Florida Senate - 2009 SB 1562
By Senator Bennett
21-01558-09 20091562__
1 A bill to be entitled
2 An act relating to the inspection of nursing homes;
3 amending ss. 381.006, 381.0072, and 381.0098, F.S.;
4 providing that nursing homes that are inspected by the
5 Agency for Health Care Administration are exempt from
6 inspection by the Department of Health; amending s.
7 400.0061, F.S.; conforming a provision to changes made
8 by the act; amending s. 400.0065, F.S.; clarifying
9 that any person may make a complaint against a long
10 term care facility, including an employee of that
11 facility; amending ss. 400.0067, 400.0069, and
12 400.0071, F.S.; conforming provisions to changes made
13 by the act; clarifying that any person may make a
14 complaint against a long-term care facility, including
15 an employee of that facility; repealing s. 400.0074,
16 F.S., relating to onsite administrative assessments of
17 nursing homes, assisted living facilities, and adult
18 family-care homes conducted by the local ombudsman
19 council; amending s. 400.121, F.S.; conforming
20 provisions to changes made by the act relating to
21 classifications of deficiencies; amending s. 400.141,
22 F.S.; conforming provisions to changes made by the act
23 relating to classifications of deficiencies and the
24 Gold Seal Program; amending s. 400.19, F.S.;
25 conforming provisions to changes made by the act
26 relating to classifications of deficiencies; repealing
27 s. 400.191, F.S., relating to a requirement that the
28 agency make available to the public, distribute, and
29 post reports and records concerning licensed nursing
30 homes operating in the state; amending s. 400.195,
31 F.S.; revising agency reporting requirements; amending
32 s. 400.23, F.S.; conforming a provision to changes
33 made by the act; deleting the classifications for
34 deficiencies; requiring the agency to indicate the
35 level of seriousness of deficiencies under federal
36 requirements specified by the Centers for Medicare and
37 Medicaid Services; repealing s. 400.235, F.S.,
38 relating to nursing home quality and licensure status
39 and the Gold Seal Program; amending s. 408.035, F.S.;
40 conforming a provision to changes made by the act;
41 repealing s. 409.912(15)(d), F.S., relating to the
42 requirement by the staff of the Comprehensive
43 Assessment and Review for Long-Term Services to
44 conduct an assessment and review of a sample of
45 individuals whose nursing home stay is expected to
46 exceed a certain number of days; amending s. 633.081,
47 F.S.; providing that nursing homes that are inspected
48 by the Agency for Health Care Administration are
49 exempt from inspection by the State Fire Marshal under
50 certain circumstances; providing an effective date.
51
52 Be It Enacted by the Legislature of the State of Florida:
53
54 Section 1. Subsection (16) of section 381.006, Florida
55 Statutes, is amended to read:
56 381.006 Environmental health.—The department shall conduct
57 an environmental health program as part of fulfilling the
58 state's public health mission. The purpose of this program is to
59 detect and prevent disease caused by natural and manmade factors
60 in the environment. The environmental health program shall
61 include, but not be limited to:
62 (16) A group-care-facilities function, where a group care
63 facility means any public or private school, housing, building
64 or buildings, section of a building, or distinct part of a
65 building or other place, whether operated for profit or not,
66 which undertakes, through its ownership or management, to
67 provide one or more personal services, care, protection, and
68 supervision to persons who require such services and who are not
69 related to the owner or administrator. The department may adopt
70 rules necessary to protect the health and safety of residents,
71 staff, and patrons of group care facilities, such as child care
72 facilities, family day care homes, assisted living facilities,
73 adult day care centers, adult family care homes, hospices,
74 residential treatment facilities, crisis stabilization units,
75 pediatric extended care centers, intermediate care facilities
76 for the developmentally disabled, group care homes, and, jointly
77 with the Department of Education, private and public schools.
78 These rules may include definitions of terms; provisions
79 relating to operation and maintenance of facilities, buildings,
80 grounds, equipment, furnishings, and occupant-space
81 requirements; lighting; heating, cooling, and ventilation; food
82 service; water supply and plumbing; sewage; sanitary facilities;
83 insect and rodent control; garbage; safety; personnel health,
84 hygiene, and work practices; and other matters the department
85 finds are appropriate or necessary to protect the safety and
86 health of the residents, staff, or patrons. The department may
87 not adopt rules that conflict with rules adopted by the
88 licensing or certifying agency. The department may enter and
89 inspect at reasonable hours to determine compliance with
90 applicable statutes or rules. However, nursing homes that are
91 licensed under part II of chapter 400 and inspected by the
92 Agency for Health Care Administration as part of state licensing
93 requirements and federal certification requirements are exempt
94 from inspection by the Department of Health. In addition to any
95 sanctions that the department may impose for violations of rules
96 adopted under this section, the department shall also report
97 such violations to any agency responsible for licensing or
98 certifying the group care facility. The licensing or certifying
99 agency may also impose any sanction based solely on the findings
100 of the department.
101 The department may adopt rules to carry out the provisions of
102 this section.
103 Section 2. Paragraph (a) of subsection (2) of section
104 381.0072, Florida Statutes, is amended to read:
105 381.0072 Food service protection.—It shall be the duty of
106 the Department of Health to adopt and enforce sanitation rules
107 consistent with law to ensure the protection of the public from
108 food-borne illness. These rules shall provide the standards and
109 requirements for the storage, preparation, serving, or display
110 of food in food service establishments as defined in this
111 section and which are not permitted or licensed under chapter
112 500 or chapter 509.
