Florida Senate - 2022                                    SB 1734
       
       
        
       By Senator Gibson
       
       
       
       
       
       6-00935-22                                            20221734__
    1                        A bill to be entitled                      
    2         An act relating to resident care in nursing home
    3         facilities; amending s. 400.022, F.S.; requiring a
    4         resident’s attending health care provider in a nursing
    5         home facility to consult with the resident’s personal
    6         physician, if selected, in the provision of acute care
    7         to the resident and before ordering or prescribing
    8         medication to the resident; requiring the resident’s
    9         attending health care provider to document any such
   10         consultations in the resident’s records; requiring the
   11         nursing home facility to provide the resident’s
   12         records to the resident’s personal physician in
   13         accordance with specified provisions; providing that
   14         residents or their legal representatives have the
   15         right to receive a response from a nursing home
   16         facility within a specified timeframe of an inquiry or
   17         request for information; creating s. 400.0221, F.S.;
   18         requiring nursing home facilities to take certain
   19         measures before admitting a resident; requiring
   20         nursing home facilities to provide residents or their
   21         legal representatives with a copy of the resident care
   22         plan immediately after it is developed; requiring a
   23         physician, registered nurse, or care coordinator to
   24         discuss the plan with the resident or the resident’s
   25         legal representative for a specified purpose;
   26         requiring such plan to be reviewed at least quarterly
   27         by specified individuals; requiring the plan to be
   28         revised under certain circumstances; amending s.
   29         400.141, F.S.; requiring nursing home facilities to
   30         provide each resident with the opportunity to select a
   31         personal physician; requiring the attending health
   32         care provider at the facility, if selected, to consult
   33         with the resident’s personal physician for certain
   34         care or before ordering or prescribing medication to
   35         the resident; requiring the attending health care
   36         provider to document such consultations in the
   37         resident’s records; requiring the facility to provide
   38         the resident’s records to his or her personal
   39         physician on a monthly basis and within a specified
   40         timeframe of any changes in the resident’s condition,
   41         care, or treatment; requiring the facility to
   42         immediately forward the results of any test or
   43         examination of the resident to the resident’s personal
   44         physician; requiring the facility to continue
   45         providing such records until notified otherwise by the
   46         resident or the resident’s legal representative;
   47         requiring nursing home facilities to maintain the
   48         names and contact information of specified individuals
   49         on their websites; requiring nursing home facilities
   50         to publicly display in the facility the names of the
   51         manager and director of nursing on duty; amending s.
   52         400.145, F.S.; revising the timeframe in which nursing
   53         home facilities must furnish requested records of a
   54         current or former resident; requiring nursing home
   55         facilities to provide a resident’s records to the
   56         resident’s selected health care providers outside of
   57         the facility on a monthly basis and within a specified
   58         timeframe of any change in the resident’s condition,
   59         care, or treatment; requiring facilities to
   60         immediately provide the results of any test or
   61         examination conducted on the resident to the
   62         applicable health care providers; requiring the
   63         facility to continue providing such records until
   64         notified otherwise by the resident or the resident’s
   65         legal representative; authorizing the agency to cite
   66         nursing home facilities during the survey process for
   67         alleged or actual noncompliance with certain
   68         requirements; amending s. 400.23, F.S.; requiring
   69         nursing home facilities to post on their websites
   70         specified information relating to staffing at their
   71         facilities; requiring such information to be in a
   72         conspicuous location on their websites and in a
   73         specified format; amending ss. 400.172, 400.211,
   74         408.822, 409.221, 430.80, 430.81, and 651.118, F.S.;
   75         conforming cross-references; providing an effective
   76         date.
   77          
   78  Be It Enacted by the Legislature of the State of Florida:
   79  
   80         Section 1. Paragraph (q) of subsection (1) of section
   81  400.022, Florida Statutes, is amended, and paragraph (w) is
   82  added to that subsection, to read:
   83         400.022 Residents’ rights.—
   84         (1) All licensees of nursing home facilities shall adopt
   85  and make public a statement of the rights and responsibilities
   86  of the residents of such facilities and shall treat such
   87  residents in accordance with the provisions of that statement.
