House Bill 2031

CODING: Words stricken are deletions; words underlined are additions.







    Florida House of Representatives - 1999                HB 2031

        By Representative Sobel






  1                      A bill to be entitled

  2         An act relating to health care; creating part

  3         XV of chapter 468, F.S.; providing definitions;

  4         requiring the Department of Health to maintain,

  5         or contract with or approve another entity to

  6         maintain, a state registry of certified nursing

  7         assistants; authorizing the department to

  8         contract with or approve another entity to

  9         provide examination services for certification

10         of nursing assistants; providing requirements

11         for obtaining certification as a certified

12         nursing assistant; providing for initial

13         certification; requiring maintenance of current

14         address with the department; specifying grounds

15         for disciplinary action; providing penalties;

16         authorizing the department to exempt an

17         applicant or certificateholder from

18         disqualification from certification or

19         employment; providing for access to records and

20         meetings held for disciplinary actions;

21         exempting an employer from liability for

22         terminating a certified nursing assistant under

23         certain circumstances; providing penalties for

24         failure to disclose a material fact under

25         certain circumstances; providing for access to

26         background screening information; preserving

27         confidentiality; providing rulemaking

28         authority; requiring persons who employ

29         certified nursing assistants to report certain

30         information to the department; requiring the

31         department to update the certified nursing

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 2031

    710-102-99






  1         assistant registry; providing for assignment to

  2         inactive certification under certain

  3         circumstances; providing for future repeal of

  4         such reporting, updating, and assignment

  5         provisions; amending ss. 20.43, 400.211,

  6         400.4255, 400.462, 400.506, and 455.667, F.S.,

  7         relating to the department, persons employed as

  8         nursing assistants, the use of licensed

  9         personnel in assisted living facilities, the

10         regulation of home health agencies, nurse

11         registries, and the ownership and control of

12         patient records; deleting existing provisions

13         relating to certification of nursing assistants

14         and revising cross references, to conform to

15         changes made by the act; providing for

16         immunization of patients and employees of

17         nursing homes against influenza and pneumonia;

18         requiring informed written consent; providing

19         exemptions; providing for reimbursement for the

20         cost of such immunizations; authorizing

21         additional positions for the department;

22         providing an effective date.

23

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

25

26         Section 1.  Part XV of chapter 468, Florida Statutes,

27  consisting of sections 468.821, 468.822, 468.823, 468.824,

28  468.825, 468.826, 468.827, 468.828, and 468.829, Florida

29  Statutes, is created to read:

30         468.821  Definitions.--As used in this part, the term:

31

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 2031

    710-102-99






  1         (1)  "Approved training program" means a course of

  2  training conducted by a public sector or private sector

  3  educational center licensed by the Department of Education to

  4  implement the basic curriculum for nursing assistants which is

  5  approved by the Department of Education.

  6         (2)  "Certified nursing assistant" means a person who

  7  meets the qualifications specified in this part and who is

  8  certified by the department as a certified nursing assistant.

  9         (3)  "Department" means the Department of Health.

10         (4)  "Registry" means the listing of certified nursing

11  assistants maintained by the department.

12         468.822  Duties and powers of the department.--

13         (1)  The department shall maintain, or contract with or

14  approve another entity to maintain, a state registry of

15  certified nursing assistants. The registry shall consist of

16  the name of each certified nursing assistant in this state,

17  other identifying information defined by department rule,

18  certification status, the effective date of certification,

19  other information required by state or federal law,

20  information regarding any crime or any abuse, neglect, or

21  exploitation as provided under chapter 435, and any

22  disciplinary action taken against the certified nursing

23  assistant. The registry shall be accessible to the public, the

24  certificateholder, employers, and other state agencies.

25         (2)  The department shall adopt by rule testing

26  procedures for use in certifying nursing assistants and shall

27  adopt rules regulating the practice of certified nursing

28  assistants to enforce this part. The department may contract

29  with or approve another entity or organization to provide the

30  examination services, including the development and

31  administration of examinations.

