Senate Bill 1960c1

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    Florida Senate - 1998                           CS for SB 1960

    By the Committee on Children, Families and Seniors and Senator
    Rossin




    300-2014B-98

  1                      A bill to be entitled

  2         An act relating to assisted living facilities

  3         and adult family-care homes; amending s.

  4         400.402, F.S.; revising definitions; amending

  5         s. 400.404, F.S.; providing additional

  6         exemptions from licensure as an assisted living

  7         facility; amending ss. 400.407, 400.408, F.S.;

  8         reorganizing and revising provisions relating

  9         to unlawful facilities; providing penalties;

10         requiring report of unlicensed facilities;

11         providing for disciplinary actions; revising

12         provisions relating to referral to unlicensed

13         facilities; providing for certain notice to

14         service providers; amending s. 400.411, F.S.;

15         revising requirements for an initial

16         application for license; providing for a fee;

17         amending s. 400.414, F.S.; revising authority

18         and grounds for denial, revocation, or

19         suspension of licenses or imposition of

20         administrative fines; specifying terms for

21         review of proceedings challenging

22         administrative actions; amending s. 400.415,

23         F.S.; requiring a facility to post notice of a

24         moratorium on admissions; providing for rules

25         establishing grounds for imposition of a

26         moratorium; amending s. 400.417, F.S.;

27         providing for coordinated expiration of a

28         facility's license; revising requirements for

29         license renewal; providing for rules; amending

30         s. 400.4174, F.S.; amending an outdated

31         reference to child abuse or neglect; amending

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  1         s. 400.4176, F.S.; revising time requirement

  2         for notice of change of administrator; amending

  3         ss. 400.418, 400.422, 400.452, 408.036, F.S.,

  4         relating to the disposition of fees and fines,

  5         receivership proceedings, staff training and

  6         education, and the review of certain projects;

  7         conforming cross-references to changes made by

  8         the act; amending s. 400.419, F.S.; revising

  9         procedures relating to violations and

10         penalties; increasing administrative fines for

11         specified classes of violations; providing

12         fines for unlicensed operation of a facility

13         and for failure to apply for a change of

14         ownership license; authorizing a survey fee to

15         cover the cost of certain complaint

16         investigations; providing for corrective action

17         plans to correct violations; expanding

18         dissemination of information regarding

19         facilities sanctioned or fined; amending s.

20         400.4195, F.S., relating to prohibitions and

21         rebates; creating s. 400.4256, F.S., relating

22         to assistance with the self-administration of

23         medication; amending s. 400.428, F.S.;

24         providing for surveys to determine compliance

25         with facility standards and residents' rights;

26         amending s. 400.474, F.S.; providing for

27         disciplinary action against a home health

28         agency or employee who knowingly provides

29         services in an unlicensed assisted living

30         facility or adult family-care home; amending s.

31         400.618, F.S.; revising the definition of the

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  1         term "adult-family care home"; amending s.

  2         394.4574, F.S.; requiring district

  3         administrators of the Department of Children

  4         and Family Services to develop plans to ensure

  5         the provision of mental health and substance

  6         abuse treatment services to residents of

  7         assisted living facilities that hold a limited

  8         mental health license; providing an effective

  9         date.

10

11  Be It Enacted by the Legislature of the State of Florida:

12

13         Section 1.  Section 400.402, Florida Statutes, is

14  amended to read:

15         400.402  Definitions.--When used in this part, unless

16  the context otherwise requires, the term:

17         (1)  "Activities of daily living" means functions and

18  tasks for self-care, including ambulation, bathing, dressing,

19  eating, grooming, and toileting, and other similar tasks.

20         (2)  "Administrator" means an individual at least 21

21  years of age who is responsible for the operation and

22  maintenance who has general administrative charge of an

23  assisted living facility.

24         (3)  "Assisted living facility," hereinafter referred

25  to as "facility," means any building or buildings, section of

26  a building, or distinct part of a building, residence, private

27  home, boarding home, home for the aged, or other place,

28  whether operated for profit or not, which undertakes through

29  its ownership or management to provide, for a period exceeding

30  24 hours, housing, food service, and one or more personal

31  services for four or more adults, not related to the owner or

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  1  administrator by blood or marriage, who require such services;

  2  or to provide extended congregate care, limited nursing

  3  services, or limited mental health services, when specifically

  4  licensed to do so pursuant to s. 400.407, unless the facility

  5  is licensed as an adult family-care home.  A facility offering

  6  personal services, extended congregate care, limited nursing

  7  services, or limited mental health services for fewer than

  8  four adults is within the meaning of this definition if it

  9  formally or informally advertises to or solicits the public

10  for residents or referrals and holds itself out to the public

11  to be an establishment which regularly provides such services,

12  unless the facility is licensed as an adult family-care home.

13         (3)(4)  "Agency" means the Agency for Health Care

14  Administration.

15         (4)(5)  "Aging in place" or "age in place" means the

16  process of providing increased or adjusted services to a

17  person to compensate for by which a person chooses to remain

18  in a residential environment despite the physical or mental

19  decline that may occur with the aging process, in order to

20  maximize.  For aging in place to occur, needed services are

21  added, increased, or adjusted to compensate for the physical

22  or mental decline of the individual, while maximizing the

23  person's dignity and independence and permit them to remain in

24  a familiar, noninstitutional, residential environment for as

25  long as possible.  Such services may be provided by facility

26  staff, volunteers, family, or friends, or through contractual

27  arrangements with a third party.

28         (5)(6)  "Applicant" means an individual owner,

29  corporation, partnership, firm, association, or governmental

30  entity that applies any facility owner, or if a business

31

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  1  entity, a person appointed by such entity to make application

  2  for a license.

  3         (7)  "Assistance with activities of daily living" means

  4  direct physical assistance with activities of daily living as

  5  defined in subsection (1).

  6         (6)  "Assisted living facility" means any building or

  7  buildings, section or distinct part of a building, private

  8  home, boarding home, home for the aged, or other residential

  9  facility, whether operated for profit or not, which undertakes

10  through its ownership or management to provide housing, meals,

11  and one or more personal services for a period exceeding 24

12  hours to one or more adults who are not relatives of the owner

13  or administrator.

14         (7)(8)  "Chemical restraint" means a pharmacologic drug

15  that physically limits, restricts, or deprives an individual

16  of movement or mobility, and is used for discipline or

17  convenience and not required for the treatment of medical

18  symptoms.

19         (8)(9)  "Community living support plan" means a written

20  document prepared by a mental health resident and the

21  resident's mental health case manager of that resident in

22  consultation with the administrator of an assisted living the

23  facility with a limited mental health license or the

24  administrator's designee. A copy must be provided to the

25  administrator. The plan must include information about the

26  supports, services, and special needs of the resident which

27  enable the resident to live in the assisted living facility

28  and a method by which facility staff can recognize and respond

29  to the signs and symptoms particular to that resident which

30  indicate the need for professional services.

31

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  1         (9)(10)  "Cooperative agreement" means a written

  2  statement of understanding between a mental health care

  3  services provider and the administrator of the assisted living

  4  facility with a limited mental health license in which a

  5  mental health resident is living. The agreement must specify

  6  specifies directions for accessing emergency and after-hours

  7  care for the mental health resident and a method by which the

  8  staff of the facility can recognize and respond to the signs

  9  and symptoms particular to that mental health resident that

10  indicate the need for professional services. The cooperative

11  agreement may be a component of the community living support

12  plan. A single cooperative agreement may service all mental

13  health residents who are clients of the same mental health

14  care provider.

15         (10)(11)  "Department" means the Department of Elderly

16  Affairs.

17         (11)(12)  "Emergency" means a situation, physical

18  condition, or method of operation which presents imminent

19  danger of death or serious physical or mental harm to facility

20  residents.

21         (12)(13)  "Extended congregate care" means acts beyond

22  those authorized in subsection (17) (16) that may be performed

23  pursuant to chapter 464 by persons licensed thereunder while

24  carrying out their professional duties, and other supportive

25  services which may be specified by rule.  The purpose of such

26  services is to enable residents to age in place in a

27  residential environment despite mental or physical limitations

28  that might otherwise disqualify them from residency in a

29  facility licensed under this part.

30         (13)(14)  "Guardian" means a person to whom the law has

31  entrusted the custody and control of the person or property,

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  1  or both, of a person who has been legally adjudged

  2  incapacitated.

  3         (14)(15)  "Limited nursing services" means acts that

  4  may be performed pursuant to chapter 464 by persons licensed

  5  thereunder while carrying out their professional duties but

  6  limited to those acts which the department specifies by rule.

  7  Acts which may be specified by rule as allowable limited

  8  nursing services shall be for persons who meet the admission

  9  criteria established by the department for assisted living

10  facilities and shall not be complex enough to require 24-hour

11  nursing supervision and may include such services as the

12  application and care of routine dressings, and care of casts,

13  braces, and splints.

