Florida Senate - 2023                                    SB 1304
       
       
        
       By Senator Burton
       
       
       
       
       
       12-00993A-23                                          20231304__
    1                        A bill to be entitled                      
    2         An act relating to claims against long-term care
    3         facilities; amending s. 400.023, F.S.; providing
    4         requirements for admissible evidence for specified
    5         claims; authorizing certain individuals to provide
    6         certain expert opinions relating to such claims if
    7         they meet specified criteria; prohibiting an expert
    8         witness from testifying on a contingency fee basis;
    9         amending ss. 400.0233 and 429.293, F.S.; providing
   10         requirements for corroboration of reasonable grounds
   11         to initiate a claim for residents’ rights violation or
   12         negligence as to each prospective defendant; deleting
   13         a provision authorizing a licensed physician or
   14         registered nurse to be retained for specified
   15         purposes; repealing ss. 400.0235 and 429.295, F.S.,
   16         relating to specified actions not being applicable to
   17         claims for medical malpractice; amending ss. 400.0236
   18         and 429.296, F.S.; deleting provisions providing
   19         applicability of certain limitations; amending s.
   20         429.29, F.S.; providing requirements for an exclusive
   21         cause of action for residents’ rights violations or
   22         negligence to be brought against specified
   23         individuals; providing definitions; prohibiting such
   24         action from being asserted against certain individuals
   25         or entities under certain circumstances; providing
   26         exceptions; providing requirements for admissible
   27         evidence for specified claims; providing requirements
   28         for an individual to provide expert opinions;
   29         prohibiting an expert witness from testifying on a
   30         contingency fee basis; providing immunity from
   31         liability for certain individuals; providing that such
   32         actions are not claims for medical negligence;
   33         amending s. 429.294, F.S.; providing requirements for
   34         residents’ records; prohibiting a facility from being
   35         cited by the Agency for Health Care Administration
   36         under certain circumstances; providing construction;
   37         amending s. 429.297, F.S.; revising requirements for
   38         recovery of certain damages and liability for such
   39         damages; deleting obsolete language; creating s.
   40         429.299, F.S.; providing requirements for a licensee
   41         to satisfy a judgment or settlement agreement;
   42         providing applicability; providing an effective date.
   43          
   44  Be It Enacted by the Legislature of the State of Florida:
   45  
   46         Section 1. Present subsections (5), (6), (7), (8), and (9)
   47  of section 400.023, Florida Statutes, are redesignated as
   48  subsections (6), (7), (8), (14), and (15), respectively, new
   49  subsections (5) and (9) and subsections (10) through (13) are
   50  added to that section, and subsection (4) and present subsection
   51  (9) of that section are amended, to read:
   52         400.023 Civil enforcement.—
   53         (4) In a claim brought pursuant to this part alleging a
   54  violation of residents’ rights or negligence causing injury to
   55  or the death of a resident, the claimant has the burden of
   56  proving, by a preponderance of the evidence, that:
   57         (a) The defendant owed a duty to the resident;
   58         (b) The defendant breached the duty to the resident;
   59         (c) The breach of the duty is a legal cause of loss,
   60  injury, death, or damage to the resident; and
   61         (d) The resident sustained loss, injury, death, or damage
   62  as a result of the breach.
   63  
   64  This part does not create strict liability. A violation of the
   65  rights provided set forth in s. 400.022, in any other standard
   66  or guidelines specified in this part, or in any applicable
   67  administrative standard or guidelines of this state or a federal
   68  regulatory agency may be is evidence of negligence but is not
   69  considered negligence per se.
   70         (5)Notwithstanding this section, evidence of a violation
   71  described in subsection (4), including licensure inspections and
   72  surveys, cited deficiencies, plans of correction, or sanctions
   73  imposed by the agency, is admissible as evidence in a claim
   74  under this part only if the evidence relates to a material
   75  violation of the standards or guidelines specified in this part
   76  or an applicable administrative standard or guideline relating
   77  to:
   78         (a)The alleged occurrence and the particular individual
   79  whose injury or death is the basis for the claim; or
   80         (b)A finding by the agency which directly involves
   81  substantially similar conduct that occurred at the nursing home
   82  facility within a period of 12 months before the date of the
   83  alleged occurrence that is the basis for the claim.
   84         (9)An individual may provide an expert opinion on the
   85  appropriate degree of reasonable care that a reasonably careful
   86  licensee, individual, or entity would use under like
   87  circumstances in operating a nursing home facility as to
   88  administrative and other nonclinical issues if the individual
   89  has substantial knowledge in regard to operating a nursing home
   90  facility in the state by virtue of his or her training and
   91  experience during the 3 years immediately preceding the date of
   92  the alleged occurrence that is the basis for the claim.