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 2031

    710-102-99






  1         (3)  A provider shall pay all reasonable costs and

  2  expenses incurred by the department in evaluating the

  3  provider's application and performance during the delivery of

  4  services, including examination services and procedures for

  5  maintaining the certified nursing assistant registry, as

  6  applicable.

  7         468.823  Certified nursing assistants; certification

  8  requirement.--

  9         (1)  The department shall issue a certificate to

10  practice as a certified nursing assistant to any person who

11  demonstrates a minimum competency to read and write and meets

12  one of the following requirements:

13         (a)  Has successfully completed an approved training

14  program and achieved a minimum score, established by rule of

15  the department, on the nursing assistant competency

16  examination, which consists of a written portion and

17  skills-demonstration portion, approved by the department and

18  administered at a site and by personnel approved by the

19  department.

20         (b)  Has achieved a minimum score, established by rule

21  of the department, on the nursing assistant competency

22  examination, which consists of a written portion and

23  skills-demonstration portion, approved by the department and

24  administered at a site and by personnel approved by the

25  department and:

26         1.  Has a high school diploma, or its equivalent; or

27         2.  Is at least 18 years of age.

28         (c)  Is currently certified in another state, is listed

29  on that state's certified nursing assistant registry, has not

30  been found to have committed abuse, neglect, or exploitation

31  in that state, and has successfully completed a national

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 2031

    710-102-99






  1  nursing assistant evaluation in order to receive certification

  2  in that state.

  3         (2)  If an applicant fails to pass the nursing

  4  assistant competency examination in three attempts, the

  5  applicant is not eligible for reexamination unless the

  6  applicant completes an approved training program.

  7         (3)  An oral examination shall be administered as a

  8  substitute for the written portion of the examination upon

  9  request. The oral examination shall be administered at a site

10  and by personnel approved by the department.

11         (4)  The department shall adopt rules to provide for

12  the initial certification of certified nursing assistants.

13         (5)  A certified nursing assistant shall maintain a

14  current address with the department in accordance with s.

15  455.717.

16         468.824  Denial, suspension, or revocation of

17  certification; disciplinary actions; letter of exemption.--

18         (1)  The following acts constitute grounds for which

19  the department may impose disciplinary sanctions as specified

20  in subsection (2):

21         (a)  Obtaining or attempting to obtain an exemption

22  from disqualification from certification or employment, or

23  possessing or attempting to possess a letter of exemption from

24  disqualification from certification or employment, by bribery,

25  misrepresentation, deceit, or through an error of the

26  department.

27         (b)  Intentionally violating any provision of this

28  part, chapter 455, or the rules adopted by the department.

29         (2)  When the department finds any person guilty of any

30  of the grounds set forth in subsection (1), it may enter an

31  order imposing one or more of the following penalties:

                                  5

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 2031

    710-102-99






  1         (a)  Denial, suspension, or revocation of

  2  certification.

  3         (b)  Imposition of an administrative fine not to exceed

  4  $150 for each count or separate offense.

  5         (c)  Imposition of probation or restriction of

  6  certification, including conditions such as retraining,

  7  compliance with an approved treatment program for impaired

  8  practitioners, or other corrective action.

  9         (3)  The department may, upon the request of a

10  certificateholder, exempt the certificateholder from

11  disqualification of certification or disqualification of

12  employment in accordance with chapter 435 and issue a letter

13  of exemption. After January 1, 2000, the department must

14  notify an applicant seeking an exemption from disqualification

15  from certification or employment of its decision to approve or

16  deny the request within 30 days after the date the department

17  receives all required documentation.

18         468.825  Availability of disciplinary records and

19  proceedings.--Pursuant to s. 455.621, any complaint or record

20  maintained by the department pursuant to the discipline of a

21  certified nursing assistant and any proceeding held by the

22  department to discipline a certified nursing assistant shall

23  remain open and available to the public.

