Florida Senate - 2022 CS for SB 804
By the Committee on Health Policy; and Senator Albritton
588-02938-22 2022804c1
1 A bill to be entitled
2 An act relating to modernization of nursing home
3 facility staffing; amending s. 400.021, F.S.; revising
4 the definition of the term “resident care plan”;
5 amending s. 400.23, F.S.; defining the terms “direct
6 care staff” and “facility assessment”; specifying
7 functions that do not constitute direct care staffing
8 hours for purposes of required nursing home staffing
9 ratios; revising nursing home staffing requirements;
10 requiring nursing home facilities to maintain staffing
11 records for a specified time and report staffing
12 information consistent with federal law; providing
13 construction; providing that evidence of compliance
14 with state minimum staffing requirements is not
15 admissible as evidence for compliance with specified
16 provisions of federal law; providing that eating
17 assistance to residents provided by certain direct
18 care staff counts toward certain minimum direct care
19 staffing requirements; authorizing the Agency for
20 Health Care Administration to adopt rules; amending s.
21 400.0234, F.S.; providing that certain forms filed
22 with the agency are not confidential or exempt and may
23 be discoverable and admissible in civil or
24 administrative proceedings; amending s. 400.024, F.S.;
25 providing that an unsatisfied or undischarged adverse
26 final judgment in connection with a nursing home
27 facility becomes the responsibility and liability of a
28 new owner if ownership of the facility is transferred;
29 requiring a licensee to provide written notice to any
30 pending claimants or their attorneys of record within
31 a specified timeframe after filing a change of
32 ownership application with the agency; providing
33 requirements for the notice; providing that claimants
34 may object to the application within a specified
35 timeframe under certain circumstances; requiring the
36 agency to consider any such objections in its
37 decision; providing for the filing of such objections
38 in circuit court under certain circumstances; defining
39 the term “claimant”; amending s. 400.141, F.S.;
40 conforming cross-references and provisions to changes
41 made by the act; revising provisions related to
42 moratoriums on new admissions for facilities that fail
43 to comply with minimum staffing requirements; deleting
44 a certain fine; creating the Nursing Home
45 Sustainability Task Force; providing duties and
46 membership of the task force; requiring the task force
47 to submit its recommendations to the agency, the
48 Governor, and the Legislature by a specified date;
49 amending s. 651.118, F.S.; making a technical change;
50 providing an effective date.
51
52 Be It Enacted by the Legislature of the State of Florida:
53
54 Section 1. Subsection (18) of section 400.021, Florida
55 Statutes, is amended to read:
56 400.021 Definitions.—When used in this part, unless the
57 context otherwise requires, the term:
58 (18) “Resident care plan” means a written, comprehensive
59 person-centered care plan developed in accordance with 42 C.F.R.
60 s. 483.21(b) which is, maintained, and reviewed at least not
61 less than quarterly by a registered nurse, with participation
62 from other facility staff and the resident or his or her
63 designee or legal representative. The resident care plan must
64 include, which includes a comprehensive assessment of the needs
65 of an individual resident; the type and frequency of services
66 required to provide the necessary care for the resident to
67 attain or maintain the highest practicable physical, mental, and
68 psychosocial well-being; a listing of services provided within
69 or outside the facility to meet those needs; and an explanation
70 of service goals.
71 Section 2. Subsection (3) of section 400.23, Florida
72 Statutes, is amended to read:
73 400.23 Rules; evaluation and deficiencies; licensure
74 status.—
75 (3)(a)1. As used in this subsection, the term:
76 a. “Direct care staff” means individuals who, through
77 interpersonal contact with residents or resident care
78 management, provide care and services to allow residents to
79 attain or maintain the highest practicable physical, mental, and
80 psychosocial well-being. The term includes, but is not limited
81 to, disciplines and professions that must be reported in
82 accordance with 42 C.F.R. s. 483.70(q) in the following
83 categories of direct care services:
84 (I) Physician.
85 (II) Nursing.
86 (III) Pharmacy.
87 (IV) Dietary.
88 (V) Therapeutic.
89 (VI) Dental.
90 (VII) Podiatry.
