Senate Bill 2360

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    Florida Senate - 1999                                  SB 2360

    By Senator Thomas





    3-938B-99

  1                      A bill to be entitled

  2         An act relating to home health agencies;

  3         amending s. 400.462, F.S.; providing

  4         definitions; amending s. 400.464, F.S.;

  5         establishing licensure and exemptions from

  6         licensure requirements for home health

  7         agencies; amending s. 400.471, F.S.; providing

  8         insurance coverage requirements; amending s.

  9         400.474, F.S.; providing grounds for

10         disciplinary action, penalties for operating

11         without a license, and grounds for revocation

12         or suspension of license; amending s. 400.484,

13         F.S.; establishing administrative fines for

14         various classes of deficiencies; amending s.

15         400.487, F.S.; providing for patient assessment

16         and establishment and review of plan of care;

17         creating s. 400.488, F.S.; providing for

18         assistance with self-administration of

19         medication; amending s. 400.491, F.S.;

20         providing for maintenance of service provision

21         plan; amending s. 400.497, F.S.; providing for

22         establishment of rules; amending s. 400.506,

23         F.S.; providing for licensure of nurse

24         registries; amending s. 400.509, F.S.;

25         providing for registration of particular

26         service providers; amending s. 400.512, F.S.;

27         providing for screening of home health agency

28         personnel; establishing a Task Force on Home

29         Health Services Licensure Provisions; providing

30         an effective date.

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

  2

  3         Section 1.  Section 400.462, Florida Statutes, is

  4  amended to read:

  5         400.462  Definitions.--As used in this part, the term:

  6         (1)  "Administrator" means a direct employee of the

  7  home health agency or a related organization, or of a

  8  management company that has a contract to manage the home

  9  health agency, to whom the governing body has delegated the

10  responsibility for day-to-day administration of the home

11  health agency.  The administrator must be a licensed

12  physician, physician assistant, or registered nurse licensed

13  to practice in this state or an individual having at least 1

14  year of supervisory or administrative experience in home

15  health care or in a facility licensed under chapter 395 or

16  under part II or part III of chapter 400.  An administrator

17  may manage a maximum of five licensed home health agencies

18  located within one agency service district or within an

19  immediately contiguous county. If the home health agency is

20  licensed under this chapter and is part of a retirement

21  community that provides multiple levels of care, an employee

22  of the retirement community may administer the home health

23  agency and up to a maximum of four entities licensed under

24  chapter 400 that are owned, operated, or managed by the same

25  corporate entity.  An administrator shall designate, in

26  writing, for each licensed entity, a qualified alternate

27  administrator to serve during absences.

28         (2)  "Agency" means the Agency for Health Care

29  Administration.

30         (3)(1)  "Certified nursing assistant" means any person

31  who has been issued a certificate under after fulfilling the

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  1  requirements of s. 400.211. The licensed home health agency or

  2  licensed nurse registry shall ensure that the certified

  3  nursing assistant employed by or under contract with the home

  4  health agency or licensed nurse registry is adequately trained

  5  to perform the tasks of a home health aide in the home

  6  setting.

  7         (4)  "Client" means an elderly, handicapped, or

  8  convalescent individual who receives personal care services,

  9  companion services, or homemaker services in the individual's

10  home or place of residence.

11         (5)(2)  "Companion" or "sitter" means a person who

12  cares for an elderly, handicapped, or convalescent individual

13  and accompanies such individual on trips and outings and may

14  prepare and serve meals to such individual. A companion may

15  not provide hands-on personal care to a client.

16         (6)(3)  "Department" means the Department of Children

17  and Family Health and Rehabilitative Services.

18         (7)  "Director of nursing" means a registered nurse and

19  direct employee of the agency or related business entity who

20  is a graduate of an approved school of nursing and is licensed

21  in this state; who has at least 1 year of supervisory

22  experience as a registered nurse in a licensed home health

23  agency, a facility licensed under chapter 395, or a facility

24  licensed under part II or part III of chapter 400; and who is

25  responsible for overseeing the professional nursing and home

26  health aid delivery of services of the agency.  An employee

27  may be the director of nursing of a maximum of five licensed

28  home health agencies operated by a related business entity and

29  located within one agency service district or within an

30  immediately contiguous county.  If the home health agency is

31  licensed under this chapter and is part of a retirement

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  1  community that provides multiple levels of care, an employee

  2  of the retirement community may serve as the director of

  3  nursing of the home health agency and of up to four entities

  4  licensed under chapter 400 which are owned, operated, or

  5  managed by the same corporate entity.  A director of nursing

  6  shall designate, in writing, for each licensed entity, a

  7  qualified alternate registered nurse to serve during the

  8  absence of the director of nursing.