24         468.826  Exemption from liability.--If an employer

25  terminates or denies employment to a certified nursing

26  assistant whose certification is inactive as shown on the

27  certified nursing assistant registry or whose name appears on

28  the central abuse registry and tracking system of the

29  Department of Children and Family Services or on a criminal

30  screening report of the Department of Law Enforcement, the

31  employer is not civilly liable for such termination and a

                                  6

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 2031

    710-102-99






  1  cause of action may not be brought against the employer for

  2  damages, regardless of whether the employee has filed for an

  3  exemption from the department under s. 468.824(3). There may

  4  not be any monetary liability on the part of, and a cause of

  5  action for damages may not arise against, any licensed

  6  facility, its governing board or members thereof, medical

  7  staff, disciplinary board, agents, investigators, witnesses,

  8  employees, or any other person for any action taken in good

  9  faith without intentional fraud in carrying out this section.

10         468.827  Failure to disclose a material fact;

11  penalties.--It is a misdemeanor of the first degree,

12  punishable as provided in s. 775.082 or s. 775.083, for any

13  person knowingly or intentionally to fail to disclose, by

14  false statement, misrepresentation, impersonation, or other

15  fraudulent means, in any application for voluntary or paid

16  employment or certification regulated under this part, a

17  material fact used in making a determination as to such

18  person's qualifications to be an employee or

19  certificateholder.

20         468.828  Background screening information; rulemaking

21  authority.--

22         (1)  The Agency for Health Care Administration shall

23  allow the department to electronically access its background

24  screening database and records, and the Department of Children

25  and Family Services shall allow the department to

26  electronically access its central abuse registry and tracking

27  system under chapter 415.

28         (2)  An employer, or an agent thereof, may not use

29  criminal records, juvenile records, or information obtained

30  from the central abuse hotline under chapter 415 for any

31  purpose other than determining if the person meets the

                                  7

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 2031

    710-102-99






  1  requirements of this part. Such records and information

  2  obtained by the department shall remain confidential and

  3  exempt from s. 119.07(1) as provided in s. 435.09.

  4         (3)  If the requirements of the Omnibus Budget

  5  Reconciliation Act of 1987, as amended, for the certification

  6  of nursing assistants are in conflict with this part, the

  7  federal requirements shall prevail for those facilities

  8  certified to provide care under Title XVIII (Medicare) or

  9  Title XIX (Medicaid) of the Social Security Act.

10         (4)  The department has authority to adopt rules

11  pursuant to ss. 120.536(1) and 120.54 to implement the

12  provisions of this part.

13         468.829  Employer reports; update of registry;

14  assignment to inactive certification.--

15         (1)  By October 1, 1999, and by October 1 of every year

16  thereafter, each employer of certified nursing assistants

17  shall submit to the department a list of the names and social

18  security numbers of each person employed by the employer as a

19  certified nursing assistant in a nursing-related occupation

20  for a minimum of 8 hours for monetary compensation during the

21  preceding 24 months. Employers may submit such information

22  electronically through the department's Internet site.

23         (2)  The department shall update the certified nursing

24  assistant registry upon receipt of the lists of certified

25  nursing assistants and shall complete the first of such

26  updates by December 31, 1999.

27         (3)  Each certified nursing assistant whose name is not

28  reported to the department under subsection (1) on October 1,

29  1999, shall be assigned an inactive certification on January

30  1, 2000. A certified nursing assistant may reactivate an

31  inactive certification by submitting documentation to the

                                  8

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 2031

    710-102-99






  1  department that he or she was employed for a minimum of 8

  2  hours for monetary compensation as a certified nursing

  3  assistant in a nursing-related occupation during the preceding

  4  24 months.

  5         (4)  This section is repealed October 2, 2001.

  6         Section 2.  Paragraph (g) of subsection (3) of section

  7  20.43, Florida Statutes, 1998 Supplement, is amended to read:

  8         20.43  Department of Health.--There is created a

  9  Department of Health.

10         (3)  The following divisions of the Department of

11  Health are established:

12         (g)  Division of Medical Quality Assurance, which is

13  responsible for the following boards and professions

14  established within the division:

15         1.  Nursing assistants, as provided under part XV of

16  chapter 468 s. 400.211.