113 (2) DUTIES.—
114 (a) The department shall adopt rules, including definitions
115 of terms which are consistent with law prescribing minimum
116 sanitation standards and manager certification requirements as
117 prescribed in s. 509.039, and which shall be enforced in food
118 service establishments as defined in this section. The
119 sanitation standards must address the construction, operation,
120 and maintenance of the establishment; lighting, ventilation,
121 laundry rooms, lockers, use and storage of toxic materials and
122 cleaning compounds, and first-aid supplies; plan review; design,
123 construction, installation, location, maintenance, sanitation,
124 and storage of food equipment and utensils; employee training,
125 health, hygiene, and work practices; food supplies, preparation,
126 storage, transportation, and service, including access to the
127 areas where food is stored or prepared; and sanitary facilities
128 and controls, including water supply and sewage disposal;
129 plumbing and toilet facilities; garbage and refuse collection,
130 storage, and disposal; and vermin control. Public and private
131 schools, if the food service is operated by school employees;
132 hospitals licensed under chapter 395; nursing homes licensed
133 under part II of chapter 400; child care facilities as defined
134 in s. 402.301; residential facilities colocated with a nursing
135 home or hospital, if all food is prepared in a central kitchen
136 that complies with nursing or hospital regulations; and bars and
137 lounges, as defined by department rule, are exempt from the
138 rules developed for manager certification. The department shall
139 administer a comprehensive inspection, monitoring, and sampling
140 program to ensure such standards are maintained; however,
141 nursing homes that are licensed under part II of chapter 400 and
142 inspected by the Agency for Health Care Administration as part
143 of state licensing requirements and federal certification
144 requirements are exempt from inspection by the department. With
145 respect to food service establishments permitted or licensed
146 under chapter 500 or chapter 509, the department shall assist
147 the Division of Hotels and Restaurants of the Department of
148 Business and Professional Regulation and the Department of
149 Agriculture and Consumer Services with rulemaking by providing
150 technical information.
151 Section 3. Paragraph (b) of subsection (6) of section
152 381.0098, Florida Statutes, is amended to read:
153 381.0098 Biomedical waste.—
154 (6) TRACKING SYSTEM.—The department shall adopt rules for a
155 system of tracking biomedical waste.
156 (b) Inspections may be conducted for purposes of compliance
157 with this section. Any such inspection shall be commenced and
158 completed with reasonable promptness. However, nursing homes
159 that are licensed under part II of chapter 400 and inspected by
160 the Agency for Health Care Administration as part of state
161 licensing requirements and federal certification requirements
162 are exempt from inspection by the department. If the officer,
163 employee, or representative of the department obtains any
164 samples, prior to leaving the premises he or she shall give the
165 owner, operator, or agent in charge a receipt describing the
166 sample obtained.
167 Section 4. Subsection (2) of section 400.0061, Florida
168 Statutes, is amended to read:
169 400.0061 Legislative findings and intent; long-term care
170 facilities.—
171 (2) It is the intent of the Legislature, therefore, to
172 utilize voluntary citizen ombudsman councils under the
173 leadership of the ombudsman, and through them to operate an
174 ombudsman program which shall, without interference by any
175 executive agency, undertake to discover, investigate, and
176 determine the presence of conditions or individuals which
177 constitute a threat to the rights, health, safety, or welfare of
178 the residents of long-term care facilities. To ensure that the
179 effectiveness and efficiency of such investigations are not
180 impeded by advance notice or delay, the Legislature intends that
181 the ombudsman and ombudsman councils and their designated
182 representatives not be required to obtain warrants in order to
183 enter into or conduct investigations or onsite administrative
184 assessments of long-term care facilities. It is the further
185 intent of the Legislature that the environment in long-term care
186 facilities be conducive to the dignity and independence of
187 residents and that investigations by ombudsman councils shall
188 further the enforcement of laws, rules, and regulations that
189 safeguard the health, safety, and welfare of residents.
190 Section 5. Paragraph (a) of subsection (1) of section
191 400.0065, Florida Statutes, is amended to read:
192 400.0065 State Long-Term Care Ombudsman; duties and
193 responsibilities.—
194 (1) The purpose of the Office of State Long-Term Care
195 Ombudsman shall be to:
196 (a) Identify, investigate, and resolve complaints made by
197 or on behalf of residents of long-term care facilities,
198 regardless of the person who makes the complaint, including an
199 employee, relating to actions or omissions by providers or
200 representatives of providers of long-term care services, other
201 public or private agencies, guardians, or representative payees
202 which that may adversely affect the health, safety, welfare, or
203 rights of the residents.
204 Section 6. Paragraphs (b) and (d) of subsection (2) of
205 section 400.0067, Florida Statutes, are amended to read:
206 400.0067 State Long-Term Care Ombudsman Council; duties;
207 membership.—
208 (2) The State Long-Term Care Ombudsman Council shall:
209 (b) Serve as an appellate body in receiving from the local
210 councils complaints not resolved at the local level. Any
211 individual member or members of the state council may enter any
212 long-term care facility involved in an appeal, pursuant to the
213 conditions specified in s. 400.0074(2).
214 (d) Assist the ombudsman in eliciting, receiving,
215 responding to, and resolving complaints made by or on behalf of
216 residents regardless of the person who makes the complaint,
217 including an employee of a long-term care facility.
218 Section 7. Paragraph (c) of subsection (2) and subsection
219 (3) of section 400.0069, Florida Statutes, are amended to read:
220 400.0069 Local long-term care ombudsman councils; duties;
221 membership.—
222 (2) The duties of the local councils are to:
223 (c) Elicit, receive, investigate, respond to, and resolve
224 complaints made by or on behalf of residents regardless of the
225 person who makes the complaint, including an employee of a long
226 term care facility.
227 (3) In order to carry out the duties specified in
228 subsection (2), a member of a local council is authorized to
229 enter any long-term care facility without notice or first
230 obtaining a warrant, subject to the provisions of s.
231 400.0074(2).
232 Section 8. Section 400.0071, Florida Statutes, is amended
233 to read:
234 400.0071 State Long-Term Care Ombudsman Program complaint
235 procedures.—The department shall adopt rules implementing state
236 and local complaint procedures. The rules must include
237 procedures for:
238 (1) Receiving complaints against a long-term care facility
239 or an employee of a long-term care facility regardless of the
240 person who makes the complaint.
241 (2) Conducting investigations of a long-term care facility
242 or an employee of a long-term care facility subsequent to
243 receiving a complaint.
244 (3) Conducting onsite administrative assessments of long
245 term care facilities.
