Florida Senate - 2018 SB 1260
By Senator Stargel
22-01260B-18 20181260__
1 A bill to be entitled
2 An act relating to nursing homes and assisted living
3 facilities; creating s. 366.042, F.S.; requiring the
4 Public Service Commission to ensure that public
5 utilities effectively prioritize the restoration of
6 services to certain health care facilities in the
7 event of emergencies; amending s. 400.0238, F.S.;
8 requiring that a claimant’s attorney fees be
9 calculated based on the claimant’s share of punitive
10 damages; revising provisions related to punitive
11 damages to include provisions for cases that are
12 settled; amending s. 400.0239, F.S.; authorizing the
13 Quality of Long-Term Care Facility Improvement Trust
14 Fund to expend certain funds on a grant program
15 administered by the Agency for Health Care
16 Administration to provide funding for nursing home
17 facilities to acquire emergency power sources;
18 amending s. 400.19, F.S.; requiring the agency to
19 determine compliance with statutes and rules relating
20 to emergency power sources in the unannounced
21 inspections of a nursing home facility; amending s.
22 400.23, F.S.; requiring the agency, in consultation
23 with the Department of Health and the Department of
24 Elderly Affairs, to adopt and enforce rules requiring
25 each facility to have an emergency power source and a
26 supply of fuel which meet certain criteria; providing
27 an exception; requiring the agency to adopt rules
28 establishing minimum criteria for a comprehensive
29 emergency management plan that includes a plan to
30 monitor residents and transport them in certain
31 situations to avoid complications from heat exposure;
32 requiring the local emergency management agency to
33 publish a list of facilities whose emergency plans
34 have been approved; amending s. 429.41, F.S.;
35 requiring the Department of Elderly Affairs, in
36 consultation with the agency, the Department of
37 Children and Families, and the Department of Health,
38 to adopt and enforce rules requiring each facility
39 maintain an emergency power source and a supply of
40 fuel which meet certain criteria; providing an
41 exception; providing an effective date.
42
43 Be It Enacted by the Legislature of the State of Florida:
44
45 Section 1. Section 366.042, Florida Statutes, is created to
46 read:
47 366.042 Power restoration priority.—The commission shall
48 ensure that public utilities have effectively prioritized, in
49 the event of an emergency, the restoration of services to
50 critical medical facilities with at least 50 residents,
51 including nursing homes licensed under part II of chapter 400
52 and assisted living facilities licensed under part I of chapter
53 429.
54 Section 2. Subsections (2) and (4) of section 400.0238,
55 Florida Statutes, are amended to read:
56 400.0238 Punitive damages; limitation.—
57 (2) The claimant’s attorney attorney’s fees, if payable
58 from the judgment, are, to the extent that the fees are based on
59 the punitive damages, calculated based on the claimant’s share
60 of final judgment for punitive damages. This subsection does not
61 limit the payment of attorney attorney’s fees based upon an
62 award of damages other than punitive damages.
63 (4) Notwithstanding any other law to the contrary, if the
64 claimant has received a final judgment for the amount of
65 punitive damages or there is a settlement of a case in which the
66 claimant was granted leave to amend his or her complaint to add
67 a claim for punitive damages, the punitive damages awarded
68 pursuant to this section shall be equally divided before any
69 distribution to the claimant’s counsel for fees or costs between
70 the claimant and the Quality of Long-Term Care Facility
71 Improvement Trust Fund, in accordance with the following
72 provisions:
73 (a) In the event of a judgment, the clerk of the court
74 shall transmit a copy of the jury verdict to the Chief Financial
75 Officer by certified mail. In the final judgment, the court
76 shall order the percentages of the award, payable as provided
77 herein. In the event of a settlement, the parties shall transmit
78 by certified mail to the Chief Financial Officer a statement of
79 the proportionate share due to the Quality of Long-Term Care
80 Facility Improvement Trust Fund.
81 (b) A settlement agreement entered into between the
82 original parties to the action after a verdict has been returned
83 must provide a proportionate share payable to the Quality of
84 Long-Term Care Facility Improvement Trust Fund specified herein.
85 For purposes of this paragraph, a proportionate share is a 50
86 percent share of that percentage of the settlement amount which
87 the punitive damages portion of the verdict bore to the total of
88 the compensatory and punitive damages in the verdict.
89 (c) The Department of Financial Services shall collect or
90 cause to be collected all payments due the state under this
91 section. Such payments are made to the Chief Financial Officer
92 and deposited in the appropriate fund specified in this
93 subsection.
94 (d) If the full amount of punitive damages awarded cannot
95 be collected, the claimant and the other recipient designated
96 pursuant to this subsection are each entitled to a proportionate
97 share of the punitive damages collected.