17         2.  Health care services pools, as provided under s.

18  402.48.

19         3.  The Board of Acupuncture, created under chapter

20  457.

21         4.  The Board of Medicine, created under chapter 458.

22         5.  The Board of Osteopathic Medicine, created under

23  chapter 459.

24         6.  The Board of Chiropractic Medicine, created under

25  chapter 460.

26         7.  The Board of Podiatric Medicine, created under

27  chapter 461.

28         8.  Naturopathy, as provided under chapter 462.

29         9.  The Board of Optometry, created under chapter 463.

30         10.  The Board of Nursing, created under chapter 464.

31         11.  The Board of Pharmacy, created under chapter 465.

                                  9

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 2031

    710-102-99






  1         12.  The Board of Dentistry, created under chapter 466.

  2         13.  Midwifery, as provided under chapter 467.

  3         14.  The Board of Speech-Language Pathology and

  4  Audiology, created under part I of chapter 468.

  5         15.  The Board of Nursing Home Administrators, created

  6  under part II of chapter 468.

  7         16.  The Board of Occupational Therapy, created under

  8  part III of chapter 468.

  9         17.  Respiratory therapy, as provided under part V of

10  chapter 468.

11         18.  Dietetics and nutrition practice, as provided

12  under part X of chapter 468.

13         19.  Athletic trainers, as provided under part XIII of

14  chapter 468.

15         20.  The Board of Orthotists and Prosthetists, created

16  under part XIV of chapter 468.

17         21.  Electrolysis, as provided under chapter 478.

18         22.  The Board of Massage Therapy, created under

19  chapter 480.

20         23.  The Board of Clinical Laboratory Personnel,

21  created under part III of chapter 483.

22         24.  Medical physicists, as provided under part IV of

23  chapter 483.

24         25.  The Board of Opticianry, created under part I of

25  chapter 484.

26         26.  The Board of Hearing Aid Specialists, created

27  under part II of chapter 484.

28         27.  The Board of Physical Therapy Practice, created

29  under chapter 486.

30         28.  The Board of Psychology, created under chapter

31  490.

                                  10

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 2031

    710-102-99






  1         29.  School psychologists, as provided under chapter

  2  490.

  3         30.  The Board of Clinical Social Work, Marriage and

  4  Family Therapy, and Mental Health Counseling, created under

  5  chapter 491.

  6

  7  The department may contract with the Agency for Health Care

  8  Administration who shall provide consumer complaint,

  9  investigative, and prosecutorial services required by the

10  Division of Medical Quality Assurance, councils, or boards, as

11  appropriate.

12         Section 3.  Section 400.211, Florida Statutes, 1998

13  Supplement, is amended to read:

14         400.211  Persons employed as nursing assistants;

15  certification requirement.--

16         (1)  A person must be certified under part XV of

17  chapter 468 pursuant to this section, except a registered

18  nurse or practical nurse licensed in accordance with the

19  provisions of chapter 464 or an applicant for such licensure

20  who is permitted to practice nursing in accordance with rules

21  adopted promulgated by the Board of Nursing pursuant to

22  chapter 464, to serve as a nursing assistant in any nursing

23  home. The Department of Health shall issue a certificate to

24  any person who:

25         (a)  Has successfully completed a nursing assistant

26  program in a state-approved school and has achieved a minimum

27  score of 75 percent on the written portion of the Florida

28  Nursing Assistant Certification Test approved by the

29  Department of Health and administered by state-approved test

30  site personnel;

31

                                  11

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 2031

    710-102-99






  1         (b)  Has achieved a minimum score of 75 percent on the

  2  written and performance portions of the Florida Nursing

  3  Assistant Certification Test approved by the Department of

  4  Health and administered by state-approved test site personnel;

  5  or

  6         (c)  Is currently certified in another state, is on

  7  that state's registry, has no findings of abuse, and has

  8  achieved a minimum score of 75 percent on the written portion

  9  of the Florida Nursing Assistant Certification Test approved

10  by the Department of Health and administered by state-approved

11  test site personnel.