14         (15)(16)  "Managed risk" means the process by which the

15  facility staff discuss the service plan and the needs of the

16  resident with the resident and, if applicable, the resident's

17  representative or designee or the resident's surrogate,

18  guardian, or attorney in fact, in such a way that the

19  consequences of a decision, including any inherent risk, are

20  explained to all parties and reviewed periodically in

21  conjunction with the service plan, taking into account changes

22  in the resident's status and the ability of the facility to

23  respond accordingly.

24         (16)(17)  "Mental health resident" means an individual

25  who receives social security disability income due to a mental

26  disorder as determined by the Social Security Administration

27  or receives supplemental security income due to a mental

28  disorder as determined by the Social Security Administration

29  and receives optional state supplementation.

30         (17)(18)  "Personal services" means direct physical

31  include, but are not limited to, such services as:  individual

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  1  assistance with or supervision of the essential activities of

  2  daily living and the self-administration of medication as

  3  defined in subsection (1), and other similar services which

  4  the department may define by rule.  "Personal services" shall

  5  not be construed to mean the provision of medical, nursing,

  6  dental, or mental health services by the staff of a facility,

  7  except as provided in this part. In addition, an emergency

  8  response device installed in the apartment or living area of a

  9  resident shall not be classified as a personal service.

10         (18)(19)  "Physical restraint" means a device which

11  physically limits, restricts, or deprives an individual of

12  movement or mobility, including, but not limited to, a

13  half-bed rail, a full-bed rail, a geriatric chair, and a posey

14  restraint. The term "physical restraint" shall also include

15  any device which was not specifically manufactured as a

16  restraint but which has been altered, arranged, or otherwise

17  used for this purpose. The term shall not include bandage

18  material used for the purpose of binding a wound or injury.

19         (19)  "Relative" means an individual who is the father,

20  mother, stepfather, stepmother, son, daughter, brother,

21  sister, grandmother, grandfather, great-grandmother,

22  great-grandfather, grandson, granddaughter, uncle, aunt, first

23  cousin, nephew, niece, husband, wife, father-in-law,

24  mother-in-law, son-in-law, daughter-in-law, brother-in-law,

25  sister-in-law, stepson, stepdaughter, stepbrother, stepsister,

26  half-brother, or half-sister of an owner or administrator.

27         (20)  "Resident" means a person 18 years of age or

28  older, residing in and receiving care from a facility.

29         (21)  "Resident's representative or designee" means a

30  person other than the owner, or an agent or employee of the

31  facility, designated in writing by the resident, if legally

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  1  competent, to receive notice of changes in the contract

  2  executed pursuant to s. 400.424; to receive notice of and to

  3  participate in meetings between the resident and the facility

  4  owner, administrator, or staff concerning the rights of the

  5  resident; to assist the resident in contacting the ombudsman

  6  council if the resident has a complaint against the facility;

  7  or to bring legal action on behalf of the resident pursuant to

  8  s. 400.429.

  9         (22)  "Service plan" means a written plan, developed

10  and agreed upon by the resident and, if applicable, the

11  resident's representative or designee or the resident's

12  surrogate, guardian, or attorney in fact, if any, and the

13  administrator or designee representing the facility, which

14  addresses the unique physical and psychosocial needs,

15  abilities, and personal preferences of each resident receiving

16  extended congregate care services. The plan shall include a

17  brief written description, in easily understood language, of

18  what services shall be provided, who shall provide the

19  services, when the services shall be rendered, and the

20  purposes and benefits of the services.

21         (23)  "Shared responsibility" means exploring the

22  options available to a resident within a facility and the

23  risks involved with each option when making decisions

24  pertaining to the resident's abilities, preferences, and

25  service needs, thereby enabling the resident and, if

26  applicable, the resident's representative or designee, or the

27  resident's surrogate, guardian, or attorney in fact, and the

28  facility to develop a service plan which best meets the

29  resident's needs and seeks to improve the resident's quality

30  of life.

31

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  1         (24)  "Supervision of activities of daily living" means

  2  reminding residents to engage in activities of daily living

  3  and the self-administration of medication, and, when

  4  necessary, observing or providing verbal cuing to residents

  5  while they perform these activities.

  6         (25)  "Supervision of self-administered medication"

  7  means reminding residents to take medication, opening bottle

  8  caps for residents, opening prepackaged medication for

  9  residents, reading the medication label to residents,

10  observing residents while they take medication, checking the

11  self-administered dosage against the label of the container,

12  reassuring residents that they have obtained and are taking

13  the dosage as prescribed, keeping daily records of when

14  residents receive supervision pursuant to this subsection, and

15  immediately reporting noticeable changes in the condition of a

16  resident to the resident's physician and the resident's case

17  manager, if one exists.  Residents who are capable of

18  administering their own medication shall be allowed to do so.

19         (25)(26)  "Supplemental security income," Title XVI of

20  the Social Security Act, means a program through which the

21  Federal Government guarantees a minimum monthly income to

22  every person who is age 65 or older, or disabled, or blind and

23  meets the income and asset requirements.

24         (26)(27)  "Supportive services" means services designed

25  to encourage and assist aged persons or adults with

26  disabilities to remain in the least restrictive living

27  environment and to maintain their independence as long as

28  possible.

29         (27)(28)  "Twenty-four-hour nursing supervision" means

30  services that are ordered by a physician for a resident whose

31  condition requires the supervision of a physician and

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  1  continued monitoring of vital signs and physical status.  Such

  2  services shall be:  medically complex enough to require

  3  constant supervision, assessment, planning, or intervention by

  4  a nurse; required to be performed by or under the direct

  5  supervision of licensed nursing personnel or other

  6  professional personnel for safe and effective performance;

  7  required on a daily basis; and consistent with the nature and

  8  severity of the resident's condition or the disease state or

  9  stage.

10         Section 2.  Subsection (2) of section 400.404, Florida

11  Statutes, is amended to read:

12         400.404  Facilities to be licensed; exemptions.--

13         (2)  The following are exempt from licensure under this

14  part:

15         (a)  Any facility, institution, or other place operated

16  by the Federal Government or any agency of the Federal

17  Government.

18         (b)  Any facility or part of a facility licensed under

19  chapter 393 or chapter 394.

20         (c)  Any facility licensed as an adult family-care home

21  under part VII.

22         (d)  Any person who provides housing, meals, and one or

23  more personal services on a 24-hour basis in the person's own

24  home to not more than two adults who do not receive optional

25  state supplementation. The person who provides the housing,

26  meals, and personal services must own or rent the home and

27  reside therein.

28         (e)(c)  Any home or facility approved by the United

29  States Department of Veterans Affairs as a residential care

30  home wherein care is provided exclusively to three or fewer

31  veterans.

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  1         (f)(d)  Any facility that has been incorporated in this

  2  state for 50 years or more on or before July 1, 1983, and the

  3  board of directors of which is nominated or elected by the

  4  residents, until the facility is sold or its ownership is

  5  transferred; or any facility, with improvements or additions

  6  thereto, which has existed and operated continuously in this

  7  state for 60 years or more on or before July 1, 1989, is

  8  directly or indirectly owned and operated by a nationally

  9  recognized fraternal organization, is not open to the public,

10  and accepts only its own members and their spouses as

11  residents.

12         (g)(e)  Any facility certified under chapter 651, or a

13  retirement community, may provide services authorized under

14  this part or part IV of this chapter to its residents who live

15  in single-family homes, duplexes, quadruplexes, or apartments

16  located on the campus without obtaining a license to operate

17  an assisted living facility if residential units within such

18  buildings are used by residents who do not require staff

19  supervision for that portion of the day when personal services

20  are not being delivered and the owner obtains a home health

21  license to provide such services.  However, any building or

22  distinct part of a building on the campus that is designated

23  for persons who receive personal services and require

24  supervision beyond that which is available while such services

25  are being rendered must be licensed in accordance with this

26  part. If a facility provides personal services to residents

27  who do not otherwise require supervision and the owner is not

28  licensed as a home health agency, the buildings or distinct

29  parts of buildings where such services are rendered must be

30  licensed under this part. A resident of a facility that

31  obtains a home health license may contract with a home health

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  1  agency of his or her choice, provided that the home health

  2  agency provides liability insurance and workers' compensation

  3  coverage for its employees. Facilities covered by this

  4  exemption may establish policies that give residents the

  5  option of contracting for services and care beyond that which

  6  is provided by the facility to enable them to age in place.

  7  For purposes of this section, a retirement community consists

  8  of a facility licensed under this part or under part II, and

  9  apartments designed for independent living located on the same

10  campus.

11         Section 3.  Subsection (1) of section 400.407, Florida

12  Statutes, is amended to read:

13         400.407  License required; fee, display.--

14         (1)(a)  A license issued by the agency is required for

15  an assisted living facility operating in this state. It is

16  unlawful to operate or maintain a facility without first

17  obtaining from the agency a license authorizing such

18  operation.

19         (b)1.  Any person found guilty of violating paragraph

20  (a) who, upon notification by the agency, fails, within 10

21  working days after receiving such notification, to apply for a

22  license commits a felony of the third degree, punishable as

23  provided in s. 775.082, s. 775.083, or s. 775.084.