   93         (10)An individual who holds an active and valid health
   94  care professional license issued by the Department of Health may
   95  provide an expert opinion concerning the prevailing professional
   96  standard of care that a reasonably prudent similar health care
   97  professional would use under the relevant surrounding
   98  circumstances. The expert witness must have devoted professional
   99  time during the 3 years immediately preceding the date of the
  100  alleged occurrence that is the basis for the claim to:
  101         (a)The active clinical practice of, or active clinical
  102  consultation with respect to, the care and treatment of patients
  103  residing in a nursing home facility;
  104         (b)The instruction of students or active work in an
  105  accredited health professional school or accredited residency or
  106  clinical research program with respect to the care and treatment
  107  of patients residing in a nursing home facility; or
  108         (c)The active clinical practice of, or active clinical
  109  consultation with respect to, the care and treatment of patients
  110  who are 65 years of age or older.
  111         (11)A physician licensed under chapter 458 or chapter 459
  112  who qualifies to provide an expert opinion under subsection (10)
  113  and who, by reason of active clinical practice or instruction of
  114  students, has knowledge of the applicable standard of care for
  115  physicians or other medical support staff, may give expert
  116  testimony in a negligence action with respect to the
  117  professional standard of care of such physicians or other
  118  medical support staff.
  119         (12)A nurse licensed to practice professional nursing
  120  under chapter 464 who qualifies to provide an expert opinion
  121  under subsection (10) and who, by reason of active clinical
  122  practice or instruction of students, has knowledge of the
  123  applicable standard of care for nurses or other medical support
  124  staff, may give expert testimony in a negligence action with
  125  respect to the professional standard of care of such nurses or
  126  other medical support staff.
  127         (13)An expert witness may not testify on a contingency fee
  128  basis.
  129         (15)(9) An action under this part for a violation of the
  130  rights or negligence recognized herein is not a claim for
  131  medical negligence; however, malpractice, and s. 768.21(8)
  132  applies does not apply to a claim alleging death of a the
  133  resident.
  134         Section 2. Subsections (1), (2), (4), and (5) of section
  135  400.0233, Florida Statutes, are amended to read:
  136         400.0233 Presuit notice; investigation; notification of
  137  violation of residents’ resident’s rights or alleged negligence;
  138  claims evaluation procedure; informal discovery; review;
  139  settlement offer; mediation.—
  140         (1) As used in ss. 400.023-400.0238 this section, the term:
  141         (a) “Claim for residents’ resident’s rights violation or
  142  negligence” means a negligence claim alleging injury to or the
  143  death of a resident arising out of an asserted violation of the
  144  rights of a resident under s. 400.022 or an asserted deviation
  145  from the applicable standard of care.
  146         (b) “Insurer” means any self-insurer authorized under s.
  147  627.357, liability insurance carrier, joint underwriting
  148  association, or uninsured prospective defendant.
  149         (2) Before Prior to filing a claim for residents’ rights a
  150  violation of a resident’s rights or a claim for negligence, a
  151  claimant alleging injury to or the death of a resident shall
  152  notify each prospective defendant by certified mail, return
  153  receipt requested, of an asserted violation of a resident’s
  154  rights provided in s. 400.022 or deviation from the standard of
  155  care. Such notification shall include an identification of the
  156  rights the prospective defendant has violated and the negligence
  157  alleged to have caused the incident or incidents and a brief
  158  description of the injuries sustained by the resident which are
  159  reasonably identifiable at the time of notice. The notice shall
  160  contain a certificate of counsel that counsel’s reasonable
  161  investigation gave rise to a good faith belief that grounds
  162  exist for an action against each prospective defendant.
  163  Corroboration of reasonable grounds to initiate a claim for
  164  residents’ rights violation or negligence as to each prospective
  165  defendant shall be provided by the claimant’s submission of a
  166  written expert opinion from an individual qualified as an expert
  167  pursuant to s. 400.023 at the time the notice of intent to file
  168  a claim is mailed, which stated opinion must corroborate
  169  reasonable grounds to support the claim.
  170         (4) The notification of a violation of residents’ a
  171  resident’s rights or alleged negligence shall be served within
  172  the applicable statute of limitations period; however, during
  173  the 75-day period, the statute of limitations is tolled as to
  174  all prospective defendants. Upon stipulation by the parties, the
  175  75-day period may be extended and the statute of limitations is
  176  tolled during any such extension. Upon receiving written notice
  177  by certified mail, return receipt requested, of termination of
  178  negotiations in an extended period, the claimant shall have 60
  179  days or the remainder of the period of the statute of
  180  limitations, whichever is greater, within which to file suit.