   88  The statement shall assure each resident the following:
   89         (q) The right to freedom of choice in selecting a personal
   90  physician; to obtain pharmaceutical supplies and services from a
   91  pharmacy of the resident’s choice, at the resident’s own expense
   92  or through Title XIX of the Social Security Act; and to obtain
   93  information about, and to participate in, community-based
   94  activities programs, unless medically contraindicated as
   95  documented by a physician in the resident’s medical record. If a
   96  resident selects a personal physician, the resident’s attending
   97  health care provider at the facility must consult with the
   98  resident’s personal physician in providing any acute care to the
   99  resident and before ordering or prescribing medication for the
  100  resident to ensure that the medication is not medically
  101  contraindicated. The attending health care provider shall
  102  document any consultation with the resident’s personal physician
  103  in the resident’s records and provide copies of the resident’s
  104  records to the resident’s personal physician in accordance with
  105  s. 400.141(1)(e). If a resident chooses to use a community
  106  pharmacy and the facility in which the resident resides uses a
  107  unit-dose system, the pharmacy selected by the resident must
  108  shall be one that provides a compatible unit-dose system,
  109  provides service delivery, and stocks the drugs normally used by
  110  long-term care residents. If a resident chooses to use a
  111  community pharmacy and the facility in which the resident
  112  resides does not use a unit-dose system, the pharmacy selected
  113  by the resident must shall be one that provides service delivery
  114  and stocks the drugs normally used by long-term care residents.
  115         (w)The right to receive a response from the facility
  116  within 3 days after the resident or the resident’s legal
  117  representative makes an inquiry or otherwise requests
  118  information related to the resident or the resident’s care or
  119  treatment at the facility.
  120         Section 2. Section 400.0221, Florida Statutes, is created
  121  to read:
  122         400.0221 Resident admission procedures; resident care
  123  plans.—
  124         (1)Before admitting a resident, a nursing home facility
  125  must do all of the following:
  126         (a)Provide the resident or the resident’s legal
  127  representative with a printed copy of all of the following:
  128         1.The residents’ rights provided in s. 400.022. The
  129  resident and the resident’s legal representative must also be
  130  orally informed of the resident’s right under s. 400.022(1)(q)
  131  to select a personal physician and of the requirement that the
  132  personal physician be provided with the resident’s records and
  133  consulted in providing any acute care to the resident and before
  134  ordering or prescribing any medication for the resident. The
  135  facility must document in the resident’s care plan whether he or
  136  she selects a personal physician.
  137         2.The most recent version of the Nursing Home Guide
  138  published under s. 400.191.
  139         3.The agency’s most recent inspection report of the
  140  facility.
  141         4.The facility’s resident grievance procedures developed
  142  pursuant to s. 400.1183.
  143         5.The name and contact information of the medical
  144  director, managers, directors of nursing, care coordinators, and
  145  billing staff of the facility.
  146         (b)Give the resident or the resident’s legal
  147  representative a meaningful opportunity to discuss the
  148  information provided under paragraph (a).
  149         (c)Discuss with the resident or the resident’s legal
  150  representative any dietary restrictions applicable to the
  151  resident. The facility must confirm that it can comply with such
  152  restrictions before accepting a resident. The facility shall
  153  include the resident’s dietary restrictions in his or her
  154  resident care plan.
  155         (d)Discuss with the resident or the resident’s legal
  156  representative any physical or cognitive impairments affecting
  157  the resident which require accommodations in facilities or
  158  services or require that care be provided by individuals
  159  appropriately trained to serve residents with such impairments.
  160  If the facility cannot make such accommodations or does not have
  161  adequately trained staff to provide the care the resident needs,
  162  the facility may not accept the resident until such
  163  accommodations and care can be provided. If the resident is
  164  admitted, the facility must document the required accommodations
  165  and care for the resident in his or her resident care plan.