246 Section 9. Section 400.0074, Florida Statutes, is repealed.
247 Section 10. Subsection (3) of section 400.121, Florida
248 Statutes, is amended to read:
249 400.121 Denial, suspension, revocation of license;
250 administrative fines; procedure; order to increase staffing.—
251 (3) The agency shall revoke or deny a nursing home license
252 if the licensee or controlling interest operates a facility in
253 this state that:
254 (a) Has had two moratoria issued pursuant to this part or
255 part II of chapter 408 which are imposed by final order for
256 substandard quality of care, as defined by 42 C.F.R. part 483,
257 within any 30-month period; or
258 (b) Is conditionally licensed for 180 or more continuous
259 days.;
260 (c) Is cited for two class I deficiencies arising from
261 unrelated circumstances during the same survey or investigation;
262 or
263 (d) Is cited for two class I deficiencies arising from
264 separate surveys or investigations within a 30-month period.
265 The licensee may present factors in mitigation of revocation,
266 and the agency may make a determination not to revoke a license
267 based upon a showing that revocation is inappropriate under the
268 circumstances.
269 Section 11. Section 400.141, Florida Statutes, is amended
270 to read:
271 400.141 Administration and management of nursing home
272 facilities.—Every licensed facility shall comply with all
273 applicable standards and rules of the agency and shall:
274 (1) Be under the administrative direction and charge of a
275 licensed administrator.
276 (2) Appoint a medical director licensed pursuant to chapter
277 458 or chapter 459. The agency may establish by rule more
278 specific criteria for the appointment of a medical director.
279 (3) Have available the regular, consultative, and emergency
280 services of physicians licensed by the state.
281 (4) Provide for resident use of a community pharmacy as
282 specified in s. 400.022(1)(q). Any other law to the contrary
283 notwithstanding, a registered pharmacist licensed in Florida,
284 that is under contract with a facility licensed under this
285 chapter or chapter 429, shall repackage a nursing facility
286 resident's bulk prescription medication which has been packaged
287 by another pharmacist licensed in any state in the United States
288 into a unit dose system compatible with the system used by the
289 nursing facility, if the pharmacist is requested to offer such
290 service. In order to be eligible for the repackaging, a resident
291 or the resident's spouse must receive prescription medication
292 benefits provided through a former employer as part of his or
293 her retirement benefits, a qualified pension plan as specified
294 in s. 4972 of the Internal Revenue Code, a federal retirement
295 program as specified under 5 C.F.R. s. 831, or a long-term care
296 policy as defined in s. 627.9404(1). A pharmacist who correctly
297 repackages and relabels the medication and the nursing facility
298 which correctly administers such repackaged medication under the
299 provisions of this subsection shall not be held liable in any
300 civil or administrative action arising from the repackaging. In
301 order to be eligible for the repackaging, a nursing facility
302 resident for whom the medication is to be repackaged shall sign
303 an informed consent form provided by the facility which includes
304 an explanation of the repackaging process and which notifies the
305 resident of the immunities from liability provided herein. A
306 pharmacist who repackages and relabels prescription medications,
307 as authorized under this subsection, may charge a reasonable fee
308 for costs resulting from the implementation of this provision.
309 (5) Provide for the access of the facility residents to
310 dental and other health-related services, recreational services,
311 rehabilitative services, and social work services appropriate to
312 their needs and conditions and not directly furnished by the
313 licensee. When a geriatric outpatient nurse clinic is conducted
314 in accordance with rules adopted by the agency, outpatients
315 attending such clinic shall not be counted as part of the
316 general resident population of the nursing home facility, nor
317 shall the nursing staff of the geriatric outpatient clinic be
318 counted as part of the nursing staff of the facility, until the
319 outpatient clinic load exceeds 15 a day.
320 (6) Be allowed and encouraged by the agency to provide
321 other needed services under certain conditions. If the facility
322 has a standard licensure status, and has had no class I or class
323 II deficiencies during the past 2 years or has been awarded a
324 Gold Seal under the program established in s. 400.235, it may be
325 encouraged by the agency to provide services, including, but not
326 limited to, respite and adult day services, which enable
327 individuals to move in and out of the facility. A facility is
328 not subject to any additional licensure requirements for
329 providing these services. Respite care may be offered to persons
330 in need of short-term or temporary nursing home services.
331 Respite care must be provided in accordance with this part and
332 rules adopted by the agency. However, the agency shall, by rule,
333 adopt modified requirements for resident assessment, resident
334 care plans, resident contracts, physician orders, and other
335 provisions, as appropriate, for short-term or temporary nursing
336 home services. The agency shall allow for shared programming and
337 staff in a facility which meets minimum standards and offers
338 services pursuant to this subsection, but, if the facility is
339 cited for deficiencies in patient care, may require additional
340 staff and programs appropriate to the needs of service
341 recipients. A person who receives respite care may not be
342 counted as a resident of the facility for purposes of the
343 facility's licensed capacity unless that person receives 24-hour
344 respite care. A person receiving either respite care for 24
345 hours or longer or adult day services must be included when
346 calculating minimum staffing for the facility. Any costs and
347 revenues generated by a nursing home facility from
348 nonresidential programs or services shall be excluded from the
349 calculations of Medicaid per diems for nursing home
350 institutional care reimbursement.
351 (7) If the facility has a standard license or is a Gold
352 Seal facility, exceeds the minimum required hours of licensed
353 nursing and certified nursing assistant direct care per resident
354 per day, and is part of a continuing care facility licensed
355 under chapter 651 or a retirement community that offers other
356 services pursuant to part III of this chapter or part I or part
357 III of chapter 429 on a single campus, be allowed to share
358 programming and staff. At the time of inspection and in the
359 semiannual report required pursuant to subsection (15), a
360 continuing care facility or retirement community that uses this
361 option must demonstrate through staffing records that minimum
362 staffing requirements for the facility were met. Licensed nurses
363 and certified nursing assistants who work in the nursing home
364 facility may be used to provide services elsewhere on campus if
365 the facility exceeds the minimum number of direct care hours
366 required per resident per day and the total number of residents
367 receiving direct care services from a licensed nurse or a
368 certified nursing assistant does not cause the facility to
369 violate the staffing ratios required under s. 400.23(3)(a).