24         2.  Any person found to be in violation of paragraph

25  (a) due to a change in s. 400.402(3), (18), (24), or (25) or a

26  modification in department policy pertaining to personal

27  services as provided for in s. 400.402 and who, upon

28  notification by the agency, fails, within 10 working days

29  after receiving such notification, to apply for a license

30  commits a felony of the third degree, punishable as provided

31  in s. 775.082, s. 775.083, or s. 775.084.

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  1         3.  Except as provided for in subparagraph 2., any

  2  person who violates paragraph (a) who previously operated a

  3  licensed facility or concurrently operates a licensed facility

  4  and an unlicensed facility commits a felony of the third

  5  degree, punishable as provided in s. 775.082, s. 775.083, or

  6  s. 775.084.

  7         4.  Any person who fails to obtain a license after

  8  agency notification may be fined for each day of noncompliance

  9  pursuant to s. 400.419(1)(b).

10         5.  When an owner has an interest in more than one

11  facility, and fails to license any one of these facilities,

12  the agency may revoke the license or impose a moratorium on

13  any or all of the licensed facilities until such time as the

14  delinquent facility is licensed.

15         6.  If the agency determines that an owner is operating

16  or maintaining a facility without obtaining a license

17  authorizing such operation and determines that a condition

18  exists in the facility that poses a threat to the health,

19  safety, or welfare of a resident of the facility, the owner

20  commits neglect as defined in s. 415.102 and is subject to the

21  same actions and penalties specified in ss. 400.414 and

22  400.419 for a negligent act seriously affecting the health,

23  safety, or welfare of a resident of the facility.

24         Section 4.  Section 400.408, Florida Statutes, is

25  amended to read:

26         400.408  Unlicensed facilities; referral of person for

27  residency to unlicensed facility; penalties penalty;

28  verification of licensure status.--

29         (1)(a)  It is unlawful to own, operate, or maintain an

30  assisted living facility without obtaining a license under

31  this part.

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  1         (b)  Except as provided under paragraph (d), any person

  2  who owns, operates, or maintains an unlicensed assisted living

  3  facility commits a felony of the third degree, punishable as

  4  provided in s. 775.082, s. 775.083, or s. 775.084. Application

  5  for licensure within 10 working days after notification shall

  6  be an affirmative defense to this felony violation.

  7         (c)  Any person found guilty of violating paragraph (a)

  8  a second or subsequent time, commits a felony of the second

  9  degree, punishable as provided under s. 775.082, s. 775.083,

10  or s. 775.084.

11         (d)  Any person who owns, operates, or maintains an

12  unlicensed assisted living facility due to a change in this

13  part or a modification in department rule within 6 months

14  after the effective date of such change and who, within 10

15  working days after receiving notification from the agency,

16  fails to cease operation or apply for a license under this

17  part commits a felony of the third degree, punishable as

18  provided in s. 775.082, s. 775.083, or s. 775.084.

19         (e)  Pursuant to this subsection, any facility that

20  fails to apply for a license or cease operation after agency

21  notification may be fined for each day of noncompliance

22  pursuant to s. 400.419.

23         (f)  When a licensee has an interest in more than one

24  assisted living facility, and fails to license any one of

25  these facilities, the agency may revoke the license or impose

26  a moratorium on any or all of the licensed facilities until

27  such time as the unlicensed facility applies for licensure or

28  ceases operation.

29         (g)  If the agency determines that an owner is

30  operating or maintaining an assisted living facility without

31  obtaining a license and determines that a condition exists in

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  1  the facility that poses a threat to the health, safety, or

  2  welfare of a resident of the facility, the owner is subject to

  3  the same actions and fines imposed against a licensed facility

  4  as specified in ss. 400.414 and 400.419.

  5         (h)  Any person aware of the operation of an unlicensed

  6  assisted living facility must report that facility to the

  7  agency. The agency shall provide to the department and to

  8  elder information and referral providers a list, by county, of

  9  licensed assisted living facilities, to assist persons who are

10  considering an assisted living facility placement in locating

11  a licensed facility.

12         (2)(1)  It is unlawful to knowingly refer a person for

13  residency to an unlicensed facility that provides services

14  that may only be provided by an assisted living facility; to

15  an assisted living facility the license of which is under

16  denial or has been suspended or revoked; or to an assisted

17  living a facility that has a moratorium on admissions.  Any

18  person who violates this subsection commits is guilty of a

19  noncriminal violation, punishable by a fine not exceeding $500

20  as provided in s. 775.083.

21         (a)  Any employee of the agency or department, or the

22  Department of Children and Family Health and Rehabilitative

23  Services, who knowingly refers a person for residency to an

24  unlicensed facility; to a facility the license of which is

25  under denial or has been suspended or revoked; or to a

26  facility that has a moratorium on admissions is subject to

27  disciplinary action by the agency or department, or the

28  Department of Children and Family Health and Rehabilitative

29  Services.

30         (b)  The employer of any person who is under contract

31  with the agency or department, or the Department of Children

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  1  and Family Health and Rehabilitative Services, and who

  2  knowingly refers a person for residency to an unlicensed

  3  facility; to a facility the license of which is under denial

  4  or has been suspended or revoked; or to a facility that has a

  5  moratorium on admissions shall be fined and required to

  6  prepare a corrective action plan designed to prevent such

  7  referrals.

  8         (c)(2)  The agency shall provide the department and the

  9  Department of Children and Family Health and Rehabilitative

10  Services with a list of licensed facilities within each county

11  and shall update the list at least quarterly monthly.

12         (d)(3)  At least annually, the agency shall notify, in

13  appropriate trade publications as defined by rule, physicians

14  licensed under chapter 458 or chapter 459 pursuant to chapter

15  458, osteopathic physicians licensed pursuant to chapter 459,

16  hospitals licensed under pursuant to part I of chapter 395,

17  and nursing home facilities licensed under pursuant to part II

18  of this chapter, and employees of the agency or the

19  department, or the Department of Children and Family Health

20  and Rehabilitative Services, who are responsible having a

21  responsibility for referring persons for residency, that it is

22  unlawful to knowingly refer a person for residency to an

23  unlicensed assisted living facility and shall notify them of

24  the penalty for violating such prohibition. The department and

25  the Department of Children and Family Services shall, in turn,

26  notify service providers under contract to the respective

27  departments who have responsibility for resident referrals to

28  facilities. Further, the notice must direct each noticed

29  facility and individual to contact the appropriate agency

30  office in order to verify the licensure status of any facility

31  prior to referring any person for residency. Each notice must

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  1  include the name, telephone number, and mailing address of the

  2  appropriate office to contact.

  3         Section 5.  Section 400.411, Florida Statutes, is

  4  amended to read:

  5         400.411  Initial application for license; provisional

  6  license.--

  7         (1)  Application for license shall be made to the

  8  agency on forms furnished by it and shall be accompanied by

  9  the appropriate license fee. The application shall contain

10  sufficient information, as required by rules of the

11  department, to establish that the applicant can provide

12  adequate care.

13         (2)  The applicant may be an individual owner,

14  corporation, partnership, firm, association, or governmental

15  entity.

16         (3)(2)  The application shall be signed by the

17  applicant under oath and shall contain the following:

18         (a)  The name, address, date of birth, and social

19  security number of the applicant and the name by which the

20  facility is to be known.  Pursuant thereto:

21         1.  If the applicant is a firm, partnership, or

22  association, the application shall contain the name, address,

23  date of birth, and social security number of every member

24  thereof.

25         2.  If the applicant is a corporation, the application

26  shall contain the corporation's its name and address, the

27  name, address, date of birth, and social security number of

28  each of its directors and officers, and the name and address

29  of each person having at least a 5-percent ownership

30  10-percent interest in the corporation.

31

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  1         (b)  The name and address of any professional service,

  2  firm, association, partnership, or corporation that is to

  3  provide goods, leases, or services to the facility for which

  4  the application is made, if a 5-percent 10-percent or greater

  5  interest in the service, firm, association, partnership, or

  6  corporation is owned by a person whose name must be listed on

  7  the application under paragraph (a).

  8         (c)  Information sufficient that provides a source to

  9  establish the suitable character, financial stability, and

10  competency of the applicant and of each person specified in

11  the application under subparagraph (a)1. or subparagraph (a)2.

12  who has at least a 10-percent interest in the firm,

13  partnership, association, or corporation and, if different

14  from the applicant, applicable, of the administrator, and

15  financial officer. including

16         (d)  The name and address of any long-term care

17  facility with which the applicant, or administrator, or

18  financial officer has been affiliated through ownership or

19  employment within 5 years of the date of this license the

20  application for a license; and a signed affidavit disclosing

21  any financial or ownership interest that the applicant, or any

22  person listed in paragraph (a) principal, partner, or

23  shareholder thereof, holds or has held within the last 5 years

24  in any other facility licensed under this part, or in any

25  other entity licensed by this the state or another state to

26  provide health or residential care, which facility or entity

27  closed or ceased to operate as a result of financial problems,

28  or has had a receiver appointed or a license denied, suspended

29  or revoked, or was subject to a moratorium on admissions, or

30  had an injunctive proceeding initiated against it.