91 (VIII) Mental health.
92
93 The term does not include individuals whose primary duty is
94 maintaining the physical environment of the facility, including,
95 but not limited to, food preparation, laundry, and housekeeping.
96 b. “Facility assessment” means a process to determine the
97 staff competencies that are necessary to provide the level and
98 types of care needed for the facility’s resident population
99 considering the types of diseases, conditions, physical and
100 cognitive disabilities, overall acuity, and other pertinent
101 factors that are present within that resident population.
102 Additional requirements for conducting a facility assessment
103 must be performed in accordance with 42 C.F.R. s. 483.70(e).
104 2. For purposes of this subsection, direct care staffing
105 hours do not include time spent on nursing administration, staff
106 development, staffing coordination, and the administrative
107 portion of the minimum data set and care plan coordination for
108 Medicaid.
109 (b)1. Each facility must determine its direct care staffing
110 needs based on the facility assessment and the individual needs
111 of each resident based on the resident’s care plan. At a
112 minimum, staffing The agency shall adopt rules providing minimum
113 staffing requirements for nursing home facilities. These
114 requirements must include, for each facility:
115 a. A minimum weekly average of certified nursing assistant
116 and licensed nursing staffing combined of 3.6 hours of direct
117 care per resident per day. As used in this subparagraph sub
118 subparagraph, a week is defined as Sunday through Saturday.
119 b. A minimum certified nursing assistant staffing of 2.0
120 2.5 hours of direct care by a certified nursing assistant per
121 resident per day. A facility may not staff below a ratio of one
122 certified nursing assistant per 20 residents.
123 c. A minimum licensed nursing staffing of 1.0 hour of
124 direct care by a licensed nurse per resident per day. A facility
125 may not staff below a ratio of one licensed nurse per 40
126 residents.
127 2. Nursing assistants employed under s. 400.211(2) may be
128 included in computing the hours of direct care provided by
129 certified nursing assistants and may be included in computing
130 the staffing ratio for certified nursing assistants if their job
131 responsibilities include only nursing-assistant-related duties.
132 3. Each nursing home facility must document compliance with
133 staffing standards as required under this paragraph and post
134 daily the names of licensed nurses and certified nursing
135 assistants staff on duty for the benefit of facility residents
136 and the public. Facilities must maintain the records documenting
137 compliance with minimum staffing standards for a period of 5
138 years and must report staffing in accordance with 42 C.F.R. s.
139 483.70(q).
140 4. The agency must shall recognize the use of licensed
141 nurses for compliance with minimum staffing requirements for
142 certified nursing assistants if the nursing home facility
143 otherwise meets the minimum staffing requirements for licensed
144 nurses and the licensed nurses are performing the duties of a
145 certified nursing assistant. Unless otherwise approved by the
146 agency, licensed nurses counted toward the minimum staffing
147 requirements for certified nursing assistants must exclusively
148 perform the duties of a certified nursing assistant for the
149 entire shift and not also be counted toward the minimum staffing
150 requirements for licensed nurses. If the agency approved a
151 facility’s request to use a licensed nurse to perform both
152 licensed nursing and certified nursing assistant duties, the
153 facility must allocate the amount of staff time specifically
154 spent on certified nursing assistant duties for the purpose of
155 documenting compliance with minimum staffing requirements for
156 certified and licensed nursing staff. The hours of a licensed
157 nurse with dual job responsibilities may not be counted twice.
158 5. The nurse staffing requirements imposed in this
159 paragraph are minimum nurse staffing requirements for nursing
160 home facilities. Evidence that a facility complied with the
161 minimum direct care staffing requirements under subparagraph 1.
162 is not admissible as evidence of compliance with the nursing
163 services requirements under 42 C.F.R. s. 483.35 or 42 C.F.R. s.
164 483.70.
165 (c)(b) Paid feeding assistants and direct care staff, other
166 than certified nursing assistants, who have successfully
167 completed the feeding assistant training program under s.
168 400.141(1)(v) and who provide nonnursing staff providing eating
169 assistance to residents shall not count toward compliance with
170 overall direct care minimum staffing hours but not the hours of
171 direct care required for certified nursing assistants or
172 licensed nurses standards.