  9         (8)(4)  "Home health agency" means an organization that

10  provides home health services and staffing services for health

11  care facilities.

12         (9)(5)  "Home health agency personnel" means persons

13  who are employed by or under contract with a home health

14  agency and enter the home or place of residence of patients at

15  any time in the course of their employment or contract.

16         (10)(6)  "Home health services" means health and

17  medical services and medical supplies furnished by an

18  organization to an individual by home health agency personnel

19  or by others under arrangements with the agency, on a visiting

20  basis, in the individual's home or place of residence.  The

21  term includes organizations that provide one or more of, but

22  is not limited to, the following:

23         (a)  Nursing care.

24         (b)  Physical, occupational, respiratory, or speech

25  therapy.

26         (c)  Home health aide services.

27         (d)  Dietetics and nutrition practice and nutrition

28  counseling Nutritional guidance.

29         (e)  Medical supplies, restricted to drugs and

30  biologicals prescribed by a physician.

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  1         (11)  "Home health aide" means a person who provides

  2  hands-on personal care, performs simple procedures as an

  3  extension of therapy or nursing services, assists in

  4  ambulation or exercises, or assists in administering

  5  medications as permitted in rule and for which the person has

  6  received training established by the agency under s.

  7  400.497(1).

  8         (12)(7)  "Homemaker" means a person who performs

  9  household chores that include housekeeping, meal planning and

10  preparation, shopping assistance, and routine household

11  activities for an elderly, handicapped, or convalescent

12  individual. A homemaker may not provide hands-on personal care

13  to a client.

14         (13)  "Home infusion therapy provider" means an

15  organization that employs, contracts with, or refers a

16  licensed professional, who has received advanced training and

17  experience in intravenous infusion therapy and who administers

18  infusion therapy to a patient in the patient's home or place

19  of residence.

20         (14)  "Home infusion therapy" means the administration

21  of intravenous pharmacological or nutritional products to a

22  patient in his or her home.

23         (15)(8)  "Nurse registry" means any person that

24  procures, offers, promises, or attempts to secure

25  health-care-related contracts for registered nurses, licensed

26  practical nurses, certified nursing assistants, home health

27  aides sitters, companions, or homemakers, who are compensated

28  by fees as independent contractors, including, but not limited

29  to, contracts for the provision of services to patients and

30  contracts to provide private duty or staffing services to

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  1  health care facilities licensed under chapter 395 or this

  2  chapter or other business entities.

  3         (16)  "Organization" means a corporation, government or

  4  governmental subdivision or agency, partnership or

  5  association, two or more persons having a joint or common

  6  interest, or any other legal or commercial entity.  The term

  7  does not include an entity that provides services using only

  8  volunteers or only individuals related by blood or marriage to

  9  the patient or client.

10         (17)(9)  "Patient" means any person who receives home

11  health services in his or her home or place of residence.

12         (18)  "Personal care" means assistance to a patient in

13  the activities of daily living, such as dressing, bathing,

14  eating, or personal hygiene, and assistance in physical

15  transfer, ambulation, and in administering medications as

16  permitted by rule.

17         (19)  "Physician" means a person licensed under chapter

18  458, chapter 459, chapter 460, or chapter 461.

19         (20)(10)  "Screening" means the assessment of the

20  background of home health agency personnel, nurse registry

21  personnel, and persons registered under s. 400.509 and

22  includes employment or contractual history checks, records

23  checks of the department's central abuse hotline under chapter

24  415 relating to vulnerable adults, and statewide criminal

25  records correspondence checks through the Department of Law

26  Enforcement.

27         (21)  "Skilled care" means nursing services or

28  therapeutic services delivered by a health care professional

29  who is licensed under chapter 464; part I, part III, or part V

30  of chapter 468; or chapter 486 and who is employed by or under

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  1  contract with a licensed home health agency or is referred by

  2  a licensed nurse registry.

  3         (22)(11)  "Staffing services" means services provided

  4  to a health care facility or other business entity on a

  5  temporary basis by licensed health care personnel, including

  6  certified nursing assistants and home heath aides who are

  7  employed by, or work under the auspices of, a licensed home

  8  health agency or who are registered with a licensed nurse

  9  registry.

10         Section 2.  Section 400.464, Florida Statutes, is

11  amended to read:

12         400.464  Home health agencies to be licensed;

13  expiration of license; exemptions; unlawful acts; penalties.--

14         (1)  Any home health agency must be licensed by the

15  agency for Health Care Administration to operate in this

16  state.  A license issued to a home health agency, unless

17  sooner suspended or revoked, expires 1 year after its date of

18  issuance.  However, any home health agency that is operated by

19  the Federal Government is exempt from this part.