98 Section 3. Paragraph (h) is added to subsection (2) of
99 section 400.0239, Florida Statutes, to read:
100 400.0239 Quality of Long-Term Care Facility Improvement
101 Trust Fund.—
102 (2) Expenditures from the trust fund shall be allowable for
103 direct support of the following:
104 (h) From proceeds generated pursuant to s. 400.0238, a
105 grant program administered by the agency to provide funding for
106 nursing home facilities to acquire emergency power sources.
107 Section 4. Subsection (3) of section 400.19, Florida
108 Statutes, is amended to read:
109 400.19 Right of entry and inspection.—
110 (3) The agency shall every 15 months conduct at least one
111 unannounced inspection to determine compliance by the licensee
112 with statutes, and with rules adopted promulgated under the
113 provisions of those statutes, governing minimum standards of
114 construction, emergency power sources, quality and adequacy of
115 care, and rights of residents. The survey shall be conducted
116 every 6 months for the next 2-year period if the facility has
117 been cited for a class I deficiency, has been cited for two or
118 more class II deficiencies arising from separate surveys or
119 investigations within a 60-day period, or has had three or more
120 substantiated complaints within a 6-month period, each resulting
121 in at least one class I or class II deficiency. In addition to
122 any other fees or fines in this part, the agency shall assess a
123 fine for each facility that is subject to the 6-month survey
124 cycle. The fine for the 2-year period shall be $6,000, one-half
125 to be paid at the completion of each survey. The agency may
126 adjust this fine by the change in the Consumer Price Index,
127 based on the 12 months immediately preceding the increase, to
128 cover the cost of the additional surveys. The agency shall
129 verify through subsequent inspection that any deficiency
130 identified during inspection is corrected. However, the agency
131 may verify the correction of a class III or class IV deficiency
132 unrelated to resident rights or resident care without
133 reinspecting the facility if adequate written documentation has
134 been received from the facility, which provides assurance that
135 the deficiency has been corrected. The giving or causing to be
136 given of advance notice of such unannounced inspections by an
137 employee of the agency to any unauthorized person shall
138 constitute cause for suspension of not fewer than 5 working days
139 according to the provisions of chapter 110.
140 Section 5. Paragraphs (d) and (g) of subsection (2) of
141 section 400.23, Florida Statutes, are amended to read:
142 400.23 Rules; evaluation and deficiencies; licensure
143 status.—
144 (2) Pursuant to the intention of the Legislature, the
145 agency, in consultation with the Department of Health and the
146 Department of Elderly Affairs, shall adopt and enforce rules to
147 implement this part and part II of chapter 408, which shall
148 include reasonable and fair criteria in relation to:
149 (d) The equipment essential to the health and welfare of
150 the residents, including an operational emergency power source
151 and a supply of fuel sufficient to sustain the emergency power
152 source for at least 4 days during a power outage. A facility may
153 contract with a company that is able to timely supply an
154 emergency power source or supply of fuel when requested by the
155 facility, or may store an emergency power source or supply of
156 fuel on site. The emergency power source must provide enough
157 electricity to:
158 1. Consistently maintain an ambient air temperature of 81°
159 F. or less within one or more areas of the facility having
160 enough space to safely hold all of the facility’s residents; and
161 2. Allow for the refrigeration and standard preparation of
162 food and beverages served by the facility to its residents and
163 for the storage of ice.
164
165 A facility located in an area that must be evacuated in a
166 hurricane or which does not plan to house residents in an
167 emergency may be exempted from the emergency power requirements
168 of this paragraph upon request to and with authorization from
169 the agency.
170 (g) The preparation and annual update of a comprehensive
171 emergency management plan. The agency shall adopt rules
172 establishing minimum criteria for the plan after consultation
173 with the Division of Emergency Management. At a minimum, the
174 rules must provide for plan components that address emergency
175 evacuation transportation; adequate sheltering arrangements;
176 postdisaster activities, including emergency power, food, and
177 water; postdisaster transportation; supplies; staffing;
178 emergency equipment; individual identification of residents and
179 transfer of records; a plan to monitor residents to ensure they
180 do not experience complications from heat exposure and to make
181 certain all residents have sufficient access to areas of the
182 facility with an ambient air temperature of 81° F. or less; a
183 plan to safely transport residents to an appropriate facility if
184 a facility’s management knows it will be unable to maintain the
185 residents in a safe temperature range; and responding to family
186 inquiries. The comprehensive emergency management plan is
187 subject to review and approval by the local emergency management
188 agency. During its review, the local emergency management agency
189 shall ensure that the following agencies, at a minimum, are
190 given the opportunity to review the plan: the Department of
191 Elderly Affairs, the Department of Health, the Agency for Health
192 Care Administration, and the Division of Emergency Management.
193 Also, appropriate volunteer organizations must be given the
194 opportunity to review the plan. The local emergency management
195 agency shall complete its review within 60 days and either
196 approve the plan or advise the facility of necessary revisions.
