Florida Senate - 2022                        COMMITTEE AMENDMENT
       Bill No. CS for SB 804
       
       
       
       
       
       
                                Ì308330rÎ308330                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/01/2022           .                                
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       The Committee on Rules (Albritton) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (18) of section 400.021, Florida
    6  Statutes, is amended to read:
    7         400.021 Definitions.—When used in this part, unless the
    8  context otherwise requires, the term:
    9         (18) “Resident care plan” means a written, comprehensive
   10  person-centered care plan developed in accordance with 42 C.F.R.
   11  s. 483.21(b) by an interdisciplinary team within 7 days after
   12  completion of a comprehensive assessment and with participation
   13  by the resident or the resident’s designee. The resident care
   14  plan must be reviewed and revised after each comprehensive
   15  assessment, which may be a new admission assessment, an annual
   16  assessment, or an assessment after a significant change in
   17  status, and after a quarterly review assessment. A care plan
   18  includes measurable objectives and timeframes to meet the
   19  resident’s medical, nursing, mental, and psychosocial needs and
   20  preferences, and must describe the services to be furnished,
   21  maintained, and reviewed not less than quarterly by a registered
   22  nurse, with participation from other facility staff and the
   23  resident or his or her designee or legal representative, which
   24  includes a comprehensive assessment of the needs of an
   25  individual resident; the type and frequency of services required
   26  to provide the necessary care for the resident to attain or
   27  maintain the resident’s highest practicable physical, mental,
   28  and psychosocial well-being; a listing of services provided
   29  within or outside the facility to meet those needs; and an
   30  explanation of service goals.
   31         Section 2. Subsection (3) of section 400.23, Florida
   32  Statutes, is amended to read:
   33         400.23 Rules; evaluation and deficiencies; licensure
   34  status.—
   35         (3)(a)1. As used in this subsection, the term:
   36         a.“Direct care staff” means persons who, through
   37  interpersonal contact with residents or resident care
   38  management, provide care and services to allow residents to
   39  attain or maintain the highest practicable physical, mental, and
   40  psychosocial well-being, including, but not limited to,
   41  disciplines and professions that must be reported in accordance
   42  with 42 C.F.R. s. 483.70(q) in the categories of direct care
   43  services of nursing, dietary, therapeutic, and mental health.
   44  The term does not include a person whose primary duty is
   45  maintaining the physical environment of the facility, including,
   46  but not limited to, food preparation, laundry, and housekeeping.
   47         b.“Facility assessment” means a process, performed in
   48  accordance with 42 C.F.R. s. 483.70(e), to determine the staff
   49  competencies necessary to provide the level and types of care
   50  needed for the facility’s resident population, considering the
   51  types of diseases, conditions, physical and cognitive
   52  disabilities, overall acuity, and other factors pertinent to
   53  that resident population.
   54         2. For purposes of this subsection, direct care staffing
   55  hours do not include time spent on nursing administration,
   56  activities program administration, staff development, staffing
   57  coordination, and the administrative portion of the minimum data
   58  set and care plan coordination for Medicaid.
   59         (b)1.Each facility must determine its direct care staffing
   60  needs based on the facility assessment and the individual needs
   61  of a resident based on the resident’s care plan. At a minimum,
   62  staffing The agency shall adopt rules providing minimum staffing
   63  requirements for nursing home facilities. These requirements
   64  must include the following, for each facility:
   65         a. A minimum weekly average of certified nursing assistant
   66  and licensed nursing staffing combined of 3.6 hours of direct
   67  care by direct care staff per resident per day. As used in this
   68  subparagraph sub-subparagraph, a week is defined as Sunday
   69  through Saturday.
   70         b. A minimum certified nursing assistant staffing of 2.0
   71  2.5 hours of direct care by a certified nursing assistant per
   72  resident per day. A facility may not staff below one certified
   73  nursing assistant per 20 residents.