20         (2)  If the licensed home health agency operates

21  related offices, each related office outside the county where

22  the main office is located must be separately licensed.  The

23  counties where the related offices are operating must be

24  specified on the license in the main office.

25         (3)  An entity receiving a certificate-of-need

26  exemption under s. 408.0366 may request one home health agency

27  license to provide Medicare and non-Medicare home health

28  services to residents of the facility and non-Medicare home

29  health services to persons in one or more counties within the

30  agency service district where the main office of the home

31  health agency is located.

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  1         (3)  The furnishing of only home dialysis services,

  2  supplies, or equipment, or personal care services as provided

  3  by a community-care-for-the-elderly lead agency under s.

  4  430.205, or personal care services provided through a

  5  community-care-for-disabled-adults program under s. 410.604,

  6  is exempt from this part.  The personal care services

  7  exemptions apply only to community-care-for-the-elderly lead

  8  agencies and community-care-for-disabled-adults programs that

  9  directly provide only personal care services to their clients

10  and do not provide other home health services.

11         (4)  Any program offered through a county health

12  department that makes home visits for the purpose of providing

13  only environmental assessments, case management, health

14  education, or personal care services is exempt from this part.

15         (5)(a)  It is unlawful for any person to offer or

16  advertise home health services to the public unless he or she

17  has a valid license under this part. It is unlawful for any

18  holder of a license issued under this part to advertise or

19  indicate to the public that it holds a home health agency

20  license other than the one it has been issued.

21         (b)  A person who violates paragraph (a) is subject to

22  an injunctive proceeding under s. 400.515.  A violation of

23  paragraph (a) is a deceptive and unfair trade practice and

24  constitutes a violation of the Florida Deceptive and Unfair

25  Trade Practices Act.

26         (c)  A person who violates paragraph (a) commits a

27  misdemeanor of the second degree, punishable as provided in s.

28  775.082 or s. 775.083.  Any person who commits a second or

29  subsequent violation commits a misdemeanor of the first

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

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  1  Each day of continuing violation constitutes a separate

  2  offense.

  3         (4)(6)  Any infusion therapy provider shall be licensed

  4  as a home health agency.  Any infusion therapy provider

  5  currently authorized to receive Medicare reimbursement under a

  6  DME - Part B Provider number for the provision of infusion

  7  therapy shall be licensed as a noncertified home health

  8  agency. Such a provider shall continue to receive that

  9  specified Medicare reimbursement without being certified so

10  long as the reimbursement is limited to those items authorized

11  pursuant to the DME - Part B Provider Agreement and the agency

12  is licensed in compliance with the other provisions of this

13  part.

14         (5)(a)  An organization may not provide, offer, or

15  advertise home health services to the public unless the

16  organization has a valid license or is specifically exempted

17  under this part. An organization that offers or advertises to

18  the public any service for which licensure or registration is

19  required under this part must include in the advertisement the

20  license number or regulation number issued to the organization

21  by the agency.  The agency shall assess a fine of not less

22  than $100 to any licensee or registrant who fails to include

23  the license or registration number when submitting the

24  advertisement for publication, broadcast or printing.  The

25  holder of a license issued under this part may not advertise

26  or indicate to the public that it holds a home health agency

27  or nurse registry license other than the one it has been

28  issued.

29         (b)  A person who violates paragraph (a) is subject to

30  an injunctive proceeding under s. 400.515.  A violation of

31  paragraph (a) is a deceptive and unfair trade practice and

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  1  constitutes a violation of the Florida Unfair and Deceptive

  2  Trade Practices Act.

  3         (c)  A person who violates the provisions of paragraph

  4  (a) commits a misdemeanor of the second degree, punishable as

  5  provided in s. 775.082 or s. 775.083.  Any person who commits

  6  a second or subsequent violation commits a misdemeanor of the

  7  first degree, punishable as provided in s. 775.082 or s.

  8  775.083.  Each day of continuing violation constitutes a

  9  separate offense.

10         (6)  The following are exempt from the licensure

11  requirements of this part:

12         (a)  A home health agency operated by the Federal

13  Government.

14         (b)  Home health services provided by a state agency,

15  either directly or through a contractor with:

16         1.  The Department of Elderly Affairs.

17         2.  The Department of Health, a community health

18  center, or a rural health network that furnishes home visits

19  for the purpose of providing environmental assessments, case

20  management, health eduction, personal-care services, family

21  planning, or follow-up treatment, or for the purpose of

22  monitoring and tracking disease.

23         3.  Services provided to persons who have developmental

24  disabilities, as defined in s. 393.063(11).