370 Compliance with the minimum staffing ratios shall be based on
371 total number of residents receiving direct care services,
372 regardless of where they reside on campus. If the facility
373 receives a conditional license, it may not share staff until the
374 conditional license status ends. This subsection does not
375 restrict the agency's authority under federal or state law to
376 require additional staff if a facility is cited for deficiencies
377 in care which are caused by an insufficient number of certified
378 nursing assistants or licensed nurses. The agency may adopt
379 rules for the documentation necessary to determine compliance
380 with this provision.
381 (8) Maintain the facility premises and equipment and
382 conduct its operations in a safe and sanitary manner.
383 (9) If the licensee furnishes food service, provide a
384 wholesome and nourishing diet sufficient to meet generally
385 accepted standards of proper nutrition for its residents and
386 provide such therapeutic diets as may be prescribed by attending
387 physicians. In making rules to implement this subsection, the
388 agency shall be guided by standards recommended by nationally
389 recognized professional groups and associations with knowledge
390 of dietetics.
391 (10) Keep full records of resident admissions and
392 discharges; medical and general health status, including medical
393 records, personal and social history, and identity and address
394 of next of kin or other persons who may have responsibility for
395 the affairs of the residents; and individual resident care plans
396 including, but not limited to, prescribed services, service
397 frequency and duration, and service goals. The records shall be
398 open to inspection by the agency.
399 (11) Keep such fiscal records of its operations and
400 conditions as may be necessary to provide information pursuant
401 to this part.
402 (12) Furnish copies of personnel records for employees
403 affiliated with such facility, to any other facility licensed by
404 this state requesting this information pursuant to this part.
405 Such information contained in the records may include, but is
406 not limited to, disciplinary matters and any reason for
407 termination. Any facility releasing such records pursuant to
408 this part shall be considered to be acting in good faith and may
409 not be held liable for information contained in such records,
410 absent a showing that the facility maliciously falsified such
411 records.
412 (13) Publicly display a poster provided by the agency
413 containing the names, addresses, and telephone numbers for the
414 state's abuse hotline, the State Long-Term Care Ombudsman, the
415 Agency for Health Care Administration consumer hotline, the
416 Advocacy Center for Persons with Disabilities, the Florida
417 Statewide Advocacy Council, and the Medicaid Fraud Control Unit,
418 with a clear description of the assistance to be expected from
419 each.
420 (14) Submit to the agency the information specified in s.
421 400.071(1)(b) for a management company within 30 days after the
422 effective date of the management agreement.
423 (15) Submit semiannually to the agency, or more frequently
424 if requested by the agency, information regarding facility
425 staff-to-resident ratios, staff turnover, and staff stability,
426 including information regarding certified nursing assistants,
427 licensed nurses, the director of nursing, and the facility
428 administrator. For purposes of this reporting:
429 (a) Staff-to-resident ratios must be reported in the
430 categories specified in s. 400.23(3)(a) and applicable rules.
431 The ratio must be reported as an average for the most recent
432 calendar quarter.
433 (b) Staff turnover must be reported for the most recent 12
434 month period ending on the last workday of the most recent
435 calendar quarter prior to the date the information is submitted.
436 The turnover rate must be computed quarterly, with the annual
437 rate being the cumulative sum of the quarterly rates. The
438 turnover rate is the total number of terminations or separations
439 experienced during the quarter, excluding any employee
440 terminated during a probationary period of 3 months or less,
441 divided by the total number of staff employed at the end of the
442 period for which the rate is computed, and expressed as a
443 percentage.
444 (c) The formula for determining staff stability is the
445 total number of employees that have been employed for more than
446 12 months, divided by the total number of employees employed at
447 the end of the most recent calendar quarter, and expressed as a
448 percentage.
449 (d) A nursing facility that has failed to comply with state
450 minimum-staffing requirements for 2 consecutive days is
451 prohibited from accepting new admissions until the facility has
452 achieved the minimum-staffing requirements for a period of 6
453 consecutive days. For the purposes of this paragraph, any person
454 who was a resident of the facility and was absent from the
455 facility for the purpose of receiving medical care at a separate
456 location or was on a leave of absence is not considered a new
457 admission. Failure to impose such an admissions moratorium
458 constitutes a class II deficiency.
459 (e) A nursing facility which does not have a conditional
460 license may be cited for failure to comply with the standards in
461 s. 400.23(3)(a)1.a. only if it has failed to meet those
462 standards on 2 consecutive days or if it has failed to meet at
463 least 97 percent of those standards on any one day.
464 (f) A facility which has a conditional license must be in
465 compliance with the standards in s. 400.23(3)(a) at all times.
466 Nothing in this section shall limit the agency's ability to
467 impose a deficiency or take other actions if a facility does not
468 have enough staff to meet the residents' needs.
469 (16) Report monthly the number of vacant beds in the
470 facility which are available for resident occupancy on the day
471 the information is reported.
472 (17) Notify a licensed physician when a resident exhibits
473 signs of dementia or cognitive impairment or has a change of
474 condition in order to rule out the presence of an underlying
475 physiological condition that may be contributing to such
476 dementia or impairment. The notification must occur within 30
477 days after the acknowledgment of such signs by facility staff.
478 If an underlying condition is determined to exist, the facility
479 shall arrange, with the appropriate health care provider, the
480 necessary care and services to treat the condition.
481 (18) If the facility implements a dining and hospitality
482 attendant program, ensure that the program is developed and
483 implemented under the supervision of the facility director of
484 nursing. A licensed nurse, licensed speech or occupational
485 therapist, or a registered dietitian must conduct training of
486 dining and hospitality attendants. A person employed by a
487 facility as a dining and hospitality attendant must perform
488 tasks under the direct supervision of a licensed nurse.
489 (19) Report to the agency any filing for bankruptcy
490 protection by the facility or its parent corporation,
491 divestiture or spin-off of its assets, or corporate
492 reorganization within 30 days after the completion of such
493 activity.
494 (20) Maintain general and professional liability insurance
495 coverage that is in force at all times. In lieu of general and
496 professional liability insurance coverage, a state-designated
497 teaching nursing home and its affiliated assisted living
498 facilities created under s. 430.80 may demonstrate proof of
499 financial responsibility as provided in s. 430.80(3)(h).