   74         c. A minimum licensed nursing staffing of 1.0 hour of
   75  direct care by a licensed nurse per resident per day. A facility
   76  may not staff below one licensed nurse per 40 residents.
   77         2. Nursing assistants employed under s. 400.211(2) may be
   78  included in computing the hours of direct care provided by
   79  certified nursing assistants and may be included in computing
   80  the staffing ratio for certified nursing assistants if their job
   81  responsibilities include only nursing-assistant-related duties.
   82         3. Each nursing home facility must document compliance with
   83  staffing standards as required under this paragraph and post
   84  daily the names of licensed nurses and certified nursing
   85  assistants staff on duty for the benefit of facility residents
   86  and the public. Facilities must maintain the records documenting
   87  compliance with minimum staffing standards for a period of 5
   88  years and must report staffing in accordance with 42 C.F.R. s.
   89  483.70(q).
   90         4. The agency must shall recognize the use of licensed
   91  nurses for compliance with minimum staffing requirements for
   92  certified nursing assistants if the nursing home facility
   93  otherwise meets the minimum staffing requirements for licensed
   94  nurses and the licensed nurses are performing the duties of a
   95  certified nursing assistant. Unless otherwise approved by the
   96  agency, licensed nurses counted toward the minimum staffing
   97  requirements for certified nursing assistants must exclusively
   98  perform the duties of a certified nursing assistant for the
   99  entire shift and not also be counted toward the minimum staffing
  100  requirements for licensed nurses. If the agency approved a
  101  facility’s request to use a licensed nurse to perform both
  102  licensed nursing and certified nursing assistant duties, the
  103  facility must allocate the amount of staff time specifically
  104  spent on certified nursing assistant duties for the purpose of
  105  documenting compliance with minimum staffing requirements for
  106  certified and licensed nursing staff. The hours of a licensed
  107  nurse with dual job responsibilities may not be counted twice.
  108         5.Evidence that a facility complied with the minimum
  109  direct care staffing requirements under subparagraph 1. is not
  110  admissible as evidence of compliance with the nursing services
  111  requirements under 42 C.F.R. s. 483.35 or 42 C.F.R. s. 483.70.
  112         (c)(b) Paid feeding assistants and direct care nonnursing
  113  staff, other than certified nursing assistants and licensed
  114  nurses, who have successfully completed the feeding assistant
  115  training program under s. 400.141(1)(v) and who provide
  116  providing eating assistance to residents shall not count toward
  117  compliance with overall direct care minimum staffing hours but
  118  not the hours of direct care required for certified nursing
  119  assistants or licensed nurses. Time spent by certified nursing
  120  assistants or licensed nurses on providing eating assistance to
  121  residents shall count toward the hours of direct care required
  122  for certified nursing assistants or licensed nurses standards.
  123         (d)(c) Licensed practical nurses licensed under chapter 464
  124  who provide are providing nursing services in nursing home
  125  facilities under this part may supervise the activities of other
  126  licensed practical nurses, certified nursing assistants, and
  127  other unlicensed personnel providing services in such facilities
  128  in accordance with rules adopted by the Board of Nursing.
  129         (e)The agency may adopt rules to implement this
  130  subsection.
  131         Section 3. Present subsection (2) of section 400.0234,
  132  Florida Statutes, is redesignated as subsection (3), and a new
  133  subsection (2) is added to that section, to read:
  134         400.0234 Availability of facility records for investigation
  135  of resident’s rights violations and defenses; penalty.—
  136         (2) Information submitted pursuant to s. 408.061(5) and (6)
  137  is discoverable and admissible in a civil action or an
  138  administrative action under this part or part II of chapter 408.