25         (c)  A health care professional, whether or not

26  incorporated, who is licensed under chapter 458, chapter 459,

27  chapter 464, part I, part III, part V, or part X of chapter

28  468, chapter 480, chapter 486, chapter 490, or chapter 491,

29  and who is acting alone within the scope of his or her

30  professional license to provide care to patients in their

31  homes.

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  1         (d)  A home health aide or certified nursing assistant

  2  who is acting in his or her individual capacity, within the

  3  definitions and standards of his or her occupation, and who

  4  provides hands-on care to patients in their homes.

  5         (e)  An individual who acts alone, in his or her

  6  individual capacity, and who is not employed by or affiliated

  7  with a licensed home health agency or registered with a

  8  licensed nurse registry.  This exemption does not entitle an

  9  individual to perform home health services without the

10  required professional license.

11         (f)  The delivery of instructional services in home

12  dialysis and home dialysis supplies and equipment.

13         (g)  The delivery of nursing home services for which

14  the nursing home is licensed under part II of this chapter, to

15  serve its residents in its facility.

16         (h)  The delivery of assisted living facility services

17  for which the assisted living facility is licensed under part

18  III of this chapter, to serve its residents in its facility.

19         (i)  The delivery of hospice services for which the

20  hospice is licensed under part VI of this chapter, to serve

21  hospice patients admitted to its service.

22         (j)  A hospital that provides services for which it is

23  licensed under chapter 395.

24          (k)  The delivery of community residential services

25  for which the community residential home is licensed under

26  chapter 419, to serve the residents in its facility.

27         (l)  A not-for-profit, community-based agency that

28  provides early intervention services to infants and toddlers.

29         (m)  Certified rehabilitation agencies and

30  comprehensive outpatient rehabilitation facilities that are

31  certified under Title 18 of the Social Security Act.

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  1         (n)  The delivery of adult family care home services

  2  for which the adult family care home is licensed under part

  3  VII of this chapter, to serve the residents in its facility.

  4         Section 3.  Section 400.471, Florida Statutes, 1998

  5  Supplement, is amended to read:

  6         400.471  Application for license; fee; provisional

  7  license; temporary permit.--

  8         (1)  Application for an initial license or for renewal

  9  of an existing license must be made under oath to the agency

10  for Health Care Administration on forms furnished by it and

11  must be accompanied by the appropriate license fee as provided

12  in subsection (8).  The agency must take final action on an

13  initial licensure application within 60 days after receipt of

14  all required documentation.

15         (2)  The applicant must file with the application

16  satisfactory proof that the home health agency is in

17  compliance with this part and applicable rules, including:

18         (a)  A listing of services to be provided, either

19  directly by the applicant or through contractual arrangements

20  with existing providers;

21         (b)  The number and discipline of professional staff to

22  be employed; and

23         (c)  Proof of financial ability to operate.

24

25  If the applicant has applied for a certificate of need under

26  ss. 408.0331-408.045 within the preceding 12 months, the

27  applicant may submit the proof required during the

28  certificate-of-need process along with an attestation that

29  there has been no substantial change in the facts and

30  circumstances underlying the original submission.

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  1         (3)  An applicant for initial licensure must

  2  demonstrate financial ability to operate by submitting a

  3  balance sheet and income and expense statement for the first 2

  4  years of operation which provide evidence of having sufficient

  5  assets, credit, and projected revenues to cover liabilities

  6  and expenses. The applicant shall have demonstrated financial

  7  ability to operate if the applicant's assets, credit, and

  8  projected revenues meet or exceed projected liabilities and

  9  expenses.  All documents required under this subsection must

10  be prepared in accordance with generally accepted accounting

11  principles, and the financial statement must be signed by a

12  certified public accountant.

13         (4)  Each applicant for licensure must comply with the

14  following requirements:

15         (a)  Upon receipt of a completed, signed, and dated

16  application, the agency shall require background screening of

17  the applicant, in accordance with the level 2 standards for

18  screening set forth in chapter 435. As used in this

19  subsection, the term "applicant" means the administrator, or a

20  similarly titled person who is responsible for the day-to-day

21  operation of the licensed home health agency, and the

22  financial officer, or similarly titled individual who is

23  responsible for the financial operation of the licensed home

24  health agency.

25         (b)  The agency may require background screening for a

26  member of the board of directors of the licensee or an officer

27  or an individual owning 5 percent or more of the licensee if

28  the agency reasonably suspects that such individual has been

29  convicted of an offense prohibited under the level 2 standards

30  for screening set forth in chapter 435.