  181         (5) A No statement, discussion, written document, report,
  182  or other work product generated by presuit claims evaluation
  183  procedures under this section is not discoverable or admissible
  184  in any civil action for any purpose by the opposing party. All
  185  participants, including, but not limited to, physicians,
  186  investigators, witnesses, and employees or associates of the
  187  defendant, are immune from civil liability arising from
  188  participation in the presuit claims evaluation procedure. Any
  189  licensed physician or registered nurse may be retained by either
  190  party to provide an opinion regarding the reasonable basis of
  191  the claim. The presuit opinions of the expert are not
  192  discoverable or admissible in any civil action for any purpose
  193  by the opposing party.
  194         Section 3. Section 400.0235, Florida Statutes, is repealed.
  195         Section 4. Subsection (3) of section 400.0236, Florida
  196  Statutes, is amended to read:
  197         400.0236 Statute of limitations.—
  198         (3)This section shall apply to causes of action that have
  199  accrued prior to the effective date of this section; however,
  200  any such cause of action that would not have been barred under
  201  prior law may be brought within the time allowed by prior law or
  202  within 2 years after the effective date of this section,
  203  whichever is earlier, and will be barred thereafter. In actions
  204  where it can be shown that fraudulent concealment or intentional
  205  misrepresentation of fact prevented the discovery of the injury,
  206  the period of limitations is extended forward 2 years from the
  207  time that the injury is discovered with the exercise of due
  208  diligence, but in no event more than 4 years from the effective
  209  date of this section.
  210         Section 5. Section 429.29, Florida Statutes, is amended to
  211  read:
  212         429.29 Civil actions to enforce rights.—
  213         (1) An exclusive cause of action for residents’ Any person
  214  or resident whose rights violation or negligence as specified
  215  under in this part which alleges direct or vicarious liability
  216  for the personal injury or death of a resident arising from such
  217  rights violation or negligence and which seeks damages for such
  218  injury or death may be brought only against the licensee, the
  219  licensee’s management or consulting company, the licensee’s
  220  managing employees, and any direct caregivers, whether employees
  221  or contractors are violated shall have a cause of action.
  222         (a) The action may be brought by the resident or his or her
  223  guardian, or by an individual a person or organization acting on
  224  behalf of a resident with the consent of the resident or his or
  225  her guardian, or by the personal representative of the estate of
  226  a deceased resident regardless of the cause of death.
  227         (b) If the action alleges a claim for residents’ the
  228  resident’s rights violation or for negligence that caused the
  229  death of the resident, the claimant shall, after the verdict,
  230  but before the judgment is entered, be required to elect either
  231  survival damages pursuant to s. 46.021 or wrongful death damages
  232  pursuant to s. 768.21. If the action alleges a claim for
  233  residents’ the resident’s rights violation or for negligence
  234  that did not cause the death of the resident, the personal
  235  representative of the estate may recover damages for the
  236  negligence that caused injury to the resident.
  237         (c) The action may be brought in any court of competent
  238  jurisdiction to enforce such rights and to recover actual
  239  damages, and punitive damages for violation of the rights of a
  240  resident or negligence.
  241         (d)A Any resident who prevails in seeking injunctive
  242  relief or a claim for an administrative remedy is entitled to
  243  recover the costs of the action and a reasonable attorney fees
  244  attorney’s fee assessed against the defendant of up to not to
  245  exceed $25,000. Such attorney fees shall be awarded solely for
  246  the injunctive or administrative relief and not for any claim or
  247  action for damages whether such claim or action is brought
  248  together with a request for an injunction or administrative
  249  relief or as a separate action, except as provided under s.
  250  768.79 or the Florida Rules of Civil Procedure. Sections 429.29
  251  429.298 provide the exclusive remedy for a cause of action for
  252  recovery of damages for the personal injury or death of a
  253  resident arising out of negligence or a violation of rights
  254  specified in s. 429.28.
  255         (e) This section does not preclude theories of recovery not
  256  arising out of negligence or s. 429.28 which are available to a
  257  resident or to the agency. The provisions of Chapter 766 does do
  258  not apply to any cause of action brought under ss. 429.29
  259  429.298. An action against any other individual or entity may be
  260  brought only pursuant to subsection (3).
  261         (2)As used in this section, the term:
  262         (a)“Licensee” means an individual, corporation,
  263  partnership, firm, association, governmental entity, or other
  264  entity that is issued a permit, registration, certificate, or
  265  license by the agency and is legally responsible for all aspects
  266  of the operation of the facility.