12

13  An oral examination shall be administered upon request.

14         (2)  The agency may deny, suspend, or revoke the

15  certification of any person to serve as a nursing assistant,

16  based upon written notification from a court of competent

17  jurisdiction, law enforcement agency, or administrative agency

18  of any finding of guilt of, regardless of adjudication, or a

19  plea of nolo contendere or guilty to, any offense set forth in

20  the level 1 screening standards of chapter 435 or any

21  confirmed report of abuse of a vulnerable adult.

22         (2)(3)  The following categories of persons who are not

23  certified as nursing assistants under part XV of chapter 468

24  this part may be employed by a nursing facility for a period

25  of 4 months:

26         (a)  Persons who are enrolled in a state-approved

27  nursing assistant program; or

28         (b)  Persons who have been positively verified by the

29  department a state-approved test site as certified and on the

30  registry in another state with no findings of abuse, but who

31

                                  12

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 2031

    710-102-99






  1  have not completed the written examination required under s.

  2  468.823 this section.

  3

  4  The certification requirement must be met within 4 months

  5  after of initial employment as a nursing assistant in a

  6  licensed nursing facility.

  7         (4)  A person certified under this section on or after

  8  September 30, 1990, who has not worked for pay as a nursing

  9  assistant in a nursing-related occupation for a period of time

10  during a consecutive 24-month period must be recertified under

11  this section to be eligible to work in a nursing facility.

12         (3)(5)  Nursing homes shall require persons seeking

13  employment as a certified nursing assistant to submit an

14  employment history to the facility. The facility shall verify

15  the employment history unless, through diligent efforts, such

16  verification is not possible.  There shall be no monetary

17  liability on the part of, and no cause of action for damages

18  shall arise against, a former employer who reasonably and in

19  good faith communicates his or her honest opinion about a

20  former employee's job performance.

21         (6)  If the requirements pursuant to the Omnibus Budget

22  Reconciliation Act of 1987, as amended, for the certification

23  of nursing assistants are in conflict with this section, the

24  federal requirements shall prevail for those facilities

25  certified to provide care under Title XVIII (Medicare) or

26  Title XIX (Medicaid) of the Social Security Act.

27         (7)  The Department of Health may adopt such rules as

28  are necessary to carry out this section.

29         Section 4.  Paragraph (a) of subsection (1) and

30  subsection (2) of section 400.4255, Florida Statutes, are

31  amended to read:

                                  13

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 2031

    710-102-99






  1         400.4255  Use of licensed personnel.--

  2         (1)(a)  Persons under contract to the facility,

  3  facility staff, or volunteers, who are licensed according to

  4  chapter 464, or those persons exempt under s. 464.022(1), and

  5  others as defined by rule, may administer medications to

  6  residents, take residents' vital signs, manage individual

  7  weekly pill organizers for residents who self-administer

  8  medication, give prepackaged enemas ordered by a physician,

  9  observe residents, document observations on the appropriate

10  resident's record, report observations to the resident's

11  physician, and contract or allow residents or a resident's

12  representative, designee, surrogate, guardian, or attorney in

13  fact to contract with a third party, provided residents meet

14  the criteria for appropriate placement as defined in s.

15  400.426.  Nursing assistants certified pursuant to part XV of

16  chapter 468 s. 400.211 may take residents' vital signs as

17  directed by a licensed nurse or physician.

18         (2)  In facilities licensed to provide extended

19  congregate care, persons under contract to the facility,

20  facility staff, or volunteers, who are licensed according to

21  chapter 464, or those persons exempt under s. 464.022(1), or

22  those persons certified as nursing assistants pursuant to part

23  XV of chapter 468 s. 400.211, may also perform all duties

24  within the scope of their license or certification, as

25  approved by the facility administrator and pursuant to this

26  part.