31

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  1         (e)(d)  The names and addresses of other persons of

  2  whom the agency may inquire as to the character, and

  3  reputation, and financial responsibility of the owner and, if

  4  different from the applicant, the administrator and financial

  5  officer applicant and, if applicable, of the administrator.

  6         (e)  The names and addresses of other persons of whom

  7  the agency may inquire as to the financial responsibility of

  8  the applicant.

  9         (f)  Identification of all other homes or facilities,

10  including the addresses and the license or licenses under

11  which they operate, if applicable, which are currently

12  operated by the applicant or administrator and which provide

13  housing, meals, and personal services to residents adults.

14         (g)  Such other reasonable information as may be

15  required by the agency to evaluate the ability of the

16  applicant to meet the responsibilities entailed under this

17  part.

18         (g)(h)  The location of the facility for which a

19  license is sought and documentation, signed by the appropriate

20  local government official, which states that the applicant has

21  met local zoning requirements.

22         (h)(i)  The name, address, date of birth, social

23  security number, education, and experience of the

24  administrator if different from the applicant.

25         (4)(3)  The applicant shall furnish satisfactory proof

26  of financial ability to operate and conduct the facility in

27  accordance with the requirements of this part. A certificate

28  of authority, pursuant to chapter 651, may be provided as

29  proof of financial ability. An applicant applying for an

30  initial license shall submit a balance sheet setting forth the

31  assets and liabilities of the owner and a statement projecting

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  1  revenues, expenses, taxes, extraordinary items, and other

  2  credits or charges for the first 12 months of operation of the

  3  facility.

  4         (5)(4)  If the applicant is a continuing care facility

  5  certified under chapter 651, a copy of the facility's

  6  certificate of authority must be provided offers continuing

  7  care agreements, as defined in chapter 651, proof shall be

  8  furnished that the applicant has obtained a certificate of

  9  authority as required for operation under that chapter.

10         (6)(5)  The applicant shall provide proof of liability

11  insurance as defined in s. 624.605.

12         (7)(6)  If the applicant is a community residential

13  home, the applicant must provide proof that it has met the

14  requirements specified in chapter 419 shall apply to community

15  residential homes zoned single-family or multifamily.

16         (8)(7)  The applicant must provide the agency with

17  proof of legal right to occupy the property.  This proof may

18  include, but is not limited to, copies of recorded warranty

19  deeds, or copies of lease or rental agreements, contracts for

20  deeds, quitclaim deeds, or other such documentation.

21         (9)(8)  The applicant must furnish proof that the

22  facility has received a satisfactory firesafety inspection.

23  The local fire marshal or other authority having jurisdiction

24  or the State Fire Marshal must conduct the inspection within

25  30 days after the written request by the applicant. If an

26  authority having jurisdiction does not have a certified

27  firesafety inspector, the State Fire Marshal shall conduct the

28  inspection.

29         (10)  The applicant must furnish documentation of a

30  satisfactory sanitation inspection of the facility by the

31  county health department.

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  1         (11)(9)  A provisional license may be issued to an

  2  applicant making initial application for licensure or making

  3  application for a change of ownership.  A provisional license

  4  shall be limited in duration to a specific period of time not

  5  to exceed 6 months, as determined by the agency.

  6         (12)(10)  No county or municipality shall issue an

  7  occupational license which is being obtained for the purpose

  8  of operating a facility regulated under this part without

  9  first ascertaining that the applicant has been licensed to

10  operate such facility at the specified location or locations

11  by the agency.  The agency shall furnish to local agencies

12  responsible for issuing occupational licenses sufficient

13  instruction for making such the above-required determinations.

14         Section 6.  Section 400.414, Florida Statutes, is

15  amended to read:

16         400.414  Denial, revocation, or suspension of license;

17  imposition of administrative fine; grounds.--

18         (1)  The agency may deny, revoke, or suspend any a

19  license issued under this part or impose an administrative

20  fine in the manner provided in chapter 120. At the chapter 120

21  hearing, the agency shall prove by a preponderance of the

22  evidence that its actions are warranted.

23         (2)  Any of the following actions by an assisted living

24  facility or any facility employee a facility or its employee

25  shall be grounds for action by the agency against a licensee:

26         (a)  An intentional or negligent act seriously

27  affecting the health, safety, or welfare of a resident of the

28  facility.

29         (b)  The determination by the agency that the facility

30  owner, or administrator, or financial officer is not of

31  suitable character or competency, or that the owner lacks the

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  1  financial ability, to provide continuing adequate care to

  2  residents, pursuant to the information obtained through s.

  3  400.411, s. 400.417, or s. 400.434.

  4         (c)  Misappropriation or conversion of the property of

  5  a resident of the facility.

  6         (d)  Failure to follow the criteria and procedures

  7  provided under part I of chapter 394 relating to the

  8  transportation, voluntary admission, and involuntary

  9  examination of a facility resident.

10         (e)  One or more class I, three or more class II, or

11  five or more repeated or recurring identical or similar class

12  III violations of this part which were identified by the

13  agency within the last 2 years during the last biennial

14  inspection, monitoring visit, or complaint investigation and

15  which, in the aggregate, affect the health, safety, or welfare

16  of the facility residents.

17         (f)  A confirmed report of adult abuse, neglect, or

18  exploitation, as defined in s. 415.102, which has been upheld

19  following a chapter 120 hearing or a waiver of such

20  proceedings where the perpetrator is an employee, volunteer,

21  administrator, or owner, or otherwise has access to the

22  residents of a facility, and the owner or administrator has

23  not taken action to remove the perpetrator. Exemptions from

24  disqualification may be granted as set forth in s. 435.07. No

25  administrative action may be taken against the facility if the

26  perpetrator is granted an exemption.

27         (g)  Violation of a moratorium.

28         (h)  Failure of the license applicant, the licensee

29  during relicensure, or failure of a licensee that holds a

30  provisional an initial or change of ownership license, to meet

31  the minimum license standards or the requirements of rules

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  1  adopted under this part, or related rules, at the time of

  2  license application or renewal.

  3         (i)  A fraudulent statement or omission of any material

  4  fact on an application for a license or any other document

  5  required by the agency that is signed and notarized.

  6         (j)  An intentional or negligent life-threatening act

  7  in violation of the uniform firesafety standards for assisted

  8  living facilities or other firesafety standards established by

  9  the State Fire Marshal, that threatens the health, safety, or

10  welfare of a resident of a facility, as communicated to the

11  agency by the local State Fire Marshal, a local fire marshal,

12  or other authority having jurisdiction or the State Fire

13  Marshal.

14         (k)  Knowingly operating any unlicensed facility or

15  providing without a license any service that must be licensed

16  under this chapter.

17

18  Administrative proceedings challenging agency action under

19  this subsection shall be reviewed on the basis of the facts

20  and conditions that resulted in the agency action.

21         (3)  Proceedings brought under paragraphs (2)(a), (c),

22  (e), and (j) shall not be subject to de novo review.

23         (2)(4)  Upon notification by the local State Fire

24  Marshal, local fire marshal, or other authority having

25  jurisdiction or the State Fire Marshal, the agency may deny or

26  revoke the license of an assisted living a facility that fails

27  to correct cited fire code violations issued by the State Fire

28  Marshal, a local fire marshal, or other authority having

29  jurisdiction, that affect or threaten the health, safety, or

30  welfare of a resident of a facility.

31

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  1         (3)  The agency may deny a license to any applicant or

  2  to any officer or board member of an applicant who is a firm,

  3  corporation, partnership, or association or who owns 5 percent

  4  or more of the facility, if the applicant, officer, or board

  5  member has or had a 25 percent or greater financial or

  6  ownership interest in any other facility licensed under this

  7  part, or in any entity licensed by this state or another state

  8  to provide health or residential care, which facility or

  9  entity during the 5 years prior to the application for a

10  license closed due to financial inability to operate; had a

11  receiver appointed or a license denied, suspended, or revoked;

12  was subject to a moratorium on admissions; had an injunctive

13  proceeding initiated against it; or has an outstanding fine

14  assessed under this chapter.

15         (4)  The agency shall deny or revoke the license of an

16  assisted living facility that has two or more class I

17  violations that are similar or identical to violations

18  identified by the agency during a survey, inspection,

19  monitoring visit, or complaint investigation occurring within

20  the previous 2 years.

21         (5)  The agency may deny a license to an applicant who

22  owns 25 percent or more of, or operates, a facility which,

23  during the 5 years prior to the application for a license, has

24  had a license denied, suspended, or revoked pursuant to

25  subsection (2), or, during the 2 years prior to the

26  application for a license, has had a moratorium imposed on

27  admissions, has had an injunctive proceeding initiated against

28  it, has had a receiver appointed, was closed due to financial

29  inability to operate, or has an outstanding fine assessed

30  under this part.