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  1         (c)  Proof of compliance with the level 2 background

  2  screening requirements of chapter 435 which has been submitted

  3  within the previous 5 years in compliance with any other

  4  health care or assisted living licensure requirements of this

  5  state is acceptable in fulfillment of paragraph (a). Proof of

  6  compliance with background screening which has been submitted

  7  within the previous 5 years to fulfill the requirements of the

  8  Department of Insurance pursuant to chapter 651 as part of an

  9  application for a certificate of authority to operate a

10  continuing care retirement community is acceptable in

11  fulfillment of the Department of Law Enforcement and Federal

12  Bureau of Investigation background check.

13         (d)  A provisional license may be granted to an

14  applicant when each individual required by this section to

15  undergo background screening has met the standards for the

16  abuse registry background check and the Department of Law

17  Enforcement background check, but the agency has not yet

18  received background screening results from the Federal Bureau

19  of Investigation. A standard license may be granted to the

20  licensee upon the agency's receipt of a report of the results

21  of the Federal Bureau of Investigation background screening

22  for each individual required by this section to undergo

23  background screening which confirms that all standards have

24  been met, or upon the granting of a disqualification exemption

25  by the agency as set forth in chapter 435. Any other person

26  who is required to undergo level 2 background screening may

27  serve in his or her capacity pending the agency's receipt of

28  the report from the Federal Bureau of Investigation. However,

29  the person may not continue to serve if the report indicates

30  any violation of background screening standards and a

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  1  disqualification exemption has not been requested of and

  2  granted by the agency as set forth in chapter 435.

  3         (e)  Each applicant must submit to the agency, with its

  4  application, a description and explanation of any exclusions,

  5  permanent suspensions, or terminations of the licensee or

  6  potential licensee from the Medicare or Medicaid programs.

  7  Proof of compliance with the requirements for disclosure of

  8  ownership and control interest under the Medicaid or Medicare

  9  programs may be accepted in lieu of this submission.

10         (f)  Each applicant must submit to the agency a

11  description and explanation of any conviction of an offense

12  prohibited under the level 2 standards of chapter 435 by a

13  member of the board of directors of the applicant, its

14  officers, or any individual owning 5 percent or more of the

15  applicant. This requirement does not apply to a director of a

16  not-for-profit corporation or organization if the director

17  serves solely in a voluntary capacity for the corporation or

18  organization, does not regularly take part in the day-to-day

19  operational decisions of the corporation or organization,

20  receives no remuneration for his or her services on the

21  corporation or organization's board of directors, and has no

22  financial interest and has no family members with a financial

23  interest in the corporation or organization, provided that the

24  director and the not-for-profit corporation or organization

25  include in the application a statement affirming that the

26  director's relationship to the corporation satisfies the

27  requirements of this paragraph.

28         (g)  A license may not be granted to an applicant if

29  the applicant, administrator, or financial officer has been

30  found guilty of, regardless of adjudication, or has entered a

31  plea of nolo contendere or guilty to, any offense prohibited

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  1  under the level 2 standards for screening set forth in chapter

  2  435, unless an exemption from disqualification has been

  3  granted by the agency as set forth in chapter 435.

  4         (h)  The agency may deny or revoke licensure if the

  5  applicant:

  6         1.  Has falsely represented a material fact in the

  7  application required by paragraph (e) or paragraph (f), or has

  8  omitted any material fact from the application required by

  9  paragraph (e) or paragraph (f); or

10         2.  Has been or is currently excluded, suspended,

11  terminated from, or has involuntarily withdrawn from

12  participation in this state's Medicaid program, or the

13  Medicaid program of any other state, or from participation in

14  the Medicare program or any other governmental or private

15  health care or health insurance program.

16         (i)  An application for license renewal must contain

17  the information required under paragraphs (e) and (f).

18         (5)  The home health agency must also obtain and

19  maintain the following liability insurance coverages in an.

20  Proof of liability insurance, as defined in s. 624.605, must

21  be submitted with the application.  The Agency for Health Care

22  Administration shall set the required amounts of liability

23  insurance by rule, but the required amount of must not be less

24  than $250,000 per claim, and the home health agency must

25  submit proof of coverage with an initial application for

26  licensure and with each annual application for license

27  renewal:

28         (a)  Malpractice insurance as defined in s.

29  624.605(1)(k);

30         (b)  Liability insurance as defined in s.

31  624.605(1)(b).

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  1         (6)  Ninety Sixty days before the expiration date, an

  2  application for renewal must be submitted to the agency for

  3  Health Care Administration under oath on forms furnished by

  4  it, and a license must be renewed if the applicant has met the

  5  requirements established under this part and applicable rules.

  6  The home health agency must file with the application

  7  satisfactory proof that it is in compliance with this part and

  8  applicable rules.  If there is evidence of financial

  9  instability, the home health agency must submit satisfactory

10  proof of its financial ability to comply with the requirements

11  of this part.

