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.