31

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  1         (5)(6)  An action taken by the agency to suspend, deny,

  2  or revoke a facility's license under this part, in which the

  3  agency claims that the facility owner or an employee of the

  4  facility has threatened the health, safety, or welfare of a

  5  resident of the facility, shall, upon receipt of the

  6  facility's request for a hearing, be heard by the Division of

  7  Administrative Hearings of the Department of Management

  8  Services within 120 days after the request for a hearing,

  9  unless that time period is waived by both parties.  The

10  administrative law judge must render a decision within 30 days

11  after the hearing after receipt of a proposed recommended

12  order.

13         (6)(7)  The agency shall provide to the Division of

14  Hotels and Restaurants of the Department of Business and

15  Professional Regulation, on a monthly basis, a list of those

16  assisted living facilities which have had their licenses

17  denied, suspended, or revoked or which are involved in an

18  appellate proceeding pursuant to s. 120.60 related to the

19  denial, suspension, or revocation of a license.

20         (7)  Agency notification of license suspension,

21  revocation, or denial of a license renewal shall be posted and

22  visible to the public at the facility.

23         Section 7.  Section 400.415, Florida Statutes, is

24  amended to read:

25         400.415  Moratorium on admissions; notice.--The agency

26  may impose an immediate moratorium on admissions to any

27  assisted living facility if when the agency determines that

28  any condition in the facility presents a threat to the health,

29  safety, or welfare of the residents in the facility.

30         (1)  A facility the license of which is denied,

31  revoked, or suspended pursuant to as a result of a violation

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  1  of s. 400.414 may be subject to immediate imposition of a

  2  moratorium on admissions to run concurrently with licensure

  3  denial, revocation, or suspension.

  4         (2)  When a moratorium is placed on a facility, notice

  5  of the moratorium shall be posted and visible to the public at

  6  the facility until the moratorium is lifted.

  7         (3)  The department may by rule establish conditions

  8  that constitute grounds for imposing a moratorium on a

  9  facility and procedures for imposing and lifting a moratorium,

10  as necessary to administer this section.

11         Section 8.  Section 400.417, Florida Statutes, is

12  amended to read:

13         400.417  Expiration of license; renewal; conditional

14  license.--

15         (1)  Biennial licenses issued for the operation of a

16  facility, unless sooner suspended or revoked, shall expire

17  automatically 2 years from the date of issuance. Limited

18  nursing, extended congregate care, and limited mental health

19  licenses shall expire at the same time as the facility's

20  standard license, regardless of when issued. The agency shall

21  notify the facility by certified mail at least 120 days prior

22  to the expiration of the license that a renewal license

23  relicensure is necessary to continue operation.  Ninety days

24  prior to the expiration date, an application for renewal shall

25  be submitted to the agency.  Fees must be pro-rated. A license

26  shall be renewed upon the filing of an application on forms

27  furnished by the agency if the applicant has first met the

28  requirements established under this part and all rules

29  promulgated under this part. The failure to file a timely

30  renewal application shall result in a late fee charged to the

31  facility in an amount equal to 50 percent of the current fee

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  1  in effect on the last preceding regular renewal date.  Late

  2  fees shall be deposited into the Health Care Trust Fund as

  3  provided in s. 400.418.  The facility shall file with the

  4  application satisfactory proof of ability to operate and

  5  conduct the facility in accordance with the requirements of

  6  this part.

  7         (2)  A license shall be renewed within 90 days upon the

  8  timely filing of an application on forms furnished by the

  9  agency and the provision of satisfactory proof of ability to

10  operate and conduct the facility in accordance with the

11  requirements of this part and adopted rules, including An

12  applicant for renewal of a license must furnish proof that the

13  facility has received a satisfactory firesafety inspection,

14  conducted by the local fire marshal or other authority having

15  jurisdiction or the State Fire Marshal, within the preceding

16  12 months.

17         (3)  An applicant for renewal of a license who has

18  complied on the initial license application with the

19  provisions of s. 400.411 with respect to proof of financial

20  ability to operate shall not be required to provide further

21  proof of financial ability on renewal applications unless the

22  facility or any other facility owned or operated in whole or

23  in part by the same person or business entity has demonstrated

24  financial instability as provided under s. 400.447(2)

25  evidenced by bad checks, delinquent accounts, or nonpayment of

26  withholding taxes, utility expenses, or other essential

27  services or unless the agency suspects that the facility is

28  not financially stable as a result of the annual survey or

29  complaints from the public or a report from the State

30  Long-Term Care Ombudsman Council.  Each facility must shall

31  report to the agency any adverse court action concerning the

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  1  facility's financial viability, within 7 days after its

  2  occurrence.  The agency shall have access to books, records,

  3  and any other financial documents maintained by the facility

  4  to the extent necessary to determine the facility's financial

  5  stability carry out the purpose of this section.  A license

  6  for the operation of a facility shall not be renewed if the

  7  licensee has any outstanding fines assessed pursuant to this

  8  part which are in final order status.

  9         (4)(2)  A licensee against whom a revocation or

10  suspension proceeding is pending at the time of license

11  renewal may be issued a conditional license effective until

12  final disposition by the agency of such proceeding.  If

13  judicial relief is sought from the final disposition, the

14  court having jurisdiction may issue a conditional license for

15  the duration of the judicial proceeding.

16         (5)(3)  A conditional license may be issued to an

17  applicant for license renewal if when the applicant fails to

18  meet all standards and requirements for licensure.  A

19  conditional license issued under this subsection shall be

20  limited in duration to a specific period of time not to exceed

21  6 months, as determined by the agency, and shall be

22  accompanied by an agency-approved approved plan of correction.

23         (6)  The department may by rule establish renewal

24  procedures, identify forms, and specify documentation

25  necessary to administer this section.

26         Section 9.  Section 400.4174, Florida Statutes, is

27  amended to read:

28         400.4174  Reports of abuse in facilities.--When an

29  employee, volunteer, administrator, or owner of a facility is

30  the subject of has a confirmed report of adult abuse, neglect,

31  or exploitation, as defined in s. 415.102, or child abuse or

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  1  neglect, as defined in s. 415.503, and the protective

  2  investigator knows that the individual is an employee,

  3  volunteer, administrator, or owner of a facility, the agency

  4  shall be notified of the confirmed report.

  5         Section 10.  Section 400.4176, Florida Statutes, is

  6  amended to read:

  7         400.4176  Notice of change of administrator.--If,

  8  during the period for which a license is issued, the owner

  9  changes administrators, the owner must notify the agency of

10  the change within 10 45 days thereof and must provide

11  documentation within 90 days that the new administrator has

12  completed the applicable core educational requirements under

13  s. 400.452.  Background screening shall be completed on any

14  new administrator to establish that the individual is of

15  suitable character as specified in s. 400.411 ss.

16  400.411(2)(c) and 400.456.

17         Section 11.  Subsection (1) of section 400.418, Florida

18  Statutes, is amended to read:

19         400.418  Disposition of fees and administrative

20  fines.--

21         (1)  Income from license fees, inspection fees, late

22  fees, and administrative fines generated pursuant to ss.

23  400.407, 400.408, 400.417, 400.419, and 400.431 shall be

24  deposited in the Health Care Trust Fund administered by the

25  agency.  Such funds shall be directed to and used by the

26  agency for the following purposes:

27         (a)  Up to 50 percent of the trust funds accrued each

28  fiscal year under this part may be used to offset the expenses

29  of receivership, pursuant to s. 400.422, if the court

30  determines that the income and assets of the facility are

31  insufficient to provide for adequate management and operation.

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  1         (b)  An amount of $5,000 of the trust funds accrued

  2  each year under this part shall be allocated to pay for

  3  inspection-related physical and mental health examinations

  4  requested by the agency pursuant to s. 400.426 for residents

  5  who are either recipients of supplemental security income or

  6  have monthly incomes not in excess of the maximum combined

  7  federal and state cash subsidies available to supplemental

  8  security income recipients, as provided for in s. 409.212.

  9  Such funds shall only be used where the resident is ineligible

10  for Medicaid.

11         (c)  Any trust funds accrued each year under this part

12  and not used for the purposes specified in paragraphs (a) and

13  (b) shall be used to offset the costs of the licensure

14  program, including the costs of conducting background

15  investigations, verifying information submitted, defraying the

16  costs of processing the names of applicants, and conducting

17  inspections and monitoring visits pursuant to this part.

18         Section 12.  Section 400.419, Florida Statutes, is

19  amended to read:

20         400.419  Violations; administrative fines penalties.--

21         (1)(a)  If the agency determines that a facility is not

22  in compliance with standards promulgated pursuant to the

23  provisions of this part, including the failure to report

24  evidence of the facility's financial instability or the

25  operation of a facility without a license, the agency, as an

26  alternative to or in conjunction with an administrative action

27  against a facility, shall make a reasonable attempt to discuss

28  each violation and recommended corrective action with the

29  owner or administrator of the facility, prior to written

30  notification thereof.  The agency, instead of fixing a period

31  within which the facility shall enter into compliance with

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  1  standards, may request a plan of corrective action from the

  2  facility which demonstrates a good faith effort to remedy each

  3  violation by a specific date, subject to the approval of the

  4  agency.

  5         (b)  Any facility owner or administrator found in

  6  violation of this part, including any individual operating a

  7  facility without a license, shall be subject to a fine, set

  8  and levied by the agency.