173 (d)(c) Licensed practical nurses licensed under chapter 464
174 who provide are providing nursing services in nursing home
175 facilities under this part may supervise the activities of other
176 licensed practical nurses, certified nursing assistants, and
177 other unlicensed personnel providing services in such facilities
178 in accordance with rules adopted by the Board of Nursing.
179 (e) The agency may adopt rules to implement this
180 subsection.
181 Section 3. Present subsection (2) of section 400.0234,
182 Florida Statutes, is redesignated as subsection (3), and a new
183 subsection (2) is added to that section, to read:
184 400.0234 Availability of facility records for investigation
185 of resident’s rights violations and defenses; penalty.—
186 (2) Forms filed with the agency pursuant to s. 408.061(5)
187 and (6) are not confidential or exempt from the provisions of s.
188 119.07(1) and s. 24(a), Art. I of the State Constitution and may
189 be discoverable and admissible in a civil action under this part
190 or an administrative action under this part or part II of
191 chapter 408.
192 Section 4. Subsection (4) of section 400.024, Florida
193 Statutes, is amended to read:
194 400.024 Failure to satisfy a judgment or settlement
195 agreement.—
196 (4) If, After the agency is placed on notice pursuant to
197 subsection (2), the following applies and:
198 (a) If the license is subject to renewal, the agency may
199 deny the license renewal unless compliance with this section is
200 achieved.; and
201 (b) If a change of ownership application for the facility
202 at issue is filed submitted by the licensee, by a person or
203 entity identified as having a controlling interest in the
204 licensee, or by a related party, the unsatisfied or undischarged
205 adverse final judgment under subsection (1) becomes the
206 responsibility and liability of the transferee, and the agency
207 shall deny the change of ownership application unless compliance
208 with this section is achieved.
209 (c) If a change of ownership application for the facility
210 at issue is filed by the licensee, by a person or entity
211 identified as having a controlling interest in the licensee, or
212 by a related party, then:
213 1. The licensee or transferor must provide written notice
214 of the filing of the application to each pending claimant or the
215 claimant’s attorney of record, if applicable, within 14 days
216 after the date the application is filed with the agency.
217 2. The written notice must be provided by certified mail,
218 return receipt requested, or other method that provides
219 verification of receipt.
220 3. A claimant has 30 days after the date of receipt of the
221 written notice to object to the application if the claimant has
222 reason to believe that the approval of the application would
223 facilitate a fraudulent transfer or allow the transferor to
224 avoid financial responsibility for the claimant’s pending claim.
225 4. The agency must consider any objection brought pursuant
226 to this subsection in its decision to approve or deny an
227 application for change of ownership under this part and part II
228 of chapter 408.
229 5. If a claim is pending in arbitration at the time that
230 the application for change of ownership is filed, the claimant
231 may file a petition to enjoin the transfer in circuit court.
232 6. As used in this paragraph, “claimant” means a resident
233 or the resident’s family or personal representative who has
234 notified the licensee or facility of a potential claim by notice
235 of intent letter or who has initiated an action, claim, or
236 arbitration proceeding against the licensee or facility.
237 Section 5. Paragraphs (g), (n), and (r) of subsection (1)
238 of section 400.141, Florida Statutes, are amended to read:
239 400.141 Administration and management of nursing home
240 facilities.—
241 (1) Every licensed facility shall comply with all
242 applicable standards and rules of the agency and shall:
243 (g) If the facility has a standard license, exceeds the
244 minimum required hours of direct care provided by licensed
245 nurses nursing and certified nursing assistants assistant direct
246 care per resident per day, and is part of a continuing care
247 facility licensed under chapter 651 or is a retirement community
248 that offers other services pursuant to part III of this chapter
249 or part I or part III of chapter 429 on a single campus, be
250 allowed to share programming and staff. At the time of
251 inspection, a continuing care facility or retirement community
252 that uses this option must demonstrate through staffing records
253 that minimum staffing requirements for the facility were met.