500 (21) Maintain in the medical record for each resident a
501 daily chart of certified nursing assistant services provided to
502 the resident. The certified nursing assistant who is caring for
503 the resident must complete this record by the end of his or her
504 shift. This record must indicate assistance with activities of
505 daily living, assistance with eating, and assistance with
506 drinking, and must record each offering of nutrition and
507 hydration for those residents whose plan of care or assessment
508 indicates a risk for malnutrition or dehydration.
509 (22) Before November 30 of each year, subject to the
510 availability of an adequate supply of the necessary vaccine,
511 provide for immunizations against influenza viruses to all its
512 consenting residents in accordance with the recommendations of
513 the United States Centers for Disease Control and Prevention,
514 subject to exemptions for medical contraindications and
515 religious or personal beliefs. Subject to these exemptions, any
516 consenting person who becomes a resident of the facility after
517 November 30 but before March 31 of the following year must be
518 immunized within 5 working days after becoming a resident.
519 Immunization shall not be provided to any resident who provides
520 documentation that he or she has been immunized as required by
521 this subsection. This subsection does not prohibit a resident
522 from receiving the immunization from his or her personal
523 physician if he or she so chooses. A resident who chooses to
524 receive the immunization from his or her personal physician
525 shall provide proof of immunization to the facility. The agency
526 may adopt and enforce any rules necessary to comply with or
527 implement this subsection.
528 (23) Assess all residents for eligibility for pneumococcal
529 polysaccharide vaccination (PPV) and vaccinate residents when
530 indicated within 60 days after the effective date of this act in
531 accordance with the recommendations of the United States Centers
532 for Disease Control and Prevention, subject to exemptions for
533 medical contraindications and religious or personal beliefs.
534 Residents admitted after the effective date of this act shall be
535 assessed within 5 working days of admission and, when indicated,
536 vaccinated within 60 days in accordance with the recommendations
537 of the United States Centers for Disease Control and Prevention,
538 subject to exemptions for medical contraindications and
539 religious or personal beliefs. Immunization shall not be
540 provided to any resident who provides documentation that he or
541 she has been immunized as required by this subsection. This
542 subsection does not prohibit a resident from receiving the
543 immunization from his or her personal physician if he or she so
544 chooses. A resident who chooses to receive the immunization from
545 his or her personal physician shall provide proof of
546 immunization to the facility. The agency may adopt and enforce
547 any rules necessary to comply with or implement this subsection.
548 (24) Annually encourage and promote to its employees the
549 benefits associated with immunizations against influenza viruses
550 in accordance with the recommendations of the United States
551 Centers for Disease Control and Prevention. The agency may adopt
552 and enforce any rules necessary to comply with or implement this
553 subsection.
554 Facilities that have been awarded a Gold Seal under the program
555 established in s. 400.235 may develop a plan to provide
556 certified nursing assistant training as prescribed by federal
557 regulations and state rules and may apply to the agency for
558 approval of their program.
559 Section 12. Subsection (3) of section 400.19, Florida
560 Statutes, is amended to read:
561 400.19 Right of entry and inspection.—
562 (3) The agency shall every 15 months conduct at least one
563 unannounced inspection to determine compliance by the licensee
564 with statutes, with federal requirements, and with rules adopted
565 promulgated under the provisions of those statutes and federal
566 requirements, governing minimum standards of construction,
567 quality and adequacy of care, and rights of residents. The
568 survey shall be conducted every 6 months for the next 2-year
569 period if the facility has been cited for a class I deficiency,
570 has been cited for two or more class II deficiencies arising
571 from separate surveys or investigations within a 60-day period,
572 or has had three or more substantiated complaints within a 6
573 month period, each resulting in at least one class I or class II
574 deficiency. In addition to any other fees or fines in this part,
575 the agency shall assess a fine for each facility that is subject
576 to the 6-month survey cycle. The fine for the 2-year period
577 shall be $6,000, one-half to be paid at the completion of each
578 survey. The agency may adjust this fine by the change in the
579 Consumer Price Index, based on the 12 months immediately
580 preceding the increase, to cover the cost of the additional
581 surveys. The agency shall verify through subsequent inspection
582 that any deficiency identified during inspection is corrected.
583 However, the agency may verify the correction of a class III or
584 class IV deficiency unrelated to resident rights or resident
585 care without reinspecting the facility if adequate written
586 documentation has been received from the facility, which
587 provides assurance that the deficiency has been corrected. The
588 giving or causing to be given of advance notice of such
589 unannounced inspections by an employee of the agency to any
590 unauthorized person shall constitute cause for suspension of not
591 fewer than 5 working days according to the provisions of chapter
592 110.
593 Section 13. Section 400.191, Florida Statutes, is repealed.
594 Section 14. Subsection (1) of section 400.195, Florida
595 Statutes, is amended to read:
596 400.195 Agency reporting requirements.—
597 (1) For the period beginning June 30, 2001, and ending June
598 30, 2005, the Agency for Health Care Administration shall
599 provide a report to the Governor, the President of the Senate,
600 and the Speaker of the House of Representatives with respect to
601 nursing homes. The first report shall be submitted no later than
602 December 30, 2002, and subsequent reports shall be submitted
603 every 6 months thereafter. The report shall identify facilities
604 based on their ownership characteristics, size, business
605 structure, for-profit or not-for-profit status, and any other
606 characteristics the agency determines useful in analyzing the
607 varied segments of the nursing home industry and shall report:
608 (a) The number of notices of intent to litigate received by
609 each facility each month.
610 (b) The number of complaints on behalf of a resident or
611 resident legal representative that were filed with the clerk of
612 the court each month.
613 (c) The month in which the injury which is the basis for
614 the suit occurred or was discovered or, if unavailable, the
615 dates of residency of the resident involved, beginning with the
616 date of initial admission and latest discharge date.
617 (d) Information regarding deficiencies cited, including
618 information used to develop the Nursing Home Guide WATCH LIST
619 pursuant to s. 400.191, and applicable rules, a summary of data
620 generated on nursing homes by Centers for Medicare and Medicaid
621 Services Nursing Home Quality Information Project, and
622 information collected pursuant to s. 400.147(9), relating to
623 litigation.