  9         (c)  Each day during which any person violates any such

10  provision after the date fixed for termination of the

11  violation, as ordered by the agency, constitutes an

12  additional, separate, and distinct violation.

13         (d)  Any action taken to correct a violation shall be

14  documented in writing by the administrator of the facility and

15  verified through followup visits by licensing personnel of the

16  agency.  The agency may impose a fine and, in the case of an

17  owner-operated facility, revoke a facility's license when a

18  facility administrator fraudulently misrepresents action taken

19  to correct a violation.

20         (e)  If a facility desires to appeal any agency action

21  under this section, it shall send a written request for a

22  hearing to the agency within 15 days of receipt by certified

23  mail of notice of the action of the agency. If the fine is

24  upheld, the violator shall pay the fine, plus interest at the

25  legal rate as specified in s. 687.01, for each day beyond the

26  date set by the agency for payment of the fine.

27         (2)  In determining if a penalty is to be imposed and

28  in fixing the amount of the penalty to be imposed, if any, for

29  a violation, the agency shall consider the following factors:

30         (a)  The gravity of the violation, including the

31  probability that death or serious physical or emotional harm

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  1  to a resident will result or has resulted, the severity of the

  2  action or potential harm, and the extent to which the

  3  provisions of the applicable statutes or rules were violated.

  4         (b)  Actions taken by the owner or administrator to

  5  correct violations.

  6         (c)  Any previous violations.

  7         (d)  The financial benefit to the facility of

  8  committing or continuing the violation.

  9         (e)  The licensed capacity of the facility.

10         (1)(3)  Each violation of this part and adopted rules

11  shall be classified according to the nature of the violation

12  and the gravity of its probable effect on facility residents.

13  The agency shall indicate the classification of each violation

14  on the written face of the notice of the violation as follows:

15         (a)  Class "I" violations are those conditions or

16  occurrences related to the operation and maintenance of a

17  facility or to the personal care of residents which the agency

18  determines present an imminent danger to the residents or

19  guests of the facility or a substantial probability that death

20  or serious physical or emotional harm would result therefrom.

21  The condition or practice constituting a class I violation

22  shall be abated or eliminated within 24 hours, unless a fixed

23  period, as determined by the agency, is required for

24  correction.  A class I violation is subject to an

25  administrative fine a civil penalty in an amount not less than

26  $1,000 and not exceeding $10,000 $5,000 for each violation.  A

27  fine may be levied notwithstanding the correction of the

28  violation.

29         (b)  Class "II" violations are those conditions or

30  occurrences related to the operation and maintenance of a

31  facility or to the personal care of residents which the agency

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  1  determines directly threaten the physical or emotional health,

  2  safety, or security of the facility residents, other than

  3  class I violations. A class II violation is subject to an

  4  administrative fine a civil penalty in an amount not less than

  5  $500 and not exceeding $5,000 $1,000 for each violation.  A

  6  citation for a class II violation shall specify the time

  7  within which the violation is required to be corrected.  If a

  8  class II violation is corrected within the time specified, no

  9  fine civil penalty may be imposed, unless it is a repeated

10  offense.

11         (c)  Class "III" violations are those conditions or

12  occurrences related to the operation and maintenance of a

13  facility or to the personal care of residents which the agency

14  determines indirectly or potentially threaten the physical or

15  emotional health, safety, or security of facility residents,

16  other than class I or class II violations.  A class III

17  violation is subject to an administrative fine a civil penalty

18  of not less than $100 and not exceeding $1,000 $500 for each

19  violation.  A citation for a class III violation shall specify

20  the time within which the violation is required to be

21  corrected.  If a class III violation is corrected within the

22  time specified, no fine civil penalty may be imposed, unless

23  it is a repeated offense.

24         (d)  Class "IV" violations are those conditions or

25  occurrences related to the operation and maintenance of a

26  building or to required reports, forms, or documents that do

27  not have the potential of negatively affecting residents.

28  These violations are of a type that the agency determines do

29  not threaten the health, safety, or security of residents of

30  the facility.  A facility that does not correct a class IV

31  violation within the time limit specified in the

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  1  agency-approved corrective action plan is subject to an

  2  administrative fine a civil penalty of not less than $50 nor

  3  more than $200 for each violation.  Any class IV violation

  4  that is corrected during the time an agency survey is being

  5  conducted will be identified as an agency finding and not as a

  6  violation.

  7         (2)(4)  The agency may set and levy a fine not to

  8  exceed $1,000 $500 for each violation which cannot be

  9  classified according to subsection (1) (3).  In no event may

10  Such fines fine in the aggregate may not exceed $10,000 per

11  survey $5,000.

12         (3)  In determining if a penalty is to be imposed and

13  in fixing the amount of the fine, the agency shall consider

14  the following factors:

15         (a)  The gravity of the violation, including the

16  probability that death or serious physical or emotional harm

17  to a resident will result or has resulted, the severity of the

18  action or potential harm, and the extent to which the

19  provisions of the applicable laws or rules were violated.

20         (b)  Actions taken by the owner or administrator to

21  correct violations.

22         (c)  Any previous violations.

23         (d)  The financial benefit to the facility of

24  committing or continuing the violation.

25         (e)  The licensed capacity of the facility.

26         (4)  Each day of continuing violation after the date

27  fixed for termination of the violation, as ordered by the

28  agency, constitutes an additional, separate, and distinct

29  violation.

30         (5)  Any action taken to correct a violation shall be

31  documented in writing by the owner or administrator of the

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  1  facility and verified through followup visits by agency

  2  personnel. The agency may impose a fine and, in the case of an

  3  owner-operated facility, revoke or deny a facility's license

  4  when a facility administrator fraudulently misrepresents

  5  action taken to correct a violation.

  6         (6)  For fines that are upheld following administrative

  7  or judicial review, the violator shall pay the fine, plus

  8  interest at the rate as specified in s. 55.03, for each day

  9  beyond the date set by the agency for payment of the fine.

10         (7)  Except as provided in subsection (8), any facility

11  that continues to operate without having applied for a license

12  10 days after agency notification is subject to a $1,000 fine.

13  Each day beyond 20 days after agency notification constitutes

14  a separate violation and the facility is subject to a fine of

15  $500 per day.

16         (8)  Unlicensed facilities whose owner or administrator

17  concurrently operates a licensed facility, has previously

18  operated a licensed facility, or has been employed in a

19  licensed facility shall immediately be subject to an

20  administrative fine of $5,000 upon agency notification. Each

21  day that a facility continues to operate without having

22  applied for a license within 10 working days after agency

23  notification constitutes a separate violation, and such

24  facility shall be subject to a fine of $500 per day

25  retroactive to the date of agency notification.

26         (9)  Any facility whose owner fails to apply for a

27  change-of-ownership license in accordance with s. 400.412 and

28  operates the facility under the new ownership is subject to a

29  fine not to exceed $5,000.

30         (10)  In addition to any administrative fines imposed,

31  the agency may assess a survey fee, equal to the lesser of one

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  1  half of the facility's biennial license and bed fee or $500,

  2  to cover the cost of conducting initial complaint

  3  investigations that result in the finding of a violation that

  4  was the subject of the complaint or monitoring visits

  5  conducted under s. 400.428(3)(c) to verify the correction of

  6  the violations.

  7         (11)  The agency, as an alternative to or in

  8  conjunction with an administrative action against a facility

  9  for violations of this part and adopted rules, shall make a

10  reasonable attempt to discuss each violation and recommended

11  corrective action with the owner or administrator of the

12  facility, prior to written notification. The agency, instead

13  of fixing a period within which the facility shall enter into

14  compliance with standards, may request a plan of corrective

15  action from the facility which demonstrates a good-faith

16  effort to remedy each violation by a specific date, subject to

17  the approval of the agency.

18         (12)(5)  Administrative fines Civil penalties paid by

19  any facility under this section the provisions of subsection

20  (3) shall be deposited into the Health Care Trust Fund and

21  expended as provided in s. 400.418.

22         (13)(6)  The agency shall develop and disseminate an

23  annual list of all facilities sanctioned or fined $5,000 or

24  more in excess of $500 for violations of state standards, the

25  number and class of violations involved, the penalties

26  imposed, and the current status of cases. The list shall be

27  disseminated, at no charge, to the Department of Elderly

28  Affairs, the Department of Health and Rehabilitative Services,

29  the Department of Children and Family Services, the area

30  agencies on aging, the Statewide Human Rights Advocacy

31  Committee, and the state and district nursing home and

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  1  long-term care facility ombudsman councils. The Department of

  2  Children and Family Services shall disseminate the list to

  3  service providers under contract to the department who are

  4  responsible for referring persons to a facility for residency.

  5  The agency may charge a fee commensurate with the cost of

  6  printing and postage to other interested parties requesting a

  7  copy of this list.

  8         Section 13.  Subsection (2) of section 400.4195,

  9  Florida Statutes, is amended to read:

10         400.4195  Rebates prohibited; penalties.--

11         (2)  A violation of this section shall be considered

12  patient brokering and is punishable as provided in s. 817.505

13  The department, in consultation with the agency, shall adopt

14  rules which assess administrative penalties for acts

15  prohibited by subsection (1).