  267         (b)“Management or consulting company” means an individual
  268  or entity that contracts with, or receives a fee from, a
  269  licensee to provide any of the following services for a
  270  facility:
  271         1.Hiring or firing the administrator;
  272         2.Controlling or having control over the staffing levels
  273  at the facility;
  274         3.Having control over the budget of the facility; or
  275         4.Implementing and enforcing the policies and procedures
  276  of the facility.
  277         (c)“Passive investor” means an individual or entity that
  278  has an interest in a facility but does not participate in the
  279  decisionmaking or operations of the facility.
  280         (3) An exclusive cause of action for residents’ rights
  281  violation or negligence may not be asserted against an
  282  individual or entity other than the licensee, the licensee’s
  283  management or consulting company, the licensee’s managing
  284  employees, and any direct caregivers, whether employees or
  285  contractors, unless, after a motion for leave to amend hearing,
  286  the court or an arbitration panel determines that there is
  287  sufficient evidence in the record or proffered by the claimant
  288  to establish a reasonable showing that:
  289         (a) The individual or entity owed a duty of reasonable care
  290  to the resident and the individual or entity breached that duty;
  291  and
  292         (b) The breach of that duty is a legal cause of loss,
  293  injury, death, or damage to the resident.
  294  
  295  For purposes of this subsection, if, in a proposed amended
  296  pleading, it is asserted that such cause of action arose out of
  297  the conduct, transaction, or occurrence set forth or attempted
  298  to be set forth in the original pleading, the proposed amendment
  299  relates back to the original pleading.
  300         (4)(2) In any claim brought pursuant to this part alleging
  301  a violation of residents’ resident’s rights or negligence
  302  causing injury to or the death of a resident, the claimant has
  303  shall have the burden of proving, by a preponderance of the
  304  evidence, that:
  305         (a) The defendant owed a duty to the resident;
  306         (b) The defendant breached the duty to the resident;
  307         (c) The breach of the duty is a legal cause of loss,
  308  injury, death, or damage to the resident; and
  309         (d) The resident sustained loss, injury, death, or damage
  310  as a result of the breach.
  311  
  312  Nothing in This part does not shall be interpreted to create
  313  strict liability. A violation of the rights provided set forth
  314  in s. 429.28 or in any other standard or guidelines specified in
  315  this part or in any applicable administrative standard or
  316  guidelines of this state or a federal regulatory agency may
  317  shall be evidence of negligence but is shall not be considered
  318  negligence per se.
  319         (5) Notwithstanding this section, evidence of a violation
  320  described in subsection (4), including licensure inspections and
  321  surveys, cited deficiencies, plans of correction, or sanctions
  322  imposed by the agency, is admissible as evidence in a claim
  323  under this part only if the evidence relates to a material
  324  violation of the standards or guidelines specified in this part
  325  or an applicable administrative standard or guideline relating
  326  to:
  327         (a) The alleged occurrence and the particular individual
  328  whose injury or death is the basis for the claim; or
  329         (b) A finding by the agency which directly involves
  330  substantially similar conduct that occurred at the assisted
  331  living facility within a period of 12 months before the date of
  332  the alleged occurrence that is the basis for the claim.
  333         (6)(3) In a any claim brought pursuant to this section, a
  334  licensee, individual person, or entity has shall have a duty to
  335  exercise reasonable care. Reasonable care is that degree of care
  336  which a reasonably careful licensee, individual person, or
  337  entity would use under like circumstances.
  338         (7)(4) In a any claim for residents’ resident’s rights
  339  violation or negligence by a nurse licensed under part I of
  340  chapter 464, such nurse has shall have the duty to exercise care
  341  consistent with the prevailing professional standard of care for
  342  a nurse. The prevailing professional standard of care for a
  343  nurse is shall be that level of care, skill, and treatment
  344  which, in light of all relevant surrounding circumstances, is
  345  recognized as acceptable and appropriate by reasonably prudent
  346  similar nurses.
  347         (8)(5) Discovery of financial information for the purpose
  348  of determining the value of punitive damages may not be had
  349  unless the plaintiff shows the court by proffer or evidence in
  350  the record that a reasonable basis exists to support a claim for
  351  punitive damages.
  352         (9) An individual may provide an expert opinion on the
  353  appropriate degree of reasonable care that a reasonably careful
  354  licensee, individual, or entity would use under like
  355  circumstances in operating an assisted living facility as to
  356  administrative and other nonclinical issues if the individual
  357  has substantial knowledge in regard to operating an assisted
  358  living facility in the state by virtue of his or her training
  359  and experience during the 3 years immediately preceding the date
  360  of the alleged occurrence that is the basis for the claim.
