Florida Senate - 2023                                    SB 1444
       
       
        
       By Senator Garcia
       
       
       
       
       
       36-01011B-23                                          20231444__
    1                        A bill to be entitled                      
    2         An act relating to the Agency for Persons with
    3         Disabilities; amending s. 393.063, F.S.; revising and
    4         defining terms; amending s. 393.0655, F.S.; revising
    5         background screening requirements for certain direct
    6         service providers; amending s. 393.067, F.S.;
    7         requiring the licensure of adult day training
    8         programs; conforming related application and licensure
    9         provisions to changes made by the act; providing for
   10         comprehensive emergency management plans of adult day
   11         training programs; providing for inspections of adult
   12         day training programs; requiring adult day training
   13         programs to adhere to specified rights; conforming
   14         provisions to changes made by the act; amending s.
   15         393.0673, F.S.; revising provisions related to
   16         disciplinary action against certain licensees to
   17         include licensed adult day training programs;
   18         providing that for purposes of disciplinary action for
   19         certain violations, a licensee is ultimately
   20         responsible for the care and supervision of clients in
   21         its facility or participants of the program; providing
   22         construction; revising grounds for denial of a
   23         licensure application; defining the term “good moral
   24         character”; authorizing the agency to immediately
   25         suspend or revoke the license of adult day training
   26         programs under certain circumstances; authorizing the
   27         agency to impose an immediate moratorium on service
   28         authorizations to licensed facilities and adult day
   29         training programs under certain circumstances;
   30         amending s. 393.0678, F.S.; conforming provisions to
   31         changes made by the act; making a technical
   32         correction; amending s. 393.135, F.S.; conforming
   33         provisions to changes made by the act; repealing s.
   34         393.18, F.S., relating to comprehensive transitional
   35         education programs; amending s. 394.875, F.S.;
   36         conforming a provision to changes made by the act;
   37         amending ss. 383.141, 400.063, and 1002.394, F.S.;
   38         conforming cross-references; providing an effective
   39         date.
   40          
   41  Be It Enacted by the Legislature of the State of Florida:
   42  
   43         Section 1. Subsections (1) and (10) of section 393.063,
   44  Florida Statutes, are amended, and a new subsection (25) is
   45  added to that section, to read:
   46         393.063 Definitions.—For the purposes of this chapter, the
   47  term:
   48         (1) “Adult day training” means a program of training
   49  services which takes that take place in a nonresidential
   50  setting, separate from the home or facility in which the client
   51  resides, and is are intended to support the participation of
   52  clients in daily, meaningful, and valued routines of the
   53  community. These services include, but are not limited to, the
   54  acquisition, retention, or improvement of self-help,
   55  socialization, and adaptive skills Such training may be provided
   56  in work-like settings that do not meet the definition of
   57  supported employment.
   58         (10) “Comprehensive transitional education program” means
   59  the program established in s. 393.18.
   60         (25) “Licensee” means an individual, a corporation, a
   61  partnership, a firm, an association, a governmental entity, or
   62  other entity that is issued a permit, registration, certificate,
   63  or license by the agency. The licensee is legally responsible
   64  for all aspects of the provider operation.
   65         Section 2. Subsection (1) of section 393.0655, Florida
   66  Statutes, is amended to read:
   67         393.0655 Screening of direct service providers.—
   68         (1) MINIMUM STANDARDS.—The agency shall require level 2
   69  employment screening pursuant to chapter 435 for direct service
   70  providers who are unrelated to their clients, including support
   71  coordinators, and managers and supervisors of residential
   72  facilities or adult day training comprehensive transitional
   73  education programs licensed under this chapter and any other
   74  person, including volunteers, who provide care or services, who
   75  have access to a client’s living areas, or who have access to a
   76  client’s funds or personal property. Background screening must
   77  shall include employment history checks as provided in s.
   78  435.03(1) and local criminal records checks through local law
   79  enforcement agencies.
   80         (a) A volunteer who assists on an intermittent basis for
   81  less than 10 hours per month does not have to be screened if a
   82  person who meets the screening requirement of this section is
   83  always present and has the volunteer within his or her line of
   84  sight.
   85         (b) Licensed physicians, nurses, or other professionals
   86  licensed and regulated by the Department of Health are not
   87  subject to background screening pursuant to this section if they
   88  are providing a service that is within their scope of licensed
   89  practice.
   90         (c) A person selected by the family or the individual with
   91  developmental disabilities and paid by the family or the
   92  individual to provide supports or services is not required to
   93  have a background screening under this section.