16         Section 14.  Paragraph (a) of subsection (1) of section

17  400.422, Florida Statutes, is amended to read:

18         400.422  Receivership proceedings.--

19         (1)  As an alternative to or in conjunction with an

20  injunctive proceeding, the agency may petition a court of

21  competent jurisdiction for the appointment of a receiver, if

22  suitable alternate placements are not available, when any of

23  the following conditions exist:

24         (a)  The facility is operating without a license and

25  refuses to make application for a license as required by ss.

26  s. 400.407 and 400.408.

27         Section 15.  Section 400.4256, Florida Statutes, is

28  created to read:

29         400.4256  Assistance with self-administration of

30  medication.--

31         (1)  For the purposes of this section, the term:

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  1         (a)  "Informed consent" means advising the resident, or

  2  the resident's surrogate, guardian, or attorney in fact, that

  3  an assisted living facility is not required to have a licensed

  4  nurse on staff, that the resident may be receiving assistance

  5  with self-administration of medication from an unlicensed

  6  person, and that such assistance, if provided by an unlicensed

  7  person, will or will not be overseen by a licensed nurse.

  8         (b)  "Unlicensed person" means an individual not

  9  currently licensed to practice nursing or medicine who is

10  employed by or under contract to an assisted living facility

11  and who has received training with respect to assisting with

12  the self-administration of medication in an assisted living

13  facility as provided under s. 400.452 prior to providing such

14  assistance as described in this section.

15         (2)  Residents who are capable of self-administering

16  their own medications without assistance shall be encouraged

17  and allowed to do so. However, an unlicensed person may,

18  consistent with a dispensed prescription's label or the

19  package directions of an over-the-counter medication, assist a

20  resident whose condition is medically stable with the

21  self-administration of routine, regularly scheduled

22  medications that are intended to be self-administered.

23  Assistance with self-medication by an unlicensed person may

24  occur only upon a documented request by, and the written

25  informed consent of, a resident or the resident's surrogate,

26  guardian, or attorney in fact. For the purposes of this

27  section, self-administered medications include both legend and

28  over-the-counter oral dosage forms, topical dosage forms and

29  topical opthalmic, otic, and nasal dosage forms including

30  solutions, suspensions, sprays, and inhalers.

31

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  1         (3)  Assistance with self-administration of medication

  2  includes:

  3         (a)  Taking the medication, in its previously

  4  dispensed, properly labeled container, from where it is

  5  stored, and bringing it to the resident.

  6         (b)  In the presence of the resident, reading the

  7  label, opening the container, removing a prescribed amount of

  8  medication from the container, and closing the container.

  9         (c)  Placing an oral dosage in the resident's hand or

10  placing the dosage in another container and helping the

11  resident by lifting the container to his or her mouth.

12         (d)  Applying topical medications.

13         (e)  Returning the medication container to proper

14  storage.

15         (f)  Keeping a record of when a resident receives

16  assistance with self-administration under this section.

17         (4)  Assistance with self-administration does not

18  include:

19         (a)  Mixing, compounding, converting, or calculating

20  medication doses, except for measuring a prescribed amount of

21  liquid medication or breaking a scored tabled or crushing a

22  tablet as prescribed.

23         (b)  The preparation of syringes for injection or the

24  administration of medications by any injectable route.

25         (c)  Administration of medications through intermittent

26  positive pressure breathing machines or a nebulizer.

27         (d)  Administration of medications by way of a tube

28  inserted in a cavity of the body.

29         (e)  Administration of parenteral preparations.

30         (f)  Irrigations or debriding agents used in the

31  treatment of a skin condition.

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  1         (g)  Rectal, urethral, or vaginal preparations.

  2         (h)  Medications ordered by the physician or health

  3  care professional with prescriptive authority to be given "as

  4  needed," unless the order is written with specific parameters

  5  that preclude independent judgment on the part of the

  6  unlicensed person, and at the request of a competent resident.

  7         (i)  Medications for which the time of administration,

  8  the amount, the strength of dosage, the method of

  9  administration, or the reason for administration requires

10  judgment or discretion on the part of the unlicensed person.

11         (5)  Assistance with the self-administration of

12  medication by an unlicensed person as described in this

13  section shall not be considered administration as defined in

14  s. 465.003.

15         (6)  The department may by rule establish facility

16  procedures and interpret terms as necessary to implement this

17  section.

18         Section 16.  Subsection (3) of section 400.428, Florida

19  Statutes, is amended to read:

20         400.428  Resident bill of rights.--

21         (3)(a)  The agency shall conduct a survey an inspection

22  to determine general compliance with facility standards and

23  compliance with residents' rights as a prerequisite to initial

24  or renewal licensure or licensure renewal.

25         (b)  In order to determine whether the facility is

26  adequately protecting residents' rights, the biennial survey

27  inspection of the facility shall include private informal

28  conversations with a sample of residents and consultation with

29  the ombudsman council in the planning and service area, as

30  defined in part II, in which the facility is located to

31  discuss residents' experiences within the facility with

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  1  respect to rights specified in this section and general

  2  compliance with standards.

  3         (c)  During any calendar year in which no survey

  4  inspection is conducted, the agency shall conduct at least one

  5  monitoring visit of each facility cited in the previous year

  6  for a class I or class II violation, or more than three

  7  uncorrected class III violations, that led to a conditional

  8  license or a moratorium on admissions.

  9         (d)  The agency may conduct periodic followup

10  inspections as necessary to monitor the compliance of

11  facilities with a history of any class I, class II, or class

12  III violations that threaten the health, safety, or security

13  of residents.

14         (e)(d)  The agency may conduct complaint investigations

15  as warranted to investigate any allegations of noncompliance

16  with requirements required under this part or rules adopted

17  promulgated under this part.

18         Section 17.  Section 400.442, Florida Statutes, is

19  amended to read:

20         400.442  Pharmacy and dietary services.--

21         (1)  Notwithstanding s. 400.419, Any assisted living

22  facility in which the agency has documented a class I or class

23  II deficiency or uncorrected class III deficiencies regarding

24  medicinal drugs or over-the-counter preparations, including

25  their storage, use, delivery, or administration, or dietary

26  services, or both, during a biennial survey or a monitoring

27  visit or an investigation in response to a complaint, shall,

28  in addition to or as an alternative to any penalties imposed

29  under s. 400.419, be required to employ the consultant

30  services of a licensed pharmacist, a licensed registered

31  nurse, or a registered or licensed dietitian, or both, as

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  1  applicable.  The consultant shall provide onsite consultation

  2  and shall continue with, at a minimum, provide onsite

  3  quarterly consultation until the inspection team from the

  4  agency determines that such consultation services are no

  5  longer required.

  6         (2)  A corrective-action plan for deficiencies related

  7  to assistance with the self-administration of medication or

  8  the administration of medication must be developed and

  9  implemented by the facility within 48 hours after notification

10  of such deficiency, or sooner if the deficiency is determined

11  by the agency to be life-threatening.

12         (3)(2)  The agency shall employ at least two

13  pharmacists licensed pursuant to chapter 465 among its

14  personnel who biennially inspect assisted living facilities

15  licensed under this part, to participate in biennial

16  inspections or consult with the agency regarding deficiencies

17  relating to medicinal drugs or over-the-counter preparations,

18  including, but not limited to, their storage, use, delivery,

19  or administration.  A corrective action plan for deficiencies

20  related to the administration or supervision of medication

21  must be developed and implemented within 48 hours after

22  notification of the deficiency, or sooner if the deficiency is

23  determined by the agency to be life threatening.

24         Section 18.  Section 400.452, Florida Statutes, is

25  amended to read:

26         400.452  Staff training and educational programs; core

27  educational requirement.--

28         (1)  The department shall provide, or cause to be

29  provided, training and educational programs for the

30  administrators and such other assisted living facility staff

31  as are defined by the department to better enable them to

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  1  appropriately respond to the needs of residents, to maintain

  2  resident care and facility standards, and to meet licensure

  3  requirements.

  4         (2)  The department shall also establish a core

  5  educational requirement to be used in these programs.

  6  Successful completion of the core educational requirement must

  7  include successful completion of a competency test. Programs

  8  must be provided by the department or by a provider approved

  9  by the department at least quarterly.  The core educational

10  requirement must cover at least the following topics:

11         (a)  State law and rules relating to on assisted living

12  facilities, including lifesafety requirements and procedures.

13         (b)  Resident rights and identifying and reporting

14  abuse, neglect, and exploitation.

15         (c)  Special needs of elderly persons, persons with

16  mental illness, and persons with developmental disabilities

17  and how to meet those needs.

18         (d)  Nutrition and food service, including acceptable

19  sanitation practices for preparing, storing, and serving food.

20         (e)  Medication management, recordkeeping, and proper

21  techniques for assisting residents with self-administered

22  medication, including recordkeeping.

23         (f)  Firesafety requirements, including fire evacuation

24  drill procedures and other emergency procedures drills.