  361         (10) An individual who holds an active and valid health
  362  care professional license issued by the Department of Health may
  363  provide an expert opinion concerning the prevailing professional
  364  standard of care that a reasonably prudent similar health care
  365  professional would use under the relevant surrounding
  366  circumstances. The expert witness must have devoted professional
  367  time during the 3 years immediately preceding the date of the
  368  alleged occurrence that is the basis for the claim to:
  369         (a) The active clinical practice of, or active clinical
  370  consultation with respect to, the care and treatment of patients
  371  residing in an assisted living facility;
  372         (b) The instruction of students or active work in an
  373  accredited health professional school or accredited residency or
  374  clinical research program with respect to the care and treatment
  375  of patients residing in an assisted living facility; or
  376         (c) The active clinical practice of, or active clinical
  377  consultation with respect to, the care and treatment of patients
  378  who are 65 years of age or older.
  379         (11) A physician licensed under chapter 458 or chapter 459
  380  who qualifies to provide an expert opinion under subsection (10)
  381  and who, by reason of active clinical practice or instruction of
  382  students, has knowledge of the applicable standard of care for
  383  physicians or other medical support staff, may give expert
  384  testimony in a negligence action with respect to the
  385  professional standard of care of such physicians or other
  386  medical support staff.
  387         (12) A nurse licensed to practice professional nursing
  388  under chapter 464 who qualifies to provide an expert opinion
  389  under subsection (10) and who, by reason of active clinical
  390  practice or instruction of students, has knowledge of the
  391  applicable standard of care for nurses or other medical support
  392  staff, may give expert testimony in a negligence action with
  393  respect to the professional standard of care of such nurses or
  394  other medical support staff.
  395         (13) An expert witness may not testify on a contingency fee
  396  basis.
  397         (14)(6) In addition to any other standards for punitive
  398  damages, any award of punitive damages must be reasonable in
  399  light of the actual harm suffered by the resident and the
  400  egregiousness of the conduct that caused the actual harm to the
  401  resident.
  402         (15)(7) The resident or the resident’s legal representative
  403  shall serve a copy of a any complaint alleging in whole or in
  404  part a violation of any rights specified in this part to the
  405  agency for Health Care Administration at the time of filing the
  406  initial complaint with the clerk of the court for the county in
  407  which the action is pursued. The requirement of providing a copy
  408  of the complaint to the agency does not impair the resident’s
  409  legal rights or ability to seek relief for his or her claim.
  410         (16) A passive investor is not liable under this section.
  411         (17) An exclusive cause of action for residents’ rights
  412  violation or negligence as specified under this part is not a
  413  claim for medical negligence; however, s. 768.21(8) applies to a
  414  claim alleging death of a resident.
  415         Section 6. Subsections (1) and (2), paragraph (a) of
  416  subsection (3), and subsection (5) of section 429.293, Florida
  417  Statutes, are amended to read:
  418         429.293 Presuit notice; investigation; notification of a
  419  claim for violation of residents’ rights violation or alleged
  420  negligence; claims evaluation procedure; informal discovery;
  421  review; settlement offer; mediation.—
  422         (1) As used in ss. 429.29-429.299 this section, the term:
  423         (a) “Claim for residents’ rights violation or negligence”
  424  means a negligence claim alleging injury to or the death of a
  425  resident arising out of an asserted violation of the rights of a
  426  resident under s. 429.28 or an asserted deviation from the
  427  applicable standard of care.
  428         (b) “Insurer” means any self-insurer authorized under s.
  429  627.357, liability insurance carrier, joint underwriting
  430  association, or uninsured prospective defendant.
  431         (2) Before Prior to filing a claim for residents’ rights a
  432  violation of a resident’s rights or a claim for negligence, a
  433  claimant alleging injury to or the death of a resident shall
  434  notify each prospective defendant by certified mail, return
  435  receipt requested, of an asserted violation of a resident’s
  436  rights provided in s. 429.28 or deviation from the standard of
  437  care. Such notification shall include an identification of the
  438  rights the prospective defendant has violated and the negligence
  439  alleged to have caused the incident or incidents and a brief
  440  description of the injuries sustained by the resident which are
  441  reasonably identifiable at the time of notice. The notice shall
  442  contain a certificate of counsel that counsel’s reasonable
  443  investigation gave rise to a good faith belief that grounds
  444  exist for an action against each prospective defendant.
  445  Corroboration of reasonable grounds to initiate a claim for
  446  residents’ rights violation or negligence as to each prospective
  447  defendant shall be provided by the claimant’s submission of a
  448  written expert opinion from an individual qualified as an expert
  449  pursuant to s. 400.023 at the time the notice of intent to file
  450  a claim is mailed, which stated opinion must corroborate
  451  reasonable grounds to support the claim.