27         Section 5.  Subsection (1) of section 400.462, Florida

28  Statutes, is amended to read:

29         400.462  Definitions.--As used in this part, the term:

30

31

                                  14

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 2031

    710-102-99






  1         (1)  "Certified nursing assistant" means any person who

  2  has been issued a certificate after fulfilling the

  3  requirements of part XV of chapter 468 s. 400.211.

  4         Section 6.  Paragraph (a) of subsection (10) of section

  5  400.506, Florida Statutes, 1998 Supplement, is amended to

  6  read:

  7         400.506  Licensure of nurse registries; requirements;

  8  penalties.--

  9         (10)(a)  A nurse registry may refer for contract in

10  private residences registered nurses and licensed practical

11  nurses registered and licensed under chapter 464, certified

12  nursing assistants certified under part XV of chapter 468 s.

13  400.211, and sitters, companions, or homemakers for the

14  purposes of providing those services authorized under s.

15  400.509(1).

16         Section 7.  Paragraph (a) of subsection (2) of section

17  455.667, Florida Statutes, 1998 Supplement, is amended to

18  read:

19         455.667  Ownership and control of patient records;

20  report or copies of records to be furnished.--

21         (2)  As used in this section, the terms "records

22  owner," "health care practitioner," and "health care

23  practitioner's employer" do not include any of the following

24  persons or entities; furthermore, the following persons or

25  entities are not authorized to acquire or own medical records,

26  but are authorized under the confidentiality and disclosure

27  requirements of this section to maintain those documents

28  required by the part or chapter under which they are licensed

29  or regulated:

30         (a)  Certified nursing assistants regulated under part

31  XV of chapter 468 s. 400.211.

                                  15

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 2031

    710-102-99






  1         Section 8.  Influenza and pneumonia immunizations shall

  2  be provided to each patient and employee of a nursing home

  3  licensed under part II of chapter 400, Florida Statutes. The

  4  influenza immunization shall be offered annually on or before

  5  September 1, or as soon thereafter as possible for patients

  6  and employees arriving after that date; and the pneumonia

  7  immunization shall be offered at the time of admission or

  8  employment, or as soon thereafter as possible, to each patient

  9  or employee not already having received such an immunization.

10  An immunization under this section may only be given upon the

11  informed written consent of the patient or employee, and shall

12  not be given or offered to any patient or employee who has

13  stated in writing that such an immunization conflicts with his

14  or her religious beliefs or who provides written certification

15  by a physician licensed under chapter 458 or chapter 459 that

16  such an immunization is unnecessary or hazardous to the

17  person's health. The nursing home shall provide each

18  immunization without charge, but may seek reimbursement from

19  the patient's or employee's health insurance or from Medicaid

20  or Medicare, if applicable, at a cost not to exceed $2.50 for

21  an influenza immunization and $9 for a pneumonia immunization.

22         Section 9.  The Department of Health is authorized six

23  additional positions for the purposes of implementing this

24  act.

25         Section 10.  This act shall take effect October 1,

26  1999.

27

28

29

30

31

                                  16

CODING: Words stricken are deletions; words underlined are additions.






    Florida House of Representatives - 1999                HB 2031

    710-102-99






  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Creates pt. XV, ch. 468, F.S., to provide for regulation
  4    of certified nursing assistants by the Department of
      Health. Provides certification and practice requirements.
  5    Requires maintenance of a state registry of certified
      nursing assistants. Requires employers of certified
  6    nursing assistant to provide certain information to the
      department on an annual basis, and provides for updating
  7    of the registry and assignment to inactive certification
      pursuant thereto. Provides for immunization of patients
  8    and employees of nursing homes against influenza and
      pneumonia. Requires informed written consent. Provides
  9    exemptions. Provides for reimbursement for the cost of
      such immunizations. See bill for details.
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

                                  17