254 Licensed nurses and certified nursing assistants who work in the
255 facility may be used to provide services elsewhere on campus if
256 the facility exceeds the minimum number of direct care hours
257 required per resident per day and the total number of residents
258 receiving direct care services from a licensed nurse or a
259 certified nursing assistant does not cause the facility to
260 violate the staffing ratios required under s. 400.23(3)(b) s.
261 400.23(3)(a). Compliance with the minimum staffing ratios must
262 be based on the total number of residents receiving direct care
263 services, regardless of where they reside on campus. If the
264 facility receives a conditional license, it may not share staff
265 until the conditional license status ends. This paragraph does
266 not restrict the agency’s authority under federal or state law
267 to require additional staff if a facility is cited for
268 deficiencies in care which are caused by an insufficient number
269 of certified nursing assistants or licensed nurses. The agency
270 may adopt rules for the documentation necessary to determine
271 compliance with this provision.
272 (n) Comply with state minimum-staffing requirements:
273 1. The agency may impose a moratorium on new admissions for
274 a facility that has failed for 48 consecutive hours to comply
275 with the minimum hours of direct care required to be provided by
276 a licensed nurse or certified nursing assistant. The moratorium
277 may be imposed until the facility is able to document compliance
278 with the minimum direct care hours required per resident per day
279 for licensed nurses and certified nursing assistants state
280 minimum-staffing requirements for 2 consecutive days is
281 prohibited from accepting new admissions until the facility has
282 achieved the minimum-staffing requirements for 6 consecutive
283 days. For the purposes of this subparagraph, any person who was
284 a resident of the facility and was absent from the facility for
285 the purpose of receiving medical care at a separate location or
286 was on a leave of absence is not considered a new admission.
287 Failure by the facility to impose such an admissions moratorium
288 is subject to a $1,000 fine.
289 2. A facility that has a standard does not have a
290 conditional license may be cited for failure to comply with the
291 standards in s. 400.23(3)(b)1.b. and c. s. 400.23(3)(a)1.b. and
292 c. only if it has failed to meet those standards on 2
293 consecutive days or if it has failed to meet at least 97 percent
294 of those standards on any one day.
295 3. A facility that has a conditional license must be in
296 compliance with the standards in s. 400.23(3)(b) s. 400.23(3)(a)
297 at all times.
298 (r) Maintain in the medical record for each resident a
299 daily chart of direct care certified nursing assistant services
300 provided to the resident. The direct care staff certified
301 nursing assistant who is caring for the resident must complete
302 this record by the end of his or her shift. This record must
303 indicate assistance with activities of daily living, assistance
304 with eating, and assistance with drinking, and must record each
305 offering of nutrition and hydration for those residents whose
306 plan of care or assessment indicates a risk for malnutrition or
307 dehydration.
308 Section 6. Nursing Home Sustainability Task Force.—There is
309 created the Nursing Home Sustainability Task Force. The task
310 force shall review, analyze, and make recommendations specific
311 to the sustainability of the state’s model of providing quality
312 nursing home care. The task force shall consist of
313 representatives of nursing home providers and other interested
314 stakeholders. The task force shall review all areas of the
315 provision of health care services to residents, regulation,
316 liability, licensing, quality initiatives, and the availability
317 of quality, affordable, and accessible health care. The task
318 force shall make any recommendations to the Agency for Health
319 Care Administration, the Governor, the President of the Senate,
320 and the Speaker of the House of Representatives by January 1,
321 2025.
322 Section 7. Subsection (6) of section 651.118, Florida
323 Statutes, is amended to read:
324 651.118 Agency for Health Care Administration; certificates
325 of need; sheltered beds; community beds.—
326 (6) Unless the provider already has a component that is to
327 be a part of the continuing care facility and that is licensed
328 under chapter 395, part II of chapter 400, or part I of chapter
329 429 at the time of construction of the continuing care facility,
330 the provider must construct the non-nursing nonnursing home
331 portion of the facility and the nursing home portion of the
332 facility at the same time. If a provider constructs less than
333 the number of residential units approved in the certificate of
334 authority, the number of licensed sheltered nursing home beds
335 shall be reduced by a proportionate share.
336 Section 8. This act shall take effect upon becoming a law.