   94         (d) Persons 12 years of age or older, including family
   95  members, residing with a direct services provider who provides
   96  services to clients in his or her own place of residence are
   97  subject to background screening; however, such persons who are
   98  12 to 18 years of age shall be screened for delinquency records
   99  only.
  100         Section 3. Section 393.067, Florida Statutes, is amended to
  101  read:
  102         393.067 Facility licensure.—
  103         (1) The agency shall provide through its licensing
  104  authority and by rule license application procedures, provider
  105  qualifications, facility and client care standards, requirements
  106  for client records, requirements for staff qualifications and
  107  training, and requirements for monitoring foster care
  108  facilities, group home facilities, residential habilitation
  109  centers, and adult day training comprehensive transitional
  110  education programs that serve agency clients.
  111         (2) The agency shall conduct annual inspections and reviews
  112  of facilities and adult day training programs licensed under
  113  this section.
  114         (3) An application for a license under this section must be
  115  made to the agency on a form furnished by it and shall be
  116  accompanied by the appropriate license fee.
  117         (4) The application shall be under oath and shall contain
  118  the following:
  119         (a) The name and address of the applicant, if an applicant
  120  is an individual; if the applicant is a firm, partnership, or
  121  association, the name and address of each member thereof; if the
  122  applicant is a corporation, its name and address and the name
  123  and address of each director and each officer thereof; and the
  124  name by which the facility or program is to be known.
  125         (b) The location of the facility or adult day training
  126  program for which a license is sought.
  127         (c) The name of the person or persons under whose
  128  management or supervision the facility or adult day training
  129  program will be conducted.
  130         (d) The number and type of residents or clients for which
  131  maintenance, care, education, or treatment is to be provided by
  132  the facility or adult day training program.
  133         (e) The number and location of the component centers or
  134  units which will compose the comprehensive transitional
  135  education program.
  136         (f) A description of the types of services and treatment to
  137  be provided by the facility or adult day training program.
  138         (f)(g) Information relating to the number, experience, and
  139  training of the employees of the facility or adult day training
  140  program.
  141         (g)(h) Certification that the staff of the facility or
  142  adult day training program will receive training to detect,
  143  report, and prevent sexual abuse, abuse, neglect, exploitation,
  144  and abandonment, as defined in ss. 39.01 and 415.102, of
  145  residents and clients.
  146         (h)(i)Such other Information as the agency determines is
  147  necessary to carry out the provisions of this chapter.
  148         (5) As a prerequisite for issuance of an initial or renewal
  149  license, the applicant, and any manager, supervisor, and staff
  150  member of the direct service provider of a facility or adult day
  151  training program licensed under this section, must have
  152  submitted to background screening as required under s. 393.0655.
  153  A license may not be issued or renewed if the applicant or any
  154  manager, supervisor, or staff member of the direct service
  155  provider has a disqualifying offense revealed by failed
  156  background screenings as required under s. 393.0655. The agency
  157  shall determine by rule the frequency of background screening.
  158  The applicant shall submit with each initial or renewal
  159  application a signed affidavit under penalty of perjury stating
  160  that the applicant and any manager, supervisor, or staff member
  161  of the direct service provider is in compliance with all
  162  requirements for background screening.
  163         (6) A facility or program The applicant shall furnish
  164  satisfactory proof of financial ability to operate and conduct
  165  the facility or program in accordance with the requirements of
  166  this chapter and adopted rules.
  167         (7) The agency shall adopt rules establishing minimum
  168  standards for facilities and adult day training programs
  169  licensed under this section, including rules requiring
  170  facilities and adult day training programs to train staff to
  171  detect, report, and prevent sexual abuse, abuse, neglect,
  172  exploitation, and abandonment, as defined in ss. 39.01 and
  173  415.102, of residents and clients, minimum standards of quality
  174  and adequacy of client care, incident reporting requirements,
  175  and uniform firesafety standards established by the State Fire
  176  Marshal which are appropriate to the size of the facility or
  177  adult day training of the component centers or units of the
  178  program.
  179         (8) The agency, after consultation with the Division of
  180  Emergency Management, shall adopt rules for foster care
  181  facilities, group home facilities, and residential habilitation
  182  centers, and adult day training programs which establish minimum
  183  standards for the preparation and annual update of a
  184  comprehensive emergency management plan. At a minimum, the rules
  185  must provide for plan components that address emergency
  186  evacuation transportation; adequate sheltering arrangements;
  187  postdisaster activities, including emergency power, food, and
  188  water; postdisaster transportation; supplies; staffing;
  189  emergency equipment; individual identification of residents and
  190  transfer of records; and responding to family inquiries. The
  191  comprehensive emergency management plan for all facilities and
  192  adult day training comprehensive transitional education programs
  193  and for homes serving individuals who have a complex medical
  194  condition conditions is subject to review and approval by the
  195  local emergency management agency. During its review, the local
  196  emergency management agency shall ensure that the agency and the
  197  Division of Emergency Management, at a minimum, are given the
  198  opportunity to review the plan. Also, appropriate volunteer
  199  organizations must be given the opportunity to review the plan.