624 Section 15. Subsections (2), (7), and (8) of section
625 400.23, Florida Statutes, are amended to read:
626 400.23 Rules; evaluation and deficiencies; licensure
627 status.—
628 (2) Pursuant to the intention of the Legislature, the
629 agency, in consultation with the Department of Health and the
630 Department of Elderly Affairs, shall adopt and enforce rules to
631 implement this part and part II of chapter 408, which shall
632 include reasonable and fair criteria in relation to:
633 (a) The location of the facility and housing conditions
634 that will ensure the health, safety, and comfort of residents,
635 including an adequate call system. In making such rules, the
636 agency shall be guided by criteria recommended by nationally
637 recognized reputable professional groups and associations with
638 knowledge of such subject matters. The agency shall update or
639 revise such criteria as the need arises. The agency may require
640 alterations to a building if it determines that an existing
641 condition constitutes a distinct hazard to life, health, or
642 safety. In performing any inspections of facilities authorized
643 by this part or part II of chapter 408, the agency may enforce
644 the special-occupancy provisions of the Florida Building Code
645 and the Florida Fire Prevention Code which apply to nursing
646 homes. Residents or their representatives shall be able to
647 request a change in the placement of the bed in their room,
648 provided that at admission they are presented with a room that
649 meets requirements of the Florida Building Code. The location of
650 a bed may be changed if the requested placement does not
651 infringe on the resident's roommate or interfere with the
652 resident's care or safety as determined by the care planning
653 team in accordance with facility policies and procedures. In
654 addition, the bed placement may not be used as a restraint. Each
655 facility shall maintain a log of resident rooms with beds that
656 are not in strict compliance with the Florida Building Code in
657 order for such log to be used by surveyors and nurse monitors
658 during inspections and visits. A resident or resident
659 representative who requests that a bed be moved shall sign a
660 statement indicating that he or she understands the room will
661 not be in compliance with the Florida Building Code, but they
662 would prefer to exercise their right to self-determination. The
663 statement must be retained as part of the resident's care plan.
664 Any facility that offers this option must submit a letter signed
665 by the nursing home administrator of record to the agency
666 notifying it of this practice with a copy of the policies and
667 procedures of the facility. The agency is directed to provide
668 assistance to the Florida Building Commission in updating the
669 construction standards of the code relative to nursing homes.
670 (b) The number and qualifications of all personnel,
671 including management, medical, nursing, and other professional
672 personnel, and nursing assistants, orderlies, and support
673 personnel, having responsibility for any part of the care given
674 residents.
675 (c) All sanitary conditions within the facility and its
676 surroundings, including water supply, sewage disposal, food
677 handling, and general hygiene which will ensure the health and
678 comfort of residents.
679 (d) The equipment essential to the health and welfare of
680 the residents.
681 (e) A uniform accounting system.
682 (f) The care, treatment, and maintenance of residents and
683 measurement of the quality and adequacy thereof, based on rules
684 developed under this chapter and the Omnibus Budget
685 Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22,
686 1987), Title IV (Medicare, Medicaid, and Other Health-Related
687 Programs), Subtitle C (Nursing Home Reform), as amended.
688 (g) The preparation and annual update of a comprehensive
689 emergency management plan. The agency shall adopt rules
690 establishing minimum criteria for the plan after consultation
691 with the Department of Community Affairs. At a minimum, the
692 rules must provide for plan components that address emergency
693 evacuation transportation; adequate sheltering arrangements;
694 postdisaster activities, including emergency power, food, and
695 water; postdisaster transportation; supplies; staffing;
696 emergency equipment; individual identification of residents and
697 transfer of records; and responding to family inquiries. The
698 comprehensive emergency management plan is subject to review and
699 approval by the local emergency management agency. During its
700 review, the local emergency management agency shall ensure that
701 the following agencies, at a minimum, are given the opportunity
702 to review the plan: the Department of Elderly Affairs, the
703 Department of Health, the Agency for Health Care Administration,
704 and the Department of Community Affairs. Also, appropriate
705 volunteer organizations must be given the opportunity to review
706 the plan. The local emergency management agency shall complete
707 its review within 60 days and either approve the plan or advise
708 the facility of necessary revisions.
709 (h) The availability, distribution, and posting of reports
710 and records pursuant to s. 400.191 and the Gold Seal Program
711 pursuant to s. 400.235.
712 (7) The agency shall, at least every 15 months, evaluate
713 all nursing home facilities and make a determination as to the
714 degree of compliance by each licensee with the established rules
715 adopted under this part as a basis for assigning a licensure
716 status to that facility. The agency shall base its evaluation on
717 the most recent inspection report, taking into consideration
718 findings from other official reports, surveys, interviews,
719 investigations, and inspections. In addition to license
720 categories authorized under part II of chapter 408, the agency
721 shall assign a licensure status of standard or conditional to
722 each nursing home.
723 (a) A standard licensure status means that a facility does
724 not have any has no class I or class II deficiencies and has
725 corrected all class III deficiencies within the time established
726 by the agency.
727 (b) A conditional licensure status means that a facility,
728 due to the presence of one or more class I or class II
729 deficiencies, or class III deficiencies not corrected within the
730 time established by the agency, is not in substantial compliance
731 at the time of the survey with criteria established under this
732 part or with rules adopted by the agency. If the facility does
733 not have any has no class I, class II, or class III deficiencies
734 at the time of the followup survey, a standard licensure status
735 may be assigned.
736 (c) In evaluating the overall quality of care and services
737 and determining whether the facility will receive a conditional
738 or standard license, the agency shall consider the needs and
739 limitations of residents in the facility and the results of
740 interviews and surveys of a representative sampling of
741 residents, families of residents, ombudsman council members in
742 the planning and service area in which the facility is located,
743 guardians of residents, and staff of the nursing home facility.
744 (d) The current licensure status of each facility must be
745 indicated in bold print on the face of the license. A list of
746 the deficiencies of the facility shall be posted in a prominent
747 place that is in clear and unobstructed public view at or near
748 the place where residents are being admitted to that facility.