  139         Section 4. Subsection (4) of section 400.024, Florida
  140  Statutes, is amended, and subsection (5) is added to that
  141  section, to read:
  142         400.024 Failure to satisfy a judgment or settlement
  143  agreement; required notification to claimants.—
  144         (4) If, After the agency is placed on notice pursuant to
  145  subsection (2), the following applies and:
  146         (a) If the license is subject to renewal, the agency may
  147  deny the license renewal unless compliance with this section is
  148  achieved.; and
  149         (b) If a change of ownership application for the facility
  150  at issue is filed submitted by the licensee, by a person or
  151  entity identified as having a controlling interest in the
  152  licensee, or by a related party, the agency shall deny the
  153  change of ownership application unless compliance with this
  154  section is achieved.
  155         (c)If an adverse final judgment under subsection (1) is
  156  entered but payment is not yet due and a change of ownership
  157  application for the facility at issue is submitted by the
  158  licensee, by a person or entity identified as having a
  159  controlling interest in the licensee, or by a related party, the
  160  adverse final judgment becomes the responsibility and liability
  161  of the transferee if the agency approves the change of ownership
  162  application.
  163         (5)If a change of ownership application for the facility
  164  at issue is filed by the licensee, by a person or entity
  165  identified as having a controlling interest in the licensee, or
  166  by a related party, then:
  167         (a)The licensee or transferor must provide written notice
  168  of the filing of the application to each pending claimant or the
  169  claimant’s attorney of record, if applicable. The written notice
  170  must be provided within 14 days after the date the application
  171  is filed with the agency.
  172         (b)The written notice must be provided by certified mail,
  173  return receipt requested, or other method that provides
  174  verification of receipt.
  175         (c)A claimant has 30 days after the date of receipt of the
  176  written notice to object to the application if the claimant has
  177  reason to believe that the approval of the application would
  178  facilitate a fraudulent transfer or allow the transferor to
  179  avoid financial responsibility for the claimant’s pending claim.
  180         (d)The agency must consider any objection brought pursuant
  181  to this subsection in its decision to approve or deny an
  182  application for change of ownership under this part and part II
  183  of chapter 408.
  184         (e)If a claim is pending in arbitration at the time that
  185  the application for change of ownership is filed, the claimant
  186  may file a petition to enjoin the transfer in circuit court.
  187         (f)As used in this subsection, the term “claimant” means a
  188  resident or the resident’s family or personal representative who
  189  has notified the licensee or facility of a potential claim by
  190  written notice of intent or who has initiated an action, claim,
  191  or arbitration proceeding against the licensee or facility.
  192         Section 5. Paragraphs (g), (n), and (r) of subsection (1)
  193  of section 400.141, Florida Statutes, are amended to read:
  194         400.141 Administration and management of nursing home
  195  facilities.—
  196         (1) Every licensed facility shall comply with all
  197  applicable standards and rules of the agency and shall:
  198         (g) If the facility has a standard license, exceeds the
  199  minimum required hours of direct care provided by licensed
  200  nurses nursing and certified nursing assistants assistant direct
  201  care per resident per day, and is part of a continuing care
  202  facility licensed under chapter 651 or is a retirement community
  203  that offers other services pursuant to part III of this chapter
  204  or part I or part III of chapter 429 on a single campus, be
  205  allowed to share programming and staff. At the time of
  206  inspection, a continuing care facility or retirement community
  207  that uses this option must demonstrate through staffing records
  208  that minimum staffing requirements for the facility were met.
  209  Licensed nurses and certified nursing assistants who work in the
  210  facility may be used to provide services elsewhere on campus if
  211  the facility exceeds the minimum number of direct care hours
  212  required per resident per day and the total number of residents
  213  receiving direct care services from a licensed nurse or a
  214  certified nursing assistant does not cause the facility to
  215  violate the staffing ratios required under s. 400.23(3)(b) s.
  216  400.23(3)(a). Compliance with the minimum staffing ratios must
  217  be based on the total number of residents receiving direct care
  218  services, regardless of where they reside on campus. If the
  219  facility receives a conditional license, it may not share staff
  220  until the conditional license status ends. This paragraph does
  221  not restrict the agency’s authority under federal or state law
  222  to require additional staff if a facility is cited for
  223  deficiencies in care which are caused by an insufficient number
  224  of certified nursing assistants or licensed nurses. The agency
  225  may adopt rules for the documentation necessary to determine
  226  compliance with this provision.