  200  The local emergency management agency shall complete its review
  201  within 60 days and either approve the plan or advise the
  202  facility or program of necessary revisions.
  203         (9) The agency may conduct unannounced inspections to
  204  determine compliance by foster care facilities, group home
  205  facilities, residential habilitation centers, and adult day
  206  training comprehensive transitional education programs with the
  207  applicable provisions of this chapter and the rules adopted
  208  pursuant hereto, including the rules adopted for training staff
  209  of a facility or an adult day training a program to detect,
  210  report, and prevent sexual abuse, abuse, neglect, exploitation,
  211  and abandonment, as defined in ss. 39.01 and 415.102, of
  212  residents and clients. The facility or adult day training
  213  program shall make copies of inspection reports available to the
  214  public upon request.
  215         (10) Each facility or program licensed under this section
  216  shall forward annually to the agency a true and accurate sworn
  217  statement of its costs of providing care to clients funded by
  218  the agency.
  219         (11) The agency may audit the records of any facility or
  220  program that it has reason to believe may not be in full
  221  compliance with the provisions of this section; provided that,
  222  any financial audit of such facility or program is shall be
  223  limited to the records of clients funded by the agency.
  224         (12) The agency shall establish, for the purpose of control
  225  of licensure costs, a uniform management information system and
  226  a uniform reporting system with uniform definitions and
  227  reporting categories.
  228         (13) Facilities and adult day training programs licensed
  229  under pursuant to this section shall adhere to all rights
  230  specified in s. 393.13, including those enumerated in s.
  231  393.13(4).
  232         (14) The agency may not authorize funds or services to an
  233  unlicensed facility or adult day training program that requires
  234  a license under this section may not receive state funds. A
  235  license for the operation of a facility or an adult day training
  236  program may shall not be renewed if the licensee has any
  237  outstanding fines assessed pursuant to this chapter wherein
  238  final adjudication of such fines has been entered.
  239         (15) The agency is not required to contract with facilities
  240  or adult day training programs licensed under pursuant to this
  241  chapter.
  242         Section 4. Section 393.0673, Florida Statutes, is amended
  243  to read:
  244         393.0673 Denial, suspension, or revocation of license;
  245  moratorium on admissions; administrative fines; procedures.—
  246         (1) The following constitute grounds for which the agency
  247  may take disciplinary action, including revoking or suspending
  248  revoke or suspend a license and imposing or impose an
  249  administrative fine, not to exceed $1,000 per violation per day,
  250  if:
  251         (a) The licensee has:
  252         1. Falsely represented or omitted a material fact in its
  253  license application submitted under s. 393.067;
  254         2. Had prior action taken against it under the Medicaid or
  255  Medicare program; or
  256         3. Failed to comply with the applicable requirements of
  257  this chapter or rules applicable to the licensee; or
  258         (b) The Department of Children and Families has verified
  259  that the licensee is responsible for the abuse, neglect, or
  260  abandonment of a child or the abuse, neglect, or exploitation of
  261  a vulnerable adult.
  262         (2) For purposes of disciplinary action under this section
  263  for verified findings of abuse, neglect, abandonment, or
  264  exploitation of a child or vulnerable adult, the licensee is
  265  responsible not only for administration of the facilities in
  266  compliance with the standards set out by statute and
  267  administrative rule, but is ultimately responsible for the care
  268  and supervision of the clients in the facility or the
  269  participants of the program.
  270         (a)A licensee may not delegate to others the ultimate
  271  responsibility for the safety of the clients in its care.
  272         (b)A licensee is subject to disciplinary action for an
  273  employee’s lapse in care or supervision of the clients at the
  274  facility or the participants of the program in which a verified
  275  finding of abuse, neglect, abandonment, or exploitation
  276  occurred.
  277         (c)Remedial action taken by the licensee does not affect
  278  the agency’s ability to impose disciplinary action for the
  279  underlying violation.