749 Licensees receiving a conditional licensure status for a
750 facility shall prepare, within 10 working days after receiving
751 notice of deficiencies, a plan for correction of all
752 deficiencies and shall submit the plan to the agency for
753 approval.
754 (e) The agency shall adopt rules that:
755 1. Establish uniform procedures for the evaluation of
756 facilities.
757 2. Provide criteria in the areas referenced in paragraph
758 (c).
759 3. Address other areas necessary for carrying out the
760 intent of this section.
761 (8) The agency shall adopt rules pursuant to this part and
762 part II of chapter 408 to provide that, when the criteria
763 established under subsection (2) are not met, such deficiencies
764 shall be classified according to the nature and the scope of the
765 deficiency. The scope shall be cited as isolated, patterned, or
766 widespread. An isolated deficiency is a deficiency affecting one
767 or a very limited number of residents, or involving one or a
768 very limited number of staff, or a situation that occurred only
769 occasionally or in a very limited number of locations. A
770 patterned deficiency is a deficiency where more than a very
771 limited number of residents are affected, or more than a very
772 limited number of staff are involved, or the situation has
773 occurred in several locations, or the same resident or residents
774 have been affected by repeated occurrences of the same deficient
775 practice but the effect of the deficient practice is not found
776 to be pervasive throughout the facility. A widespread deficiency
777 is a deficiency in which the problems causing the deficiency are
778 pervasive in the facility or represent systemic failure that has
779 affected or has the potential to affect a large portion of the
780 facility's residents. The agency shall indicate the level of
781 seriousness of the deficiency classification on the face of the
782 notice of deficiencies in accordance with s. 7400E1 of the State
783 Operations Manual published by the Centers for Medicare and
784 Medicaid Services. as follows:
785 (a) A class I deficiency is a deficiency that the agency
786 determines presents a situation in which immediate corrective
787 action is necessary because the facility's noncompliance has
788 caused, or is likely to cause, serious injury, harm, impairment,
789 or death to a resident receiving care in a facility. The
790 condition or practice constituting a class I violation shall be
791 abated or eliminated immediately, unless a fixed period of time,
792 as determined by the agency, is required for correction. A class
793 I deficiency is subject to a civil penalty of $10,000 for an
794 isolated deficiency, $12,500 for a patterned deficiency, and
795 $15,000 for a widespread deficiency. The fine amount shall be
796 doubled for each deficiency if the facility was previously cited
797 for one or more class I or class II deficiencies during the last
798 licensure inspection or any inspection or complaint
799 investigation since the last licensure inspection. A fine must
800 be levied notwithstanding the correction of the deficiency.
801 (b) A class II deficiency is a deficiency that the agency
802 determines has compromised the resident's ability to maintain or
803 reach his or her highest practicable physical, mental, and
804 psychosocial well-being, as defined by an accurate and
805 comprehensive resident assessment, plan of care, and provision
806 of services. A class II deficiency is subject to a civil penalty
807 of $2,500 for an isolated deficiency, $5,000 for a patterned
808 deficiency, and $7,500 for a widespread deficiency. The fine
809 amount shall be doubled for each deficiency if the facility was
810 previously cited for one or more class I or class II
811 deficiencies during the last licensure inspection or any
812 inspection or complaint investigation since the last licensure
813 inspection. A fine shall be levied notwithstanding the
814 correction of the deficiency.
815 (c) A class III deficiency is a deficiency that the agency
816 determines will result in no more than minimal physical, mental,
817 or psychosocial discomfort to the resident or has the potential
818 to compromise the resident's ability to maintain or reach his or
819 her highest practical physical, mental, or psychosocial well
820 being, as defined by an accurate and comprehensive resident
821 assessment, plan of care, and provision of services. A class III
822 deficiency is subject to a civil penalty of $1,000 for an
823 isolated deficiency, $2,000 for a patterned deficiency, and
824 $3,000 for a widespread deficiency. The fine amount shall be
825 doubled for each deficiency if the facility was previously cited
826 for one or more class I or class II deficiencies during the last
827 licensure inspection or any inspection or complaint
828 investigation since the last licensure inspection. A citation
829 for a class III deficiency must specify the time within which
830 the deficiency is required to be corrected. If a class III
831 deficiency is corrected within the time specified, a civil
832 penalty may not be imposed.
833 (d) A class IV deficiency is a deficiency that the agency
834 determines has the potential for causing no more than a minor
835 negative impact on the resident. If the class IV deficiency is
836 isolated, no plan of correction is required.
837 Section 16. Section 400.235, Florida Statutes, is repealed.
838 Section 17. Subsection (1) of section 408.035, Florida
839 Statutes, is amended to read:
840 408.035 Review criteria.—
841 (1) The agency shall determine the reviewability of
842 applications and shall review applications for certificate-of
843 need determinations for health care facilities and health
844 services in context with the following criteria, except for
845 general hospitals as defined in s. 395.002:
846 (a) The need for the health care facilities and health
847 services being proposed.
848 (b) The availability, quality of care, accessibility, and
849 extent of utilization of existing health care facilities and
850 health services in the service district of the applicant.
851 (c) The ability of the applicant to provide quality of care
852 and the applicant's record of providing quality of care.
853 (d) The availability of resources, including health
854 personnel, management personnel, and funds for capital and
855 operating expenditures, for project accomplishment and
856 operation.
857 (e) The extent to which the proposed services will enhance
858 access to health care for residents of the service district.
859 (f) The immediate and long-term financial feasibility of
860 the proposal.
861 (g) The extent to which the proposal will foster
862 competition that promotes quality and cost-effectiveness.
863 (h) The costs and methods of the proposed construction,
864 including the costs and methods of energy provision and the
865 availability of alternative, less costly, or more effective
866 methods of construction.
867 (i) The applicant's past and proposed provision of health
868 care services to Medicaid patients and the medically indigent.
869 (j) The applicant's designation as a Gold Seal Program
870 nursing facility pursuant to s. 400.235, when the applicant is
871 requesting additional nursing home beds at that facility.
872 Section 18. Paragraph (d) of subsection (15) of section
873 409.912, Florida Statutes, is repealed.
