The Florida Senate

400.23  Rules; criteria; Nursing Home Advisory Committee; evaluation and rating system; fee for review of plans.--

(1)  It is the intent of the Legislature that rules published and enforced pursuant to this part shall include criteria by which a reasonable and consistent quality of resident care may be ensured and the results of such resident care can be demonstrated and by which safe and sanitary nursing homes can be provided. It is further intended that reasonable efforts be made to accommodate the needs and preferences of residents to enhance the quality of life in a nursing home. In addition, efforts shall be made to minimize the paperwork associated with the reporting and documentation requirements of these rules.

(2)  Pursuant to the intention of the Legislature, the agency, in consultation with the ¹Department of Health and Rehabilitative Services and the Department of Elderly Affairs, shall adopt and enforce rules to implement this part, which shall include reasonable and fair criteria in relation to:

(a)  The location and construction of the facility; including fire and life safety, plumbing, heating, lighting, ventilation, and other housing conditions which will ensure the health, safety, and comfort of residents, including an adequate call system. The agency shall establish standards for facilities and equipment to increase the extent to which new facilities and a new wing or floor added to an existing facility after July 1, 1999, are structurally capable of serving as shelters only for residents, staff, and families of residents and staff, and equipped to be self-supporting during and immediately following disasters. The Agency for Health Care Administration shall work with facilities licensed under this part and report to the Governor and Legislature by April 1, 1999, its recommendations for cost-effective renovation standards to be applied to existing facilities. In making such rules, the agency shall be guided by criteria recommended by nationally recognized reputable professional groups and associations with knowledge of such subject matters. The agency shall update or revise such criteria as the need arises. All nursing homes must comply with those lifesafety code requirements and building code standards applicable at the time of approval of their construction plans. The agency may require alterations to a building if it determines that an existing condition constitutes a distinct hazard to life, health, or safety. The agency shall adopt fair and reasonable rules setting forth conditions under which existing facilities undergoing additions, alterations, conversions, renovations, or repairs shall be required to comply with the most recent updated or revised standards.

(b)  The number and qualifications of all personnel, including management, medical, nursing, and other professional personnel, and nursing assistants, orderlies, and support personnel, having responsibility for any part of the care given residents.

(c)  All sanitary conditions within the facility and its surroundings, including water supply, sewage disposal, food handling, and general hygiene which will ensure the health and comfort of residents.

(d)  The equipment essential to the health and welfare of the residents.

(e)  A uniform accounting system.

(f)  The care, treatment, and maintenance of residents and measurement of the quality and adequacy thereof, based on rules developed under this chapter and the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health-Related Programs), Subtitle C (Nursing Home Reform), as amended.

(g)  The preparation and annual update of a comprehensive emergency management plan. The agency shall adopt rules establishing minimum criteria for the plan after consultation with the Department of Community Affairs. At a minimum, the rules must provide for plan components that address emergency evacuation transportation; adequate sheltering arrangements; postdisaster activities, including emergency power, food, and water; postdisaster transportation; supplies; staffing; emergency equipment; individual identification of residents and transfer of records; and responding to family inquiries. The comprehensive emergency management plan is subject to review and approval by the local emergency management agency. During its review, the local emergency management agency shall ensure that the following agencies, at a minimum, are given the opportunity to review the plan: the Department of Elderly Affairs, the ¹Department of Health and Rehabilitative Services, the Agency for Health Care Administration, and the Department of Community Affairs. Also, appropriate volunteer organizations must be given the opportunity to review the plan. The local emergency management agency shall complete its review within 60 days and either approve the plan or advise the facility of necessary revisions.

(3)  Rules developed pursuant to this section shall not restrict the use of shared staffing and shared programming in facilities which are part of retirement communities that provide multiple levels of care and otherwise meet the requirement of law or rule.

(4)  The agency, in collaboration with the ²Children's Medical Services Program Office of the ¹Department of Health and Rehabilitative Services, must, no later than December 31, 1993, adopt rules for minimum standards of care for persons under 21 years of age who reside in nursing home facilities. The rules must include a methodology for reviewing a nursing home facility under ss. 408.031-408.045 which serves only persons under 21 years of age.

(5)  Prior to conducting a survey of the facility, the survey team shall obtain a copy of the district nursing home and long-term care facility ombudsman council report on the facility. Problems noted in the report shall be incorporated into and followed up through the agency's inspection process. This procedure does not preclude the district nursing home and long-term care facility ombudsman council from requesting the agency to conduct a followup visit to the facility.

(6)  There is created the Nursing Home Advisory Committee, which shall consist of 15 members who are to be appointed by and report directly to the director of the agency. The membership is to include:

(a)  One researcher from a university center on aging.