12         (7)  When transferring the ownership of a home health

13  agency, the transferee must submit an application for a

14  license at least 60 days before the effective date of the

15  transfer.  If the home health agency is being leased, a copy

16  of the lease agreement must be filed with the application.

17         (8)  The license fee and annual renewal fee required of

18  a home health agency are is nonrefundable.  The agency for

19  Health Care Administration shall set the fees in an amount

20  that is sufficient to cover its costs in carrying out its

21  responsibilities under this part, but not to exceed $1,000.

22  However, state, county, or municipal governments applying for

23  licenses under this part are exempt from the payment of

24  license fees.  All fees collected under this part must be

25  deposited in the Health Care Trust Fund for the administration

26  of this part.

27         (9)  The license must be displayed in a conspicuous

28  place in the administrative office of the home health agency

29  and is valid only while in the possession of the person to

30  which it is issued.  The license may not be sold, assigned, or

31  otherwise transferred, voluntarily or involuntarily, and is

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  1  valid only for the home health agency and location for which

  2  originally issued.

  3         (10)  A home health agency against whom a revocation or

  4  suspension proceeding is pending at the time of license

  5  renewal may be issued a provisional license effective until

  6  final disposition by the agency for Health Care Administration

  7  of such proceedings. If judicial relief is sought from the

  8  final disposition, the court that has jurisdiction may issue a

  9  temporary permit for the duration of the judicial proceeding.

10         (11)  The agency may department shall not issue a

11  license designated as certified to a home health agency that

12  which fails to receive a certificate of need under the

13  provisions of ss. 408.031-408.045 or that fails to satisfy the

14  requirements of a Medicare certification survey from the

15  agency.

16         (12)  The agency may not issue a license to a home

17  health agency that has any unpaid fines assessed under this

18  part.

19         Section 4.  Section 400.474, Florida Statutes, 1998

20  Supplement, is amended to read:

21         400.474  Denial, suspension, revocation of license;

22  injunction; grounds; penalties.--

23         (1)  The agency for Health Care Administration may

24  deny, revoke, or suspend a license, or impose an

25  administrative fine in the manner provided in chapter 120, or

26  initiate injunctive proceedings under s. 400.515.

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

28  agency or its employee is grounds for disciplinary action by

29  the agency for Health Care Administration:

30         (a)  Violation of this part or of applicable rules.

31

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  1         (b)  An intentional, reckless, or negligent act that

  2  materially affects the health or safety of a patient.

  3         (c)  Failure to provide at least one of the services

  4  listed in s. 400.462(10) directly to patients for a period of

  5  6 consecutive months Knowingly providing home health services

  6  in an unlicensed assisted living facility or unlicensed adult

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

  8  reports the unlicensed facility or home to the agency within

  9  72 hours after providing the services.

10         (3)  The agency may impose the following penalties for

11  operating without a license upon an applicant or owner who has

12  in the past operated, or who currently operates, a licensed

13  home health agency.

14         (a)  If a home health agency that is found to be

15  operating without a license wishes to apply for a license, the

16  home health agency may submit an application only after the

17  agency has verified that the home health agency no longer

18  operates an unlicensed home health agency.

19         (b)  Any person, partnership, or corporation that

20  violates paragraph (a) and that previously operated a licensed

21  home health agency or concurrently operates both a licensed

22  home health agency and an unlicensed home health agency

23  commits a felony of the third degree punishable as provided in

24  s. 775.082, s. 775.083, or s. 775.084.  If an owner has an

25  interest in more than one home health agency and fails to

26  license any one of those home health agencies, the agency must

27  issue a cease and desist order for the activities of the

28  unlicensed home health agency and impose a moratorium on any

29  or all of the licensed related home health agencies until the

30  unlicensed home health agency is licensed.

31

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  1         (c)  If any home health agency meets the criteria in

  2  paragraph (a) or paragraph (b) and that home health agency has

  3  received any government reimbursement for services provided by

  4  an unlicensed home health agency, the agency shall make a

  5  fraud referral to the appropriate government reimbursement

  6  program.

  7         (4)  The agency may deny, revoke, or suspend the

  8  license of a home health agency, or may impose on a home

  9  health agency administrative fines not to exceed the aggregate

10  sum of $5,000 if:

11         (a)  The agency is unable to obtain entry to the home

12  health agency to conduct a licensure survey, complaint

13  investigation, surveillance visit, or monitoring visit.

14         (b)  An applicant or a licensed home health agency has

15  falsely represented a material fact in the application, or has

16  omitted from the application any material fact, including, but

17  not limited to, the fact that the controlling or ownership

18  interest is held by any officer, director, agent, manager,

19  employee, affiliated person, partner, or shareholder who is

20  not eligible to participate.