  166         (e)Ensure that it has a complete medical history for the
  167  resident, including, but not limited to, any prescribed
  168  medications, contraindicated medications or treatments, and
  169  allergies, which must be included in the resident care plan. The
  170  facility must inform the resident’s legal representative, if
  171  any, and the resident’s personal physician, if selected, before
  172  prescribing a new medication to the resident.
  173         (2)Immediately after a facility develops an initial
  174  resident care plan, the facility must provide the resident or
  175  the resident’s legal representative with a copy of the resident
  176  care plan. A physician, a registered nurse, or the care
  177  coordinator responsible for the resident shall discuss the
  178  resident care plan with the resident or the resident’s legal
  179  representative to determine whether any information is missing
  180  or incorrect and whether the plan of care delineated in the
  181  resident care plan accounts for all of the concerns expressed by
  182  the resident, the resident’s legal representative, or the
  183  resident’s personal physician, if applicable, before admission,
  184  including, but not limited to, any dietary restrictions or
  185  needed accommodations or care specific to the resident.
  186         (3)At least quarterly, a physician or registered nurse,
  187  with participation from other facility staff and the resident or
  188  the resident’s legal representative, shall review the resident
  189  care plan to assess the resident’s needs; the type and frequency
  190  of services required to provide the necessary care for the
  191  resident to attain or maintain the highest practical physical,
  192  mental, and psychosocial well-being; the services that are
  193  provided to the resident, both within and outside of the
  194  facility, and whether such services are sufficient to meet the
  195  resident’s needs; and the resident’s service goals. If it is
  196  determined that any of the resident’s needs are not being met,
  197  the resident care plan must be revised to promote the highest
  198  practical physical, mental, and psychosocial well-being of the
  199  resident.
  200         Section 3. Present paragraphs (e) through (l) and (m)
  201  through (w) of subsection (1) of section 400.141, Florida
  202  Statutes, are redesignated as paragraphs (f) through (m) and (o)
  203  through (y), respectively, and new paragraphs (e) and (n) are
  204  added to that subsection, to read:
  205         400.141 Administration and management of nursing home
  206  facilities.—
  207         (1) Every licensed facility shall comply with all
  208  applicable standards and rules of the agency and shall:
  209         (e) Provide each resident with the opportunity to select a
  210  personal physician as specified in s. 400.022(1)(q). The
  211  resident’s attending health care provider at the facility shall
  212  consult with the resident’s personal physician in providing any
  213  acute care to the resident and before ordering or prescribing
  214  medication for the resident to ensure the medication is not
  215  medically contraindicated for the resident. The attending health
  216  care provider shall document any consultation with the
  217  resident’s personal physician in the resident’s records. The
  218  facility shall provide the resident’s personal physician with
  219  the resident’s medical records and any records relating to the
  220  resident’s care and treatment at the facility on a monthly
  221  basis; however, in the event of a change in the resident’s
  222  condition, care, or treatment, the facility must inform and
  223  provide related records to the resident’s personal physician
  224  within 3 days after such change. If the facility conducts any
  225  test or examination on the resident, the facility must
  226  immediately forward the results of such test or examination to
  227  the resident’s personal physician. The facility shall continue
  228  to provide the resident’s records to the resident’s personal
  229  physician until the resident or the resident’s representative
  230  notifies the facility that the transfer of such records is no
  231  longer requested.
  232         (n)Maintain on its website the name and contact
  233  information for the medical director, managers, directors of
  234  nursing, care coordinators, administrator, and billing staff of
  235  the facility. The facility shall also publicly display in the
  236  facility the names of the manager and director of nursing on
  237  duty each day or, if different, each shift.