197 The local emergency management agency shall publish a list of
198 facilities whose emergency plans have been approved.
199 Section 6. Paragraph (a) of subsection (1) of section
200 429.41, Florida Statutes, is amended to read:
201 429.41 Rules establishing standards.—
202 (1) It is the intent of the Legislature that rules
203 published and enforced pursuant to this section shall include
204 criteria by which a reasonable and consistent quality of
205 resident care and quality of life may be ensured and the results
206 of such resident care may be demonstrated. Such rules shall also
207 ensure a safe and sanitary environment that is residential and
208 noninstitutional in design or nature. It is further intended
209 that reasonable efforts be made to accommodate the needs and
210 preferences of residents to enhance the quality of life in a
211 facility. Uniform firesafety standards for assisted living
212 facilities shall be established by the State Fire Marshal
213 pursuant to s. 633.206. The agency, in consultation with the
214 department, may adopt rules to administer the requirements of
215 part II of chapter 408. In order to provide safe and sanitary
216 facilities and the highest quality of resident care
217 accommodating the needs and preferences of residents, the
218 department, in consultation with the agency, the Department of
219 Children and Families, and the Department of Health, shall adopt
220 rules, policies, and procedures to administer this part, which
221 must include reasonable and fair minimum standards in relation
222 to:
223 (a) The requirements for and maintenance of facilities, not
224 in conflict with chapter 553, relating to plumbing, heating,
225 cooling, lighting, ventilation, living space, and other housing
226 conditions, which will ensure the health, safety, and comfort of
227 residents suitable to the size of the structure.
228 1. Firesafety evacuation capability determination.—An
229 evacuation capability evaluation for initial licensure shall be
230 conducted within 6 months after the date of licensure.
231 2. Firesafety requirements.—
232 a. The National Fire Protection Association, Life Safety
233 Code, NFPA 101 and 101A, current editions, shall be used in
234 determining the uniform firesafety code adopted by the State
235 Fire Marshal for assisted living facilities, pursuant to s.
236 633.206.
237 b. A local government or a utility may charge fees only in
238 an amount not to exceed the actual expenses incurred by the
239 local government or the utility relating to the installation and
240 maintenance of an automatic fire sprinkler system in a licensed
241 assisted living facility structure.
242 c. All licensed facilities must have an annual fire
243 inspection conducted by the local fire marshal or authority
244 having jurisdiction.
245 d. An assisted living facility that is issued a building
246 permit or certificate of occupancy before July 1, 2016, may at
247 its option and after notifying the authority having
248 jurisdiction, remain under the provisions of the 1994 and 1995
249 editions of the National Fire Protection Association, Life
250 Safety Code, NFPA 101, and NFPA 101A. The facility opting to
251 remain under such provisions may make repairs, modernizations,
252 renovations, or additions to, or rehabilitate, the facility in
253 compliance with NFPA 101, 1994 edition, and may use utilize the
254 alternative approaches to life safety in compliance with NFPA
255 101A, 1995 edition. However, a facility for which a building
256 permit or certificate of occupancy is issued before July 1,
257 2016, that undergoes Level III building alteration or
258 rehabilitation, as defined in the Florida Building Code, or
259 seeks to use utilize features not authorized under the 1994 or
260 1995 editions of the Life Safety Code must thereafter comply
261 with all aspects of the uniform firesafety standards established
262 under s. 633.206, and the Florida Fire Prevention Code, in
263 effect for assisted living facilities as adopted by the State
264 Fire Marshal.
265 3. Resident elopement requirements.—Facilities are required
266 to conduct a minimum of two resident elopement prevention and
267 response drills per year. All administrators and direct care
268 staff must participate in the drills which shall include a
269 review of procedures to address resident elopement. Facilities
270 must document the implementation of the drills and ensure that
271 the drills are conducted in a manner consistent with the
272 facility’s resident elopement policies and procedures.
273 4. Emergency power sources for use during power outages.
274 Facilities are required to maintain an operational emergency
275 power source and a supply of fuel sufficient to sustain the
276 emergency power source for at least 4 days during a power
277 outage. A facility may contract with a company that is able to
278 timely supply an emergency power source or supply of fuel when
279 requested by the facility, or may store an emergency power
280 source or supply of fuel on site. The emergency power source
281 must provide enough electricity to:
282 a. Consistently maintain an ambient air temperature of 81°
283 F. or less within one or more areas of the facility having
284 enough space to safely hold all of the facility’s residents; and
285 b. Allow for the refrigeration and standard preparation of
286 food and beverages served by the facility to its residents and
287 for the storage of ice.
288
289 A facility located in an area that must be evacuated in a
290 hurricane or which does not plan to house residents in an
291 emergency may be exempted from the emergency power requirements
292 of this subparagraph upon request to and with authorization from
293 the agency.
294 Section 7. This act shall take effect July 1, 2018.