21         (c)  An applicant, owner, or person who has a 5 percent

22  or greater interest in a licensed entity:

23         1.  Has been previously found by any licensing,

24  certifying, or professional standards board or agency to have

25  violated the standards or conditions that relate to home

26  health-related licensure or certification, or to the quality

27  of home health-related services provided; or

28         2.  Has been or is currently excluded, suspended,

29  terminated from, or has involuntarily withdrawn from,

30  participation in the Medicaid program of this state or any

31

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  1  other state, the Medicare program, or any other governmental

  2  health care or health insurance program.

  3         Section 5.  Section 400.484, Florida Statutes, is

  4  amended to read:

  5         400.484  Right of inspection; deficiencies; fines.--

  6         (1)  Any duly authorized officer or employee of the

  7  agency for Health Care Administration may make such

  8  inspections and investigations as are necessary in order to

  9  determine the state of compliance with this part and with

10  applicable rules.  The right of inspection extends to any

11  business that the agency for Health Care Administration has

12  reason to believe is being operated as a home health agency

13  without a license, but such inspection of any such business

14  may not be made without the permission of the owner or person

15  in charge unless a warrant is first obtained from a circuit

16  court. Any application for a license issued under this part or

17  for license renewal constitutes permission for an appropriate

18  inspection to verify the information submitted on or in

19  connection with the application.

20         (2)  The agency shall impose fines for various classes

21  of deficiencies in accordance with the following schedule:

22         (a)  A class I deficiency is any act, omission, or

23  practice that results in a patient's death, disablement, or

24  permanent injury, or places a patient at imminent risk of

25  death, disablement, or permanent injury.  Upon finding a class

26  I deficiency, the agency may impose an administrative fine in

27  the amount of $5,000 for each occurrence and each day that the

28  deficiency exists.  In addition, the agency may immediately

29  revoke the license, or impose a moratorium on the admission of

30  new patients, until the factors causing the deficiency have

31  been corrected.

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  1         (b)  A class II deficiency is any act, omission, or

  2  practice that has a direct adverse effect on the health,

  3  safety, or security of a patient.  Upon finding a class II

  4  deficiency, the agency may impose an administrative fine in

  5  the amount of $1,000 for each occurrence and each day that the

  6  deficiency exists.  In addition, the agency may suspend the

  7  license, or impose a moratorium on the admission of new

  8  patients, until the deficiency has been corrected.

  9         (c)  A class III deficiency is any act, omission, or

10  practice that has an indirect, adverse effect on the health,

11  safety, or security of a patient.  Upon finding an uncorrected

12  or repeated class III deficiency, the agency may impose an

13  administrative fine not to exceed $500 for each occurrence and

14  each day that the uncorrected or repeated deficiency exists.

15         (d)  A class IV deficiency is any act, omission, or

16  practice related to required reports, forms, or documents

17  which does not have the potential of negatively affecting

18  patients.  These violations are of a type that the agency

19  determines do not threaten the health, safety, or security of

20  patients.  Upon finding an uncorrected or repeated class IV

21  deficiency, the agency may impose an administrative fine not

22  to exceed $200 for each occurrence and each day that the

23  uncorrected or repeated deficiency exists.

24         Section 6.  Section 400.487, Florida Statutes, is

25  amended to read:

26         400.487  Patient assessment; establishment and review

27  of plan of care; provision of services.--

28         (1)  The home health agency providing skilled care and

29  treatment must make an assessment of the patient's needs

30  within 48 hours after the start of services.

31

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  1         (2)  The attending physician for a patient who is to

  2  receive skilled receiving care or treatment provided by a

  3  licensed nurse or by a physical, occupational, or speech

  4  therapist must establish treatment orders a plan of care for

  5  the patient on behalf of the home health agency that provides

  6  services to the patient.  The original plan of treatment

  7  orders must be signed by the physician within 24 days after

  8  the start of care and must be reviewed, at least every 62 days

  9  or more frequently if the patient's illness requires, by the

10  physician in consultation with home health agency personnel

11  that provide services to the patient.

12         (3)  If a client is accepted for home health aide

13  services or homemaker or companion services and such services

14  do not require a physician's order, the home health agency

15  shall establish a service provision plan and maintain a record

16  of the services provided.

17         (4)(3)  Each patient or client has the right to be

18  informed of and to participate in the planning of his or her

19  care.  Each patient must be provided, upon request, a copy of

20  the plan of care or service provision plan established and

21  maintained for that patient or client by the home health

22  agency.

23         (4)  Home health services that are provided to a

24  patient must be evaluated in the patient's home by a physician

25  licensed under chapter 458, chapter 459, chapter 460, or

26  chapter 461 or by a registered nurse licensed under chapter

27  464 as frequently as necessary to assure safe and adequate

28  care, but not less frequently than once every 62 days.