  452         (3)(a) A No suit may not be filed for a period of 75 days
  453  after notice is mailed to any prospective defendant. During the
  454  75-day period, the prospective defendants or their insurers
  455  shall conduct an evaluation of the claim to determine the
  456  liability of each defendant and to evaluate the damages of the
  457  claimants. Each defendant or insurer of the defendant shall have
  458  a procedure for the prompt evaluation of claims during the 75
  459  day period. The procedure shall include one or more of the
  460  following:
  461         1. Internal review by a duly qualified facility risk
  462  manager or claims adjuster;
  463         2. Internal review by counsel for each prospective
  464  defendant;
  465         3. A quality assurance committee authorized under any
  466  applicable state or federal statutes or regulations; or
  467         4. Any other similar procedure that fairly and promptly
  468  evaluates the claims.
  469  
  470  Each defendant or insurer of the defendant shall evaluate the
  471  claim in good faith.
  472         (5) A No statement, discussion, written document, report,
  473  or other work product generated by presuit claims evaluation
  474  procedures under this section is not discoverable or admissible
  475  in any civil action for any purpose by the opposing party. All
  476  participants, including, but not limited to, physicians,
  477  investigators, witnesses, and employees or associates of the
  478  defendant, are immune from civil liability arising from
  479  participation in the presuit claims evaluation procedure. Any
  480  licensed physician or registered nurse may be retained by either
  481  party to provide an opinion regarding the reasonable basis of
  482  the claim. The presuit opinions of the expert are not
  483  discoverable or admissible in any civil action for any purpose
  484  by the opposing party.
  485         Section 7. Section 429.294, Florida Statutes, is amended to
  486  read:
  487         429.294 Availability of facility records for investigation
  488  of residents’ resident’s rights violations and defenses;
  489  penalty.—
  490         (1) Failure to provide complete copies of a resident’s
  491  records, including, but not limited to, all medical records and
  492  the resident’s chart, within the control or possession of the
  493  facility in accordance with s. 400.145, shall constitute
  494  evidence of failure of that party to comply with good faith
  495  discovery requirements and shall waive the good faith
  496  certificate and presuit notice requirements under this part by
  497  the requesting party.
  498         (2) A No facility may not shall be held liable for any
  499  civil damages as a result of complying with this section.
  500         (3) Upon receipt of a written request that complies with
  501  the federal Health Insurance Portability and Accountability Act
  502  of 1996 (HIPAA) and this section, a facility shall furnish to a
  503  competent resident, or to a representative of that resident who
  504  is authorized to make requests for the resident’s records under
  505  HIPAA or subsection (4), copies of the resident’s paper and
  506  electronic records in the facility’s possession. Such records
  507  must include any medical records and records concerning the care
  508  and treatment of the resident performed by the facility, except
  509  for progress notes and consultation report sections of a
  510  psychiatric nature. The facility shall provide the requested
  511  records within 14 working days after receipt of a request
  512  relating to a current resident or within 30 working days after
  513  receipt of a request relating to a former resident.
  514         (4) Requests for a deceased resident’s medical records
  515  under this section may be made by:
  516         (a) An individual appointed by a court to act as the
  517  personal representative, executor, administrator, curator, or
  518  temporary administrator of the deceased resident’s estate;
  519         (b) If a judicial appointment has not been made as provided
  520  in paragraph (a), an individual designated by the resident to
  521  act as his or her personal representative in a last will that is
  522  self-proved under s. 732.503; or
  523         (c) If a judicial appointment has not been made as provided
  524  in paragraph (a) or an individual has not been designated by the
  525  resident in a last will as provided in paragraph (b), only the
  526  following individuals:
  527         1. A surviving spouse of the resident.
  528         2. If there is no surviving spouse, a surviving child of
  529  the resident.
  530         3.If there is no surviving spouse or surviving child, a
  531  parent of the resident.
  532         (5) All requests for a deceased resident’s records made by
  533  an individual authorized under:
  534         (a) Paragraph (4)(a) must include a copy of the letter of
  535  administration and a copy of the court order appointing such
  536  individual as the personal representative of the deceased
  537  resident’s estate.
  538         (b) Paragraph (4)(b) must include a copy of the self-proved
  539  last will designating such individual as the personal
  540  representative of the deceased resident’s estate.
  541         (c) Paragraph (4)(c) must be accompanied by a letter from
  542  such individual’s attorney verifying such individual’s
  543  relationship to the deceased resident and the absence of a
  544  court-appointed personal representative and self-proved last
  545  will.
  546         (6) A facility may charge a reasonable fee for the copying
  547  of resident records. Such fee may not exceed $1 per page for the
  548  first 25 pages and 25 cents per page for each additional page.