  227         (n) Comply with state minimum-staffing requirements:
  228         1. A facility that has failed to comply with state minimum
  229  staffing requirements for 48 2 consecutive hours days is
  230  prohibited from accepting new admissions until the facility has
  231  achieved the minimum-staffing requirements for 6 consecutive
  232  days. For the purposes of this subparagraph, any person who was
  233  a resident of the facility and was absent from the facility for
  234  the purpose of receiving medical care at a separate location or
  235  was on a leave of absence is not considered a new admission.
  236  Failure by the facility to impose such an admissions moratorium
  237  is subject to a $1,000 fine.
  238         2. A facility that does not have a conditional license may
  239  be cited for failure to comply with the standards in s.
  240  400.23(3)(b)1.b. and c. s. 400.23(3)(a)1.b. and c. only if it
  241  has failed to meet those standards for 48 on 2 consecutive hours
  242  days or if it has failed to meet at least 97 percent of those
  243  standards on any one day.
  244         3. A facility that has a conditional license must be in
  245  compliance with the standards in s. 400.23(3)(b) s. 400.23(3)(a)
  246  at all times.
  247         (r) Maintain in the medical record for each resident a
  248  daily chart of direct care certified nursing assistant services
  249  provided to the resident. The direct care staff certified
  250  nursing assistant who is caring for the resident must complete
  251  this record by the end of his or her shift. This record must
  252  indicate assistance with activities of daily living, assistance
  253  with eating, and assistance with drinking, and must record each
  254  offering of nutrition and hydration for those residents whose
  255  plan of care or assessment indicates a risk for malnutrition or
  256  dehydration.
  257         Section 6. This act shall take effect upon becoming a law.
  258  
  259  ================= T I T L E  A M E N D M E N T ================
  260  And the title is amended as follows:
  261         Delete everything before the enacting clause
  262  and insert:
  263                        A bill to be entitled                      
  264         An act relating to nursing homes; amending s. 400.021,
  265         F.S.; revising the definition of the term “resident
  266         care plan”; amending s. 400.23, F.S.; defining the
  267         terms “direct care staff” and “facility assessment”;
  268         specifying functions that do not constitute direct
  269         care staffing hours for purposes of required nursing
  270         home staffing ratios; revising nursing home staffing
  271         requirements; requiring nursing home facilities to
  272         maintain staffing records for a specified time and
  273         report staffing information consistent with federal
  274         law; providing that evidence of compliance with state
  275         minimum staffing requirements is not admissible as
  276         evidence for compliance with specified provisions of
  277         federal law; providing that eating assistance to
  278         residents provided by certain direct care staff counts
  279         toward certain minimum direct care staffing
  280         requirements; authorizing the Agency for Health Care
  281         Administration to adopt rules; amending s. 400.0234,
  282         F.S.; providing that certain information submitted to
  283         the agency is discoverable and admissible in civil and
  284         administrative proceedings; amending s. 400.024, F.S.;
  285         providing that an unsatisfied or undischarged adverse
  286         final judgment in connection with a nursing home
  287         facility becomes the responsibility and liability of a
  288         new owner if ownership of the facility is transferred;
  289         requiring a licensee to provide written notice to any
  290         pending claimants or their attorneys of record within
  291         a specified timeframe after filing a change of
  292         ownership application with the agency; providing
  293         requirements for the notice; providing that claimants
  294         may object to the application within a specified
  295         timeframe under certain circumstances; requiring the
  296         agency to consider any such objections in its
  297         decision; providing for the filing of such objections
  298         in circuit court under certain circumstances; defining
  299         the term “claimant”; amending s. 400.141, F.S.;
  300         conforming cross-references and provisions to changes
  301         made by the act; revising provisions related to
  302         facilities that fail to comply with minimum staffing
  303         requirements; providing an effective date.