(b)  Two representatives from the Florida Health Care Association.

(c)  Two representatives from the Florida Association of Homes for the Aging.

(d)  One representative from the Department of Elderly Affairs.

(e)  Five consumer representatives, at least two of whom serve on or are staff members of the state or a district nursing home and long-term care facility ombudsman council.

(f)  One representative from the Florida American Medical Directors Association.

(g)  One representative from the Florida Association of Directors of Nursing Administrators.

(h)  One representative from the Agency for Health Care Administration.

(i)  One representative from the nursing home industry at large who owns or operates a licensed nursing home facility in the state and is not a member of any state nursing home association.

At least one member shall be over 60 years of age.

(7)  The committee shall perform the following duties to assist the agency in ensuring compliance with the intent of the Legislature specified in subsection (1):

(a)  Assist in developing a nursing home rating system based on the requirements of rules developed under this chapter and the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health-Related Programs), Subtitle C (Nursing Home Reform), as amended.

(b)  Assist in developing surveyor guidelines and training to ensure the equitable application of the nursing home rating system.

(c)  Assist in developing guidelines to determine the scope and severity of noncompliance.

(d)  Identify burdensome paperwork that is not specifically related to resident care.

(e)  Advise the agency of proposed changes in statutes and rules necessary to ensure adequate care and services and the promotion and protection of residents' rights in long-term care facilities.

(8)  The agency shall, at least every 15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules adopted under this part as a basis for assigning a rating to that facility. The agency shall base its evaluation on the most recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations, and inspections. The agency shall assign one of the following ratings to each nursing home: standard, conditional, or superior.

(a)  A standard rating means that a facility has no class I or class II deficiencies, has corrected all class III deficiencies within the time established by the agency, and is in substantial compliance at the time of the survey with criteria established under this part, with rules adopted by the agency, and, if applicable, with rules adopted under the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health-Related Programs), Subtitle C (Nursing Home Reform), as amended.

(b)  A conditional rating means that a facility, due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part, with rules adopted by the agency, or, if applicable, with rules adopted under the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health-Related Programs), Subtitle C (Nursing Home Reform), as amended. If the facility comes into substantial compliance at the time of the followup survey, a standard rating may be issued. A facility assigned a conditional rating at the time of the relicensure survey may not qualify for consideration for a superior rating until the time of the next subsequent relicensure survey.

(c)  A superior rating means that a facility has no class I or class II deficiencies and has corrected all class III deficiencies within the time established by the agency and is in substantial compliance with the criteria established under this part and the rules adopted by the agency and, if applicable, with rules adopted pursuant to the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health-Related Programs), Subtitle C (Nursing Home Reform), as amended; and the facility exceeds the criteria for a standard rating through enhanced programs and services in the following areas:

1.  Nursing service.

2.  Dietary or nutritional services.

3.  Physical environment.

4.  Housekeeping and maintenance.

5.  Restorative therapies and self-help activities.

6.  Social services.

7.  Activities and recreational therapy.

(d)  In order to facilitate the development of special programs or facilitywide initiatives and promote creativity based on the needs and preferences of residents, the areas listed in paragraph (c) may be grouped or addressed individually by the licensee. However, a facility may not qualify for a superior rating if fewer than three programs or initiatives are developed to encompass the required areas.

(e)  In determining the rating and evaluating the overall quality of care and services, the agency shall consider the needs and limitations of residents in the facility and the results of interviews and surveys of a representative sampling of residents, families of residents, ombudsman council members in the district in which the facility is located, guardians of residents, and staff of the nursing home facility.

(f)  The current rating of each facility must be indicated in bold print on the face of the license. A list of the deficiencies of the facility shall be posted in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted to that facility. Licensees receiving a conditional rating for a facility shall prepare, within 10 working days after receiving notice of deficiencies, a plan for correction of all deficiencies and shall submit the plan to the agency for approval. Correction of all deficiencies, within the period approved by the agency, shall result in termination of the conditional rating. Failure to correct the deficiencies within a reasonable period approved by the agency shall be grounds for the imposition of sanctions pursuant to this part.

(g)  Each licensee shall post its license in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted to the facility. A licensee with a superior rating may advertise its rating in any nonpermanent medium and in accordance with rules adopted by the agency. A list of the facilities receiving a superior rating shall be distributed to the state and district ombudsman councils.

