 429.29-429.298 provide the exclusive remedy
  111  for a cause of action for recovery of damages for the personal
  112  injury or death of a resident arising out of negligence or a
  113  violation of rights specified in s. 429.28 and preclude a cause
  114  of action under s. 415.111 against an employee or agent of a
  115  facility licensed under this part unless the employee or agent
  116  has been found personally guilty of a criminal offense that
  117  constitutes abuse, neglect, or exploitation as defined in s.
  118  415.102 as the result of a trial or entry of a plea of guilty or
  119  nolo contendere, regardless of adjudication. This section does
  120  not preclude theories of recovery not arising out of negligence
  121  or s. 429.28 which are available to a resident or to the agency.
  122  The provisions of chapter 766 do not apply to any cause of
  123  action brought under ss. 429.29-429.298.
  124         Section 3. This act shall take effect July 1, 2013.