  280         (3) The agency may deny an application for licensure
  281  submitted under s. 393.067 if:
  282         (a) The applicant has:
  283         1. Falsely represented or omitted a material fact in its
  284  license application submitted under s. 393.067;
  285         2. Had prior action taken against it under the Medicaid or
  286  Medicare program;
  287         3. Failed to comply with the applicable requirements of
  288  this chapter or rules applicable to the applicant; or
  289         4. Previously had a license to operate a residential
  290  facility or adult day training program revoked by the agency,
  291  the Department of Children and Families, or the Agency for
  292  Health Care Administration; or
  293         (b) The Department of Children and Families has verified
  294  that the applicant is responsible for the abuse, neglect, or
  295  abandonment of a child or the abuse, neglect, or exploitation of
  296  a vulnerable adult; or
  297         (c)The agency has determined that there is clear and
  298  convincing evidence that the applicant is unqualified for a
  299  license because of a lack of good moral character. For purposes
  300  of this paragraph, the term “good moral character” means a
  301  personal history of honesty, fairness, and respect for the
  302  rights of others and for the laws of this state and the Federal
  303  Government.
  304         (4)(3) All hearings must shall be held within the county in
  305  which the licensee or applicant operates or applies for a
  306  license to operate a facility or adult day training program as
  307  defined herein.
  308         (5)(4) The agency, as a part of any final order issued by
  309  it under this chapter, may impose such fine as it deems proper,
  310  except that such fine may not exceed $1,000 for each violation.
  311  Each day a violation of this chapter occurs constitutes a
  312  separate violation and is subject to a separate fine, but in no
  313  event may the aggregate amount of any fine exceed $10,000. Fines
  314  paid by any facility licensee under the provisions of this
  315  subsection shall be deposited in the Health Care Trust Fund and
  316  expended as provided in s. 400.063.
  317         (6)(5) The agency may issue an order immediately suspending
  318  or revoking a license when it determines that any condition of
  319  in the facility or adult day training program presents a danger
  320  to the health, safety, or welfare of the residents in the
  321  facility or the program participants.
  322         (7)(6) The agency may impose an immediate moratorium on
  323  admissions to any facility or service authorizations to a
  324  facility or adult day training program when the agency
  325  determines that any condition of in the facility or adult day
  326  training program presents a threat to the health, safety, or
  327  welfare of the residents in the facility or the program
  328  participants.
  329         (8)(7) The agency shall establish by rule criteria for
  330  evaluating the severity of violations and for determining the
  331  amount of fines imposed.
  332         Section 5. Subsection (1) of section 393.0678, Florida
  333  Statutes, is amended to read:
  334         393.0678 Receivership proceedings.—
  335         (1) The agency may petition a court of competent
  336  jurisdiction for the appointment of a receiver for a
  337  comprehensive transitional education program, a residential
  338  habilitation center, or a group home facility owned and operated
  339  by a corporation or partnership when any of the following
  340  conditions exist:
  341         (a) Any person is operating a facility without a license
  342  and refuses to make application for a license as required by s.
  343  393.067.
  344         (b) The licensee is closing the facility or has informed
  345  the agency department that it intends to close the facility; and
  346  adequate arrangements have not been made for relocation of the
  347  residents within 7 days, exclusive of weekends and holidays, of
  348  the closing of the facility.
  349         (c) The agency determines that conditions exist in the
  350  facility which present an imminent danger to the health, safety,
  351  or welfare of the residents of the facility or which present a
  352  substantial probability that death or serious physical harm
  353  would result therefrom. Whenever possible, the agency shall
  354  facilitate the continued operation of the program.
  355         (d) The licensee cannot meet its financial obligations to
  356  provide food, shelter, care, and utilities. Evidence such as the
  357  issuance of bad checks or the accumulation of delinquent bills
  358  for such items as personnel salaries, food, drugs, or utilities
  359  constitutes prima facie evidence that the ownership of the
  360  facility lacks the financial ability to operate the home in
  361  accordance with the requirements of this chapter and all rules
  362  adopted promulgated thereunder.
  363         Section 6. Subsection (2) of section 393.135, Florida
  364  Statutes, is amended to read:
  365         393.135 Sexual misconduct prohibited; reporting required;
  366  penalties.—
  367         (2) A covered person who engages in sexual misconduct with
  368  an individual with a developmental disability who:
  369         (a) Resides in a residential facility, including any
  370  comprehensive transitional education program, developmental
  371  disabilities center, foster care facility, group home facility,
  372  intermediate care facility for the developmentally disabled, or
  373  residential habilitation center; or
  374         (b) Is eligible to receive services from the agency under
  375  this chapter,
  376  
  377  commits a felony of the second degree, punishable as provided in
  378  s. 775.082, s. 775.083, or s. 775.084. A covered person may be
  379  found guilty of violating this subsection without having
  380  committed the crime of sexual battery.