(h)  Not later than January 1, 1994, the agency shall adopt rules that:

1.  Establish uniform procedures for the evaluation of facilities.

2.  Provide criteria in the areas referenced in paragraph (c).

3.  Address other areas necessary for carrying out the intent of this section.

(i)  A license rated superior shall continue until it is replaced by a rating based on a later survey. A superior rating may be revoked at any time for failure to maintain substantial compliance with criteria established under this part, with rules adopted by the agency, or, if applicable, with rules adopted under the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health-Related Programs), Subtitle C (Nursing Home Reform), as amended, or for failure to exceed the criteria specified for any area as listed in paragraph (c).

(j)  A superior rating is not transferable to another license, except when an existing facility is being relicensed in the name of an entity related to the current licenseholder by common ownership or control and there will be no change in the management, operation, or programs at the facility as a result of the relicensure.

(9)  The agency shall adopt rules to provide that, when the criteria established under subsection (2) are not met, such deficiencies shall be classified according to the nature of the deficiency. The agency shall indicate the classification on the face of the notice of deficiencies as follows:

(a)  Class I deficiencies are those which the agency determines present an imminent danger to the residents or guests of the nursing home facility or a substantial probability that death or serious physical harm would result therefrom. The condition or practice constituting a class I violation shall be abated or eliminated immediately, unless a fixed period of time, as determined by the agency, is required for correction. Notwithstanding s. 400.121(2), a class I deficiency is subject to a civil penalty in an amount not less than $5,000 and not exceeding $10,000 for each and every deficiency. A fine may be levied notwithstanding the correction of the deficiency.

(b)  Class II deficiencies are those which the agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility residents, other than class I deficiencies. A class II deficiency is subject to a civil penalty in an amount not less than $1,000 and not exceeding $5,000 for each and every deficiency. A citation for a class II deficiency shall specify the time within which the deficiency is required to be corrected. If a class II deficiency is corrected within the time specified, no civil penalty shall be imposed, unless it is a repeated offense.

(c)  Class III deficiencies are those which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than class I or class II deficiencies. A class III deficiency shall be subject to a civil penalty of not less than $500 and not exceeding $1,000 for each and every deficiency. A citation for a class III deficiency shall specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, no civil penalty shall be imposed, unless it is a repeated offense.

(10)  Civil penalties paid by any licensee under subsection (9) shall be deposited in the Health Care Trust Fund and expended as provided in s. 400.063.

(11)  The agency shall approve or disapprove the plans and specifications within 60 days after receipt of the final plans and specifications. The agency may be granted one 15-day extension for the review period, if the director of the agency so approves. If the agency fails to act within the specified time, it shall be deemed to have approved the plans and specifications. When the agency disapproves plans and specifications, it shall set forth in writing the reasons for disapproval. Conferences and consultations may be provided as necessary.

(12)  The agency is authorized to charge an initial fee of $2,000 for review of plans and construction on all projects, no part of which is refundable. The agency may also collect a fee, not to exceed 1 percent of the estimated construction cost or the actual cost of review, whichever is less, for the portion of the review which encompasses initial review through the initial revised construction document review. The agency is further authorized to collect its actual costs on all subsequent portions of the review and construction inspections. Initial fee payment shall accompany the initial submission of plans and specifications. Any subsequent payment that is due is payable upon receipt of the invoice from the agency. Notwithstanding any other provisions of law to the contrary, all money received by the agency pursuant to the provisions of this section shall be deemed to be trust funds, to be held and applied solely for the operations required under this section.

(13)  This section may not be used to increase the total Medicaid funding paid as incentives for facilities receiving a superior or standard rating.

History.--s. 22, ch. 69-309; ss. 19, 35, ch. 69-106; s. 19, ch. 70-361; s. 3, ch. 76-168; s. 7, ch. 76-201; s. 2, ch. 76-252; s. 2, ch. 77-188; s. 13, ch. 77-401; s. 1, ch. 77-457; s. 1, ch. 78-393; ss. 8, 9, ch. 79-268; ss. 3, 12, ch. 80-198; ss. 1, 2, ch. 80-211; s. 251, ch. 81-259; ss. 2, 3, ch. 81-318; ss. 30, 79, 83, ch. 83-181; s. 2, ch. 86-253; s. 1, ch. 90-125; ss. 9, 77, ch. 91-282; s. 30, ch. 93-177; s. 25, ch. 93-211; ss. 29, 49, ch. 93-217; s. 42, ch. 98-89.

¹Note.--The Department of Health and Rehabilitative Services was redesignated as the Department of Children and Family Services by s. 5, ch. 96-403, and the Department of Health was created by s. 8, ch. 96-403.

²Note.--Section 5, ch. 96-403, deletes all references to "Children's Medical Services Program Office" from s. 20.19.