  549  The facility shall allow an individual who is authorized to act
  550  on behalf of the resident to examine the original records,
  551  microfilms, or other suitable reproductions of the records in
  552  its possession upon any reasonable terms imposed by the facility
  553  to ensure that the records are not damaged, destroyed, or
  554  altered.
  555         (7) If a facility determines that disclosure of the records
  556  to the resident would be detrimental to the physical or mental
  557  health of the resident, the facility may refuse to furnish the
  558  records directly to the resident; however, upon such refusal,
  559  the resident’s records shall, upon written request by the
  560  resident, be furnished to any other medical provider designated
  561  by the resident.
  562         (8) A facility that in good faith and in reliance upon this
  563  section releases copies of records shall be indemnified by the
  564  party who requested the records pursuant to subsection (2) for
  565  any damages resulting from such release, may not be found to
  566  have violated any criminal or civil laws, and is not civilly
  567  liable to the resident, the resident’s estate, or any other
  568  individual for any damages resulting from such release.
  569         (9) A facility is not required to provide copies of a
  570  resident’s records requested pursuant to this section more than
  571  once per month, except that copies of physician reports in the
  572  resident’s records must be provided as often as necessary to
  573  allow the effective monitoring of the resident’s condition.
  574         (10) A facility may not be cited by the agency through the
  575  survey process for any alleged or actual noncompliance with any
  576  of the requirements of this section.
  577         (11) This section does not limit any right to obtain
  578  records by subpoena or other court process.
  579         Section 8. Section 429.295, Florida Statutes, is repealed.
  580         Section 9. Subsection (3) of section 429.296, Florida
  581  Statutes, is amended to read:
  582         429.296 Statute of limitations.—
  583         (3) This section shall apply to causes of action that have
  584  accrued prior to the effective date of this section; however,
  585  any such cause of action that would not have been barred under
  586  prior law may be brought within the time allowed by prior law or
  587  within 2 years after the effective date of this section,
  588  whichever is earlier, and will be barred thereafter. In actions
  589  where it can be shown that fraudulent concealment or intentional
  590  misrepresentation of fact prevented the discovery of the injury,
  591  the period of limitations is extended forward 2 years from the
  592  time that the injury is discovered with the exercise of due
  593  diligence, but in no event more than 4 years from the effective
  594  date of this section.
  595         Section 10. Section 429.297, Florida Statutes, is amended
  596  to read:
  597         429.297 Punitive damages; pleading; burden of proof.—
  598         (1) A In any action for damages brought under this part, no
  599  claim for punitive damages may not be brought under this part
  600  shall be permitted unless there is a reasonable showing by
  601  admissible evidence that has been submitted by the parties which
  602  provides in the record or proffered by the claimant which would
  603  provide a reasonable basis for recovery of such damages pursuant
  604  to this section.
  605         (a) The claimant may move to amend her or his complaint to
  606  assert a claim for punitive damages as allowed by the rules of
  607  civil procedure in accordance with evidentiary requirements
  608  provided in this section.
  609         (b)The court shall conduct a hearing to determine whether
  610  there is sufficient admissible evidence submitted by the parties
  611  to ensure that there is a reasonable basis to believe that the
  612  claimant, at trial, will be able to demonstrate by clear and
  613  convincing evidence that the recovery of such damages is
  614  warranted under a claim for direct liability as specified in
  615  subsection (2) or under a claim for vicarious liability as
  616  specified in subsection (3).
  617         (c) The rules of civil procedure shall be liberally
  618  construed so as to allow the claimant discovery of evidence
  619  which appears reasonably calculated to lead to admissible
  620  evidence on the issue of punitive damages. No Discovery of
  621  financial worth may not shall proceed until after the pleading
  622  concerning punitive damages is approved by the court permitted.
  623         (2) A defendant may be held liable for punitive damages
  624  only if the trier of fact, by based on clear and convincing
  625  evidence, finds that a specific individual or corporate
  626  defendant actively and knowingly participated in intentional
  627  misconduct or actively and knowingly engaged in conduct that
  628  constitutes gross negligence and contributed to the loss,
  629  damages, or injury suffered by the claimant the defendant was
  630  personally guilty of intentional misconduct or gross negligence.
  631  As used in this section, the term:
  632         (b)(a) “Intentional misconduct” means that the defendant
  633  against whom punitive damages are sought had actual knowledge of
  634  the wrongfulness of the conduct and the high probability that
  635  injury or damage to the claimant would result and, despite that
  636  knowledge, intentionally pursued that course of conduct,
  637  resulting in injury or damage.