25         (g)  Care of persons with Alzheimer's disease and other

26  related disorders.

27         (3)  Such a program must be available at least

28  quarterly in each planning and service area district of the

29  department of Health and Rehabilitative Services.  The

30  competency test must be developed by the department in

31  conjunction with the agency and providers and must be

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  1  available for use by January 1, 1997. Beginning July 1, 1997,

  2  A new facility administrator must complete the core

  3  educational requirement including the competency test within 3

  4  months after being employed as an administrator.  Failure to

  5  complete a core educational requirement specified in this

  6  subsection is a violation of this part and subjects the

  7  violator to an administrative fine a penalty as prescribed in

  8  s. 400.419. Administrators licensed in accordance with chapter

  9  468, part II, are exempt from this requirement. Other licensed

10  professionals may be exempted, as determined by the department

11  by rule.

12         (4)  Administrators are required to participate in

13  continuing education for a minimum of 12 contact hours every 2

14  years as specified by rule of the department.

15         (5)  Staff involved with the management of medications

16  and assisting with the self-administration of medications

17  under s. 400.4256 must complete a minimum of 4 hours of

18  training pursuant to a curriculum developed by the department

19  and provided by a registered nurse, licensed pharmacist, or

20  department staff. Administrators and staff of facilities more

21  than 10 percent of whose residents are mental health residents

22  shall participate in training in the care and supervision of

23  such residents as specified by rule of the department.

24         (6)  Other facility staff shall participate in training

25  relevant to their job duties as specified by rule of the

26  department.

27         (7)  Any facility more than 90 percent of whose

28  residents receive monthly optional supplementation payments is

29  not required to pay for the training and education programs

30  provided under this section. A facility that has one or more

31  such residents shall pay a reduced fee that is proportional to

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  1  the percentage of such residents in the facility. A facility

  2  that does not have any residents who receive monthly optional

  3  supplementation payments must pay a reasonable fee, as

  4  established by the department, for such training and education

  5  programs. A facility that has one or more such residents shall

  6  pay a reduced fee that is proportional to the percentage of

  7  such residents in the facility. Any facility more than 90

  8  percent of whose residents receive monthly optional state

  9  supplementation payments is not required to pay for the

10  training and continuing education programs required under this

11  section.

12         (8)  If the department or the agency determines that

13  there are problems in a facility that could be reduced through

14  specific staff training or education beyond that already

15  required under this section, the department or the agency may

16  require, and provide, or cause to be provided, the training or

17  education of any personal care staff in the facility.

18         (9)  The department shall adopt rules to establish

19  training programs, standards and curriculum for training,

20  staff training requirements, procedures for approving training

21  programs, and training fees.

22         Section 19.  Paragraph (c) is added to subsection (2)

23  of section 400.474, Florida Statutes, to read:

24         400.474  Denial, suspension, revocation of license;

25  injunction; grounds.--

26         (2)  Any of the following actions by a home health

27  agency or its employee is grounds for disciplinary action by

28  the Agency for Health Care Administration:

29         (c)  Knowingly providing home health services in an

30  unlicensed assisted living facility or unlicensed adult

31  family-care home, unless the home health agency or employee

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  1  reports the unlicensed facility or home to the agency within

  2  72 hours after providing the services.

  3         Section 20.  Subsection (2) of section 400.618, Florida

  4  Statutes, is amended to read:

  5         400.618  Definitions.--As used in this part ss.

  6  400.616-400.629, the term:

  7         (2)  "Adult family-care home" means a full-time,

  8  family-type living arrangement, in a private home, under which

  9  a person who owns or rents the home provides or persons

10  provide, for profit or not for profit, room, board, and one or

11  more personal services, on a 24-hour basis as appropriate for

12  the level of functional impairment, for no more than five aged

13  persons or disabled adults who are not relatives. The

14  following family-type living arrangements establishments are

15  not required to be licensed as an adult family-care home

16  homes:

17         (a)  An arrangement whereby the person who owns or

18  rents the home provides room, board, and establishment that

19  provides personal services for not more than two three or

20  fewer adults who do not receive optional state supplementation

21  under s. 409.212, but that does not hold itself out to the

22  public to be an establishment that regularly provides such

23  services. The person who provides the housing, meals, and

24  personal services must own or rent the home and reside

25  therein.

26         (b)  An arrangement whereby the person who owns or

27  rents the home provides room, board, and establishment in

28  which a person or persons provide personal services only to

29  their relatives.

30         (c)  An establishment that is licensed as an assisted

31  living facility under part III.

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  1         Section 21.  Paragraph (h) of subsection (3) of section

  2  408.036, Florida Statutes, is amended to read:

  3         408.036  Projects subject to review.--

  4         (3)  EXEMPTIONS.--Upon request, supported by such

  5  documentation as the agency requires, the agency shall grant

  6  an exemption from the provisions of subsection (1):

  7         (h)  For the establishment of a Medicare-certified home

  8  health agency by a facility certified under chapter 651; a

  9  retirement community, as defined in s. 400.404(2)(g) s.

10  400.404(2)(e); or a residential facility that serves only

11  retired military personnel, their dependents, and the

12  surviving dependents of deceased military personnel.

13  Medicare-reimbursed home health services provided through such

14  agency shall be offered exclusively to residents of the

15  facility or retirement community or to residents of facilities

16  or retirement communities owned, operated, or managed by the

17  same corporate entity. Each visit made to deliver

18  Medicare-reimbursable home health services to a home health

19  patient who, at the time of service, is not a resident of the

20  facility or retirement community shall be a deceptive and

21  unfair trade practice and constitutes a violation of ss.

22  501.201-501.213.

23

24  A request for exemption under this subsection may be made at

25  any time and is not subject to the batching requirements of

26  this section.

27         Section 22.  Subsection (3) is added to section

28  394.4574, Florida Statutes, to read:

29         394.4574  Department responsibilities for a mental

30  health resident who resides in an assisted living facility

31  that holds a limited mental health license.--

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    300-2014B-98




  1         (3)  The Secretary of Children and Family Services

  2  shall annually require each district administrator to develop,

  3  with community input, detailed plans that demonstrate how the

  4  district will ensure the provision of state-funded mental

  5  health and substance-abuse-treatment services to residents of

  6  assisted living facilities that hold a limited mental health

  7  license. These plans must be consistent with the alcohol, drug

  8  abuse, and mental health district plan developed pursuant to

  9  s. 394.75 and must address case-management services; access to

10  consumer-operated drop-in centers; access to services during

11  evenings, weekends, and holidays; supervision of the clinical

12  needs of the residents; and access to emergency psychiatric

13  care.

14         Section 23.  This act shall take effect October 1,

15  1998.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 1960

  3

  4
    -    The term "applicant" is defined; existing definitions of
  5       "personal services" and "supervision of activities of
         daily living" are amended to include the
  6       self-administration of medication; and the definitions of
         "supervision of self-administration of medication" and
  7       "assistance with activities of daily living are deleted."

  8  -    Regarding an unlicensed assisted living facility,
         application within 10 days is an affirmative defense to
  9       the first offense rather than allowing 10 days in which
         to apply for the license.
10
    -    No penalty is provided specifically for a health care
11       practitioner's knowledge of an unlicensed assisted living
         facility, though any person must report knowledge of an
12       unlicensed assisted living facility to the Agency for
         Health Care Administration (agency).
13
    -    Agency action for denial, revocation, or suspension of a
14       license is permitted with one or more class I violations
         or three or more class II violations within the prior 2
15       years.

16  -    All references to background screening are removed.

17  -    New language is added to allow for licensure denial for
         previous relevant violations in the prior 5 years.
18
    -    The agency is directed to deny or revoke a license if an
19       assisted living facility has two or more class I
         violations which are similar or identical to violations
20       previously identified in the prior 2 years.

21  -    A notice of moratorium is to be posted and visible to the
         public until the moratorium is lifted.
22
    -    Provisions relating to class IV violation fines are
23       returned to current law.

24  -    The provision allowing the agency to double
         administrative fines for the same violation identified on
25       the previous inspection is deleted.

26  -    A home health license may be denied, suspended, or
         revoked if a party knowingly provides home health
27       services in an unlicensed assisted living facility or
         adult family care home and does not report the unlicensed
28       facility or home to the agency within 72 hours of
         providing the services.
29
    -    A violation of s. 400.4195, F.S., rebates prohibited, is
30       considered patient-brokering and is punishable
         accordingly.
31
    -    A new section is created to allow for the assistance with
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  1       the self-administration of certain medications.

  2  -    Section 400.442, F.S., is amended to require assisted
         living facilities with certain deficiencies related to
  3       dispensing of medication to hire a professional
         consultant such as a licensed pharmacist, licensed
  4       registered nurse, or a registered or licensed dietitian.

  5  -    Staff training requirements are conformed to the
         assistance with the self-administration of certain
  6       medications provisions to require certain training and
         records management in this area.
  7
    -    A new subsection is added to s. 394.4574, F.S., to
  8       require district plans to ensure the provision of
         state-funded mental health and substance abuse treatment
  9       services to residents of assisted living facilities
         holding a limited mental health license.
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