  238         Section 4. Subsections (1) and (8) of section 400.145,
  239  Florida Statutes, are amended to read:
  240         400.145 Copies of records of care and treatment of
  241  resident.—
  242         (1)(a) Upon receipt of a written request that complies with
  243  the federal Health Insurance Portability and Accountability Act
  244  of 1996 (HIPAA) and this section, a nursing home facility shall
  245  furnish to a competent resident, or to a representative of that
  246  resident who is authorized to make requests for the resident’s
  247  records under HIPAA or subsection (2), copies of the resident’s
  248  paper and electronic records that are in possession of the
  249  facility. Such records must include any medical records and
  250  records concerning the care and treatment of the resident
  251  performed by the facility, except for progress notes and
  252  consultation report sections of a psychiatric nature. The
  253  facility shall provide the requested records within 3 calendar
  254  14 working days after receipt of a request relating to a current
  255  resident or within 14 calendar 30 working days after receipt of
  256  a request relating to a former resident.
  257         (b)If a current resident of the facility or his or her
  258  legal representative has selected a personal physician outside
  259  of the facility for the resident or has requested that any of
  260  the resident’s health care providers outside of the facility be
  261  kept informed of the resident’s care and treatment in the
  262  facility, the facility must provide such records on a monthly
  263  basis; however, in the event of a change in the resident’s
  264  condition, care, or treatment, the facility must inform and
  265  provide related records to the resident’s applicable health care
  266  providers within 3 days after such change. If the facility
  267  conducts any test or examination on the resident, the facility
  268  must immediately forward the results of such test or examination
  269  to the resident’s applicable health care providers. The facility
  270  shall continue to provide the resident’s records to the
  271  resident’s health care providers as applicable until the
  272  resident or the resident’s legal representative notifies the
  273  facility that the transfer of such records is no longer
  274  requested.
  275         (8) A nursing home facility may not be cited by the agency
  276  through the survey process for any alleged or actual
  277  noncompliance with any of the requirements of this section,
  278  except for those under paragraph (1)(b).
  279         Section 5. Paragraph (a) of subsection (3) of section
  280  400.23, Florida Statutes, is amended to read:
  281         400.23 Rules; evaluation and deficiencies; licensure
  282  status.—
  283         (3)(a)1. The agency shall adopt rules providing minimum
  284  staffing requirements for nursing home facilities. These
  285  requirements must include, for each facility:
  286         a. A minimum weekly average of certified nursing assistant
  287  and licensed nursing staffing combined of 3.6 hours of direct
  288  care per resident per day. As used in this sub-subparagraph, a
  289  week is defined as Sunday through Saturday.
  290         b. A minimum certified nursing assistant staffing of 2.5
  291  hours of direct care per resident per day. A facility may not
  292  staff below one certified nursing assistant per 20 residents.
  293         c. A minimum licensed nursing staffing of 1.0 hour of
  294  direct care per resident per day. A facility may not staff below
  295  one licensed nurse per 40 residents.
  296         2. Nursing assistants employed under s. 400.211(2) may be
  297  included in computing the staffing ratio for certified nursing
  298  assistants if their job responsibilities include only nursing
  299  assistant-related duties.
  300         3. Each nursing home facility shall must document
  301  compliance with staffing standards as required under this
  302  paragraph and, for the benefit of facility residents and the
  303  public, shall post on its website daily the names of staff on
  304  duty and their affiliated staffing agency, if any; the average
  305  daily resident-to-staff ratio at the facility; the monthly staff
  306  turnover rate at the facility; and any fines imposed by the
  307  agency for noncompliance with the staffing standards specified
  308  in this paragraph. The facility shall post such information in a
  309  conspicuous location on its website in an easily accessible
  310  format for the benefit of facility residents and the public.
  311         4. The agency must shall recognize the use of licensed
  312  nurses for compliance with minimum staffing requirements for
  313  certified nursing assistants if the nursing home facility
  314  otherwise meets the minimum staffing requirements for licensed
  315  nurses and the licensed nurses are performing the duties of a
  316  certified nursing assistant. Unless otherwise approved by the
  317  agency, licensed nurses counted toward the minimum staffing
  318  requirements for certified nursing assistants must exclusively
  319  perform the duties of a certified nursing assistant for the
  320  entire shift and not also be counted toward the minimum staffing
  321  requirements for licensed nurses. If the agency approved a
  322  facility’s request to use a licensed nurse to perform both
  323  licensed nursing and certified nursing assistant duties, the
  324  facility must allocate the amount of staff time specifically
  325  spent on certified nursing assistant duties for the purpose of
  326  documenting compliance with minimum staffing requirements for
  327  certified and licensed nursing staff. The hours of a licensed
  328  nurse with dual job responsibilities may not be counted twice.