  638         (a)(b) “Gross negligence” means that the defendant’s
  639  conduct was so reckless or wanting in care that it constituted a
  640  conscious disregard or indifference to the life, safety, or
  641  rights of individuals persons exposed to such conduct.
  642         (3) In the case of vicarious liability of an individual,
  643  employer, principal, corporation, or other legal entity,
  644  punitive damages may not be imposed for the conduct of an
  645  employee or agent unless only if the conduct of the employee or
  646  agent meets the criteria specified in subsection (2) and an
  647  officer, director, or manager of the actual employer,
  648  corporation, or legal entity actively and knowingly participated
  649  in or engaged in the specific conduct as provided in subsection
  650  (2):
  651         (a) The employer, principal, corporation, or other legal
  652  entity actively and knowingly participated in such conduct;
  653         (b) The officers, directors, or managers of the employer,
  654  principal, corporation, or other legal entity condoned,
  655  ratified, or consented to such conduct; or
  656         (c) The employer, principal, corporation, or other legal
  657  entity engaged in conduct that constituted gross negligence and
  658  that contributed to the loss, damages, or injury suffered by the
  659  claimant.
  660         (4) The plaintiff shall must establish at trial, by clear
  661  and convincing evidence, its entitlement to an award of punitive
  662  damages. The “greater weight of the evidence” burden of proof
  663  applies to a determination of the amount of damages.
  664         (5) This section is remedial in nature and shall take
  665  effect upon becoming a law.
  666         Section 11. Section 429.299, Florida Statutes, is created
  667  to read:
  668         429.299 Failure to satisfy a judgment or settlement
  669  agreement.—
  670         (1) Upon the entry by a court in this state of an adverse
  671  final judgment against a licensee as defined in s. 429.29(2)
  672  which arises from an award pursuant to s. 429.29, including an
  673  arbitration award, for a claim for residents’ rights violation
  674  or negligence, in contract or tort, or from noncompliance with
  675  the terms of a settlement agreement as determined by a court or
  676  arbitration panel which arises from a claim pursuant to s.
  677  429.29, the licensee shall pay the judgment creditor the entire
  678  amount of the judgment, award, or settlement and all accrued
  679  interest within 60 days after the date such judgment, award, or
  680  settlement becomes final and subject to execution unless
  681  otherwise mutually agreed to in writing by the parties. Failure
  682  to make such payment shall result in additional grounds that may
  683  be used by the agency for revoking a license or for denying a
  684  renewal application or a related party change of ownership
  685  application as provided in this section.
  686         (2) The agency is deemed notified of an unsatisfied
  687  judgment or settlement under subsection (1) when a certified
  688  copy of the judgment and a certified copy of a valid judgment
  689  lien certificate, filed in accordance with ss. 55.202 and
  690  55.203, are served to the agency by process server or received
  691  by certified mail, return receipt requested. Within 60 days
  692  after receiving such documents, the agency shall notify the
  693  licensee by certified mail, return receipt requested, that it is
  694  subject to disciplinary action unless, within 30 days after the
  695  date of mailing the notice, the licensee:
  696         (a) Shows proof that the unsatisfied judgment or settlement
  697  has been paid in the amount specified;
  698         (b) Shows proof of the existence of a payment plan mutually
  699  agreed upon by the parties in writing;
  700         (c) Furnishes the agency with a copy of a timely filed
  701  notice of appeal;
  702         (d) Furnishes the agency with a copy of a court order
  703  staying execution of the final judgment; or
  704         (e) Shows proof by submitting an order from a court or
  705  arbitration panel that is overseeing any action seeking
  706  indemnification from an insurance carrier or other party that
  707  the licensee believes is required to pay the award.
  708         (3) If the agency is placed on notice pursuant to
  709  subsection (2) and proof pursuant to subsection (2) is not
  710  provided by the licensee, the agency shall issue an emergency
  711  order pursuant to s. 120.60 declaring that the facility lacks
  712  the financial ability to operate and a notice of intent to
  713  revoke or deny a license.
  714         (4) After the agency is placed on notice pursuant to
  715  subsection (2), the following applies:
  716         (a) If the license is subject to renewal, the agency may
  717  deny the license renewal unless compliance with this section is
  718  achieved; and
  719         (b) If a change of ownership application for the facility
  720  at issue is submitted by the licensee, by an individual or
  721  entity identified as having a controlling interest in the
  722  licensee, or by a related party, the agency shall deny the
  723  change of ownership application unless compliance with this
  724  section is achieved.
  725         Section 12. The amendments to all sections made by this act
  726  shall apply to causes of action that accrue on or after July 1,
  727  2023.
  728         Section 13. This act shall take effect July 1, 2023.