874 Section 19. Section 633.081, Florida Statutes, is amended
875 to read:
876 633.081 Inspection of buildings and equipment; orders;
877 firesafety inspection training requirements; certification;
878 disciplinary action.—The State Fire Marshal and her or his
879 agents shall, at any reasonable hour, when the department has
880 reasonable cause to believe that a violation of this chapter or
881 s. 509.215, or a rule promulgated thereunder, or a minimum
882 firesafety code adopted by a local authority, may exist, inspect
883 any and all buildings and structures which are subject to the
884 requirements of this chapter or s. 509.215 and rules promulgated
885 thereunder. The authority to inspect shall extend to all
886 equipment, vehicles, and chemicals which are located within the
887 premises of any such building or structure. Nursing home
888 facilities that are licensed under part II of chapter 400 and
889 inspected by the Agency for Health Care Administration as part
890 of state licensing requirements and federal certification
891 requirements are exempt from inspection by the State Fire
892 Marshal and her or his agents if the agency's inspection
893 satisfies inspection requirements of the State Fire Marshal.
894 (1) Each county, municipality, and special district that
895 has firesafety enforcement responsibilities shall employ or
896 contract with a firesafety inspector. The firesafety inspector
897 must conduct all firesafety inspections that are required by
898 law. The governing body of a county, municipality, or special
899 district that has firesafety enforcement responsibilities may
900 provide a schedule of fees to pay only the costs of inspections
901 conducted pursuant to this subsection and related administrative
902 expenses. Two or more counties, municipalities, or special
903 districts that have firesafety enforcement responsibilities may
904 jointly employ or contract with a firesafety inspector.
905 (2) Every firesafety inspection conducted pursuant to state
906 or local firesafety requirements shall be by a person certified
907 as having met the inspection training requirements set by the
908 State Fire Marshal. Such person shall:
909 (a) Be a high school graduate or the equivalent as
910 determined by the department;
911 (b) Not have been found guilty of, or having pleaded guilty
912 or nolo contendere to, a felony or a crime punishable by
913 imprisonment of 1 year or more under the law of the United
914 States, or of any state thereof, which involves moral turpitude,
915 without regard to whether a judgment of conviction has been
916 entered by the court having jurisdiction of such cases;
917 (c) Have her or his fingerprints on file with the
918 department or with an agency designated by the department;
919 (d) Have good moral character as determined by the
920 department;
921 (e) Be at least 18 years of age;
922 (f) Have satisfactorily completed the firesafety inspector
923 certification examination as prescribed by the department; and
924 (g)1. Have satisfactorily completed, as determined by the
925 department, a firesafety inspector training program of not less
926 than 200 hours established by the department and administered by
927 agencies and institutions approved by the department for the
928 purpose of providing basic certification training for firesafety
929 inspectors; or
930 2. Have received in another state training which is
931 determined by the department to be at least equivalent to that
932 required by the department for approved firesafety inspector
933 education and training programs in this state.
934 (3) Each special state firesafety inspection which is
935 required by law and is conducted by or on behalf of an agency of
936 the state must be performed by an individual who has met the
937 provision of subsection (2), except that the duration of the
938 training program shall not exceed 120 hours of specific training
939 for the type of property that such special state firesafety
940 inspectors are assigned to inspect.
941 (4) A firefighter certified pursuant to s. 633.35 may
942 conduct firesafety inspections, under the supervision of a
943 certified firesafety inspector, while on duty as a member of a
944 fire department company conducting inservice firesafety
945 inspections without being certified as a firesafety inspector,
946 if such firefighter has satisfactorily completed an inservice
947 fire department company inspector training program of at least
948 24 hours' duration as provided by rule of the department.
949 (5) Every firesafety inspector or special state firesafety
950 inspector certificate is valid for a period of 3 years from the
951 date of issuance. Renewal of certification shall be subject to
952 the affected person's completing proper application for renewal
953 and meeting all of the requirements for renewal as established
954 under this chapter or by rule promulgated thereunder, which
955 shall include completion of at least 40 hours during the
956 preceding 3-year period of continuing education as required by
957 the rule of the department or, in lieu thereof, successful
958 passage of an examination as established by the department.
959 (6) The State Fire Marshal may deny, refuse to renew,
960 suspend, or revoke the certificate of a firesafety inspector or
961 special state firesafety inspector if it finds that any of the
962 following grounds exist:
963 (a) Any cause for which issuance of a certificate could
964 have been refused had it then existed and been known to the
965 State Fire Marshal.
966 (b) Violation of this chapter or any rule or order of the
967 State Fire Marshal.
968 (c) Falsification of records relating to the certificate.
969 (d) Having been found guilty of or having pleaded guilty or
970 nolo contendere to a felony, whether or not a judgment of
971 conviction has been entered.
972 (e) Failure to meet any of the renewal requirements.
973 (f) Having been convicted of a crime in any jurisdiction
974 which directly relates to the practice of fire code inspection,
975 plan review, or administration.
976 (g) Making or filing a report or record that the
977 certificateholder knows to be false, or knowingly inducing
978 another to file a false report or record, or knowingly failing
979 to file a report or record required by state or local law, or
980 knowingly impeding or obstructing such filing, or knowingly
981 inducing another person to impede or obstruct such filing.
982 (h) Failing to properly enforce applicable fire codes or
983 permit requirements within this state which the
984 certificateholder knows are applicable by committing willful
985 misconduct, gross negligence, gross misconduct, repeated
986 negligence, or negligence resulting in a significant danger to
987 life or property.
988 (i) Accepting labor, services, or materials at no charge or
989 at a noncompetitive rate from any person who performs work that
990 is under the enforcement authority of the certificateholder and
991 who is not an immediate family member of the certificateholder.
992 For the purpose of this paragraph, the term “immediate family
993 member” means a spouse, child, parent, sibling, grandparent,
994 aunt, uncle, or first cousin of the person or the person's
995 spouse or any person who resides in the primary residence of the
996 certificateholder.
997 (7) The department shall provide by rule for the
998 certification of firesafety inspectors.
999 Section 20. This act shall take effect July 1, 2009.