  329         Section 6. Subsection (1) of section 400.172, Florida
  330  Statutes, is amended to read:
  331         400.172 Respite care provided in nursing home facilities.—
  332         (1) For each person admitted for respite care as authorized
  333  under s. 400.141(1)(g) s. 400.141(1)(f), a nursing home facility
  334  operated by a licensee must:
  335         (a) Have a written abbreviated plan of care that, at a
  336  minimum, includes nutritional requirements, medication orders,
  337  physician orders, nursing assessments, and dietary preferences.
  338  The nursing or physician assessments may take the place of all
  339  other assessments required for full-time residents.
  340         (b) Have a contract that, at a minimum, specifies the
  341  services to be provided to a resident receiving respite care,
  342  including charges for services, activities, equipment, emergency
  343  medical services, and the administration of medications. If
  344  multiple admissions for a single person for respite care are
  345  anticipated, the original contract is valid for 1 year after the
  346  date the contract is executed.
  347         (c) Ensure that each resident is released to his or her
  348  caregiver or an individual designated in writing by the
  349  caregiver.
  350         Section 7. Paragraph (d) of subsection (2) of section
  351  400.211, Florida Statutes, is amended to read:
  352         400.211 Persons employed as nursing assistants;
  353  certification requirement.—
  354         (2) The following categories of persons who are not
  355  certified as nursing assistants under part II of chapter 464 may
  356  be employed by a nursing facility for a single consecutive
  357  period of 4 months:
  358         (d) Persons who are employed as personal care attendants
  359  and who have completed the personal care attendant training
  360  program developed pursuant to s. 400.141(1)(y) s. 400.141(1)(w).
  361  As used in this paragraph, the term “personal care attendants”
  362  means persons who meet the training requirement in s.
  363  400.141(1)(y) s. 400.141(1)(w) and provide care to and assist
  364  residents with tasks related to the activities of daily living.
  365  
  366  The certification requirement must be met within 4 months after
  367  initial employment as a nursing assistant in a licensed nursing
  368  facility.
  369         Section 8. Subsection (1) of section 408.822, Florida
  370  Statutes, is amended to read:
  371         408.822 Direct care workforce survey.—
  372         (1) For purposes of this section, the term “direct care
  373  worker” means a certified nursing assistant, a home health aide,
  374  a personal care assistant, a companion services or homemaker
  375  services provider, a paid feeding assistant trained under s.
  376  400.141(1)(x) s. 400.141(1)(v), or another individual who
  377  provides personal care as defined in s. 400.462 to individuals
  378  who are elderly, developmentally disabled, or chronically ill.
  379         Section 9. Paragraph (e) of subsection (4) of section
  380  409.221, Florida Statutes, is amended to read:
  381         409.221 Consumer-directed care program.—
  382         (4) CONSUMER-DIRECTED CARE.—
  383         (e) Services.—Consumers shall use the budget allowance only
  384  to pay for home and community-based services that meet the
  385  consumer’s long-term care needs and are a cost-efficient use of
  386  funds. Such services may include, but are not limited to, the
  387  following:
  388         1. Personal care.
  389         2. Homemaking and chores, including housework, meals,
  390  shopping, and transportation.
  391         3. Home modifications and assistive devices which may
  392  increase the consumer’s independence or make it possible to
  393  avoid institutional placement.
  394         4. Assistance in taking self-administered medication.
  395         5. Day care and respite care services, including those
  396  provided by nursing home facilities pursuant to s. 400.141(1)(g)
  397  s. 400.141(1)(f) or by adult day care facilities licensed
  398  pursuant to s. 429.907.