  381         Section 7. Section 393.18, Florida Statutes, is repealed.
  382         Section 8. Paragraph (c) of subsection (3) of section
  383  394.875, Florida Statutes, is amended to read:
  384         394.875 Crisis stabilization units, residential treatment
  385  facilities, and residential treatment centers for children and
  386  adolescents; authorized services; license required.—
  387         (3) The following are exempt from licensure as required in
  388  ss. 394.455-394.903:
  389         (c) Comprehensive transitional education programs licensed
  390  under s. 393.067.
  391         Section 9. Paragraph (b) of subsection (1) of section
  392  383.141, Florida Statutes, is amended to read:
  393         383.141 Prenatally diagnosed conditions; patient to be
  394  provided information; definitions; information clearinghouse;
  395  advisory council.—
  396         (1) As used in this section, the term:
  397         (b) “Developmental disability” includes Down syndrome and
  398  other developmental disabilities defined by s. 393.063 s.
  399  393.063(12).
  400         Section 10. Subsection (1) of section 400.063, Florida
  401  Statutes, is amended to read:
  402         400.063 Resident protection.—
  403         (1) The Health Care Trust Fund shall be used for the
  404  purpose of collecting and disbursing funds generated from the
  405  license fees and administrative fines as provided for in ss.
  406  393.0673(5) ss. 393.0673(4), 400.062(3), 400.121(2), and
  407  400.23(8). Such funds shall be for the sole purpose of paying
  408  for the appropriate alternate placement, care, and treatment of
  409  residents who are removed from a facility licensed under this
  410  part or a facility specified in s. 393.0678(1) in which the
  411  agency determines that existing conditions or practices
  412  constitute an immediate danger to the health, safety, or
  413  security of the residents. If the agency determines that it is
  414  in the best interest of the health, safety, or security of the
  415  residents to provide for an orderly removal of the residents
  416  from the facility, the agency may utilize such funds to maintain
  417  and care for the residents in the facility pending removal and
  418  alternative placement. The maintenance and care of the residents
  419  shall be under the direction and control of a receiver appointed
  420  pursuant to s. 393.0678(1) or s. 400.126(1). However, funds may
  421  be expended in an emergency upon a filing of a petition for a
  422  receiver, upon the declaration of a state of local emergency
  423  pursuant to s. 252.38(3)(a)5., or upon a duly authorized local
  424  order of evacuation of a facility by emergency personnel to
  425  protect the health and safety of the residents.
  426         Section 11. Paragraph (d) of subsection (2) of section
  427  1002.394, Florida Statutes, is amended to read:
  428         1002.394 The Family Empowerment Scholarship Program.—
  429         (2) DEFINITIONS.—As used in this section, the term:
  430         (d) “Disability” means, for a 3- or 4-year-old child or for
  431  a student in kindergarten to grade 12, autism spectrum disorder,
  432  as defined in the Diagnostic and Statistical Manual of Mental
  433  Disorders, Fifth Edition, published by the American Psychiatric
  434  Association; cerebral palsy, as defined in s. 393.063; Down
  435  syndrome, as defined in s. 393.063; an intellectual disability,
  436  as defined in s. 393.063; a speech impairment; a language
  437  impairment; an orthopedic impairment; any an other health
  438  impairment; an emotional or a behavioral disability; a specific
  439  learning disability, including, but not limited to, dyslexia,
  440  dyscalculia, or developmental aphasia; Phelan-McDermid syndrome,
  441  as defined in s. 393.063; Prader-Willi syndrome, as defined in
  442  s. 393.063; spina bifida, as defined in s. 393.063; being a
  443  high-risk child, as defined in s. 393.063(22)(a) s.
  444  393.063(23)(a); muscular dystrophy; Williams syndrome; rare
  445  diseases which affect patient populations of fewer than 200,000
  446  individuals in the United States, as defined by the National
  447  Organization for Rare Disorders; anaphylaxis; a hearing
  448  impairment, including deafness; a visual impairment, including
  449  blindness; traumatic brain injury; hospital or homebound; or
  450  identification as dual sensory impaired, as defined by rules of
  451  the State Board of Education and evidenced by reports from local
  452  school districts. The term “hospital or homebound” includes a
  453  student who has a medically diagnosed physical or psychiatric
  454  condition or illness, as defined by the state board in rule, and
  455  who is confined to the home or hospital for more than 6 months.
  456         Section 12. This act shall take effect October 1, 2024.