  399         6. Personal care and support services provided in an
  400  assisted living facility.
  401         Section 10. Subsection (3) of section 430.80, Florida
  402  Statutes, is amended to read:
  403         430.80 Implementation of a teaching nursing home pilot
  404  project.—
  405         (3) To be designated as a teaching nursing home, a nursing
  406  home licensee must, at a minimum:
  407         (a) Provide a comprehensive program of integrated senior
  408  services that include institutional services and community-based
  409  services;
  410         (b) Participate in a nationally recognized accrediting
  411  program and hold a valid accreditation, such as the
  412  accreditation awarded by the Joint Commission, or, at the time
  413  of initial designation, possess a Gold Seal Award as conferred
  414  by the state on its licensed nursing home;
  415         (c) Have been in business in this state for a minimum of 10
  416  consecutive years;
  417         (d) Demonstrate an active program in multidisciplinary
  418  education and research that relates to gerontology;
  419         (e) Have a formalized contractual relationship with at
  420  least one accredited health profession education program located
  421  in this state;
  422         (f) Have senior staff members who hold formal faculty
  423  appointments at universities, which must include at least one
  424  accredited health profession education program; and
  425         (g) Maintain insurance coverage pursuant to s.
  426  400.141(1)(s) s. 400.141(1)(q) or proof of financial
  427  responsibility in a minimum amount of $750,000. Such proof of
  428  financial responsibility may include:
  429         1. Maintaining an escrow account consisting of cash or
  430  assets eligible for deposit in accordance with s. 625.52; or
  431         2. Obtaining and maintaining pursuant to chapter 675 an
  432  unexpired, irrevocable, nontransferable and nonassignable letter
  433  of credit issued by any bank or savings association organized
  434  and existing under the laws of this state or any bank or savings
  435  association organized under the laws of the United States that
  436  has its principal place of business in this state or has a
  437  branch office which is authorized to receive deposits in this
  438  state. The letter of credit shall be used to satisfy the
  439  obligation of the facility to the claimant upon presentment of a
  440  final judgment indicating liability and awarding damages to be
  441  paid by the facility or upon presentment of a settlement
  442  agreement signed by all parties to the agreement when such final
  443  judgment or settlement is a result of a liability claim against
  444  the facility.
  445         Section 11. Paragraph (h) of subsection (2) of section
  446  430.81, Florida Statutes, is amended to read:
  447         430.81 Implementation of a teaching agency for home and
  448  community-based care.—
  449         (2) The Department of Elderly Affairs may designate a home
  450  health agency as a teaching agency for home and community-based
  451  care if the home health agency:
  452         (h) Maintains insurance coverage pursuant to s.
  453  400.141(1)(s) s. 400.141(1)(q) or proof of financial
  454  responsibility in a minimum amount of $750,000. Such proof of
  455  financial responsibility may include:
  456         1. Maintaining an escrow account consisting of cash or
  457  assets eligible for deposit in accordance with s. 625.52; or
  458         2. Obtaining and maintaining, pursuant to chapter 675, an
  459  unexpired, irrevocable, nontransferable, and nonassignable
  460  letter of credit issued by any bank or savings association
  461  authorized to do business in this state. This letter of credit
  462  shall be used to satisfy the obligation of the agency to the
  463  claimant upon presentation of a final judgment indicating
  464  liability and awarding damages to be paid by the facility or
  465  upon presentment of a settlement agreement signed by all parties
  466  to the agreement when such final judgment or settlement is a
  467  result of a liability claim against the agency.
  468         Section 12. Subsection (13) of section 651.118, Florida
  469  Statutes, is amended to read:
  470         651.118 Agency for Health Care Administration; certificates
  471  of need; sheltered beds; community beds.—
  472         (13) Residents, as defined in this chapter, are not
  473  considered new admissions for the purpose of s. 400.141(1)(p)1
  474  s. 400.141(1)(n)1.
  475         Section 13. This act shall take effect July 1, 2022.