29         (5)  When nursing services are ordered, the home health

30  agency to which a patient has been admitted for care must

31  provide the initial admission visit, all service evaluation

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  1  visits, and the discharge visit by qualified personnel who are

  2  on the payroll of, and to whom an IRS payroll form W-2 will be

  3  issued by, the home health agency. A home health agency must

  4  provide at least one home health service to patients for whom

  5  it has agreed to provide care. Services provided by others

  6  under contractual arrangements to a home health agency

  7  agency's patients must be monitored and managed controlled by

  8  the admitting home health agency. The admitting home health

  9  agency is fully responsible for ensuring that all care

10  provided through its employees or contract staff is delivered

11  in accordance with this part and applicable rules.

12         (6)  The skilled care services provided by a home

13  health agency, directly or under contract, must be supervised

14  and coordinated in accordance with the plan of care.

15         Section 7.  Section 400.488, Florida Statutes, is

16  created to read:

17         400.488  Assistance with self-administration of

18  medication.--

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

20         (a)  "Informed consent" means advising the patient, or

21  the patient's surrogate, guardian, or attorney in fact, that

22  the patient may be receiving assistance with

23  self-administration of medication from an unlicensed person.

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

25  currently licensed to practice nursing or medicine who is

26  employed by or under contract to a home health agency and who

27  has received training with respect to assisting with the

28  self-administration of medication as provided by agency rule.

29         (2)  Patients who are capable of self-administering

30  their own medications without assistance shall be encouraged

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

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  1  consistent with a dispensed prescription's label or the

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

  3  patient whose condition is medically stable with the

  4  self-administration of routine, regularly scheduled

  5  medications that are intended to be self-administered.

  6  Assistance with self-medication by an unlicensed person may

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

  8  informed consent of, a patient or the patient's surrogate,

  9  guardian, or attorney in fact. For purposes of this section,

10  self-administered medications include both legend and

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

12  topical opthalmic, otic, and nasal dosage forms, including

13  solutions, suspensions, sprays, and inhalers.

14         (3)  Assistance with self-administration of medication

15  includes:

16         (a)  Taking the medication, in its previously

17  dispensed, properly labeled container, from where it is stored

18  and bringing it to the patient.

19         (b)  In the presence of the patient, reading the label,

20  opening the container, removing a prescribed amount of

21  medication from the container, and closing the container.

22         (c)  Placing an oral dosage in the patient's hand or

23  placing the dosage in another container and helping the

24  patient by lifting the container to his or her mouth.

25         (d)  Applying topical medications.

26         (e)  Returning the medication container to proper

27  storage.

28         (f)  Keeping a record of when a patient receives

29  assistance with self-administration under this section.

30         (4)  Assistance with self-administration does not

31  include:

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

  2  medication doses, except for measuring a prescribed amount of

  3  liquid medication or breaking a scored tablet or crushing a

  4  tablet as prescribed.

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

  6  administration of medications by any injectable route.

  7         (c)  Administration of medications through intermittent

  8  positive pressure breathing machines or a nebulizer.

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

10  inserted in a cavity of the body.

11         (e)  Administration of parenteral preparations.

12         (f)  Irrigations or debriding agents used in the

13  treatment of a skin condition.

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

15         (h)  Medications ordered by the physician or health

16  care professional with prescriptive authority to be given "as

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

18  that preclude independent judgment on the part of the

19  unlicensed person, and at the request of a competent patient.

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

21  the amount, the strength of dosage, the method of

22  administration, or the reason for administration requires

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

24         (5)  Assistance with the self-administration of

25  medication by an unlicensed person as described in this

26  section does not constitute administration as defined in s.

27  465.003.

28         (6)  The agency may by rule establish procedures and

29  interpret terms as necessary to administer this section.

30         Section 8.  Section 400.491, Florida Statutes, 1998

31  Supplement, is amended to read:

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  1         400.491  Clinical records.--

  2         (1)  The home health agency must maintain for each

  3  patient who receives skilled care a clinical record that

  4  includes the services the home health agency provides directly

  5  and those provided through arrangement with another health

  6  care provider, except for those services provided by persons

  7  referred under s. 400.509.  Such records must contain

  8  pertinent past and current medical, nursing, social and other

  9  therapeutic information, the plan of treatment orders, and

10  other such information as is necessary for the safe and

11  adequate care of the patient.  When home health services are

12  terminated, the record must show the date and reason for

13  termination.  Such records are considered patient records

14  under s. 455.241 s. 455.667, and must be maintained by the

15  home health agency for 5 years following termination of

16  services.  If a patient transfers to another home health

17  agency, a copy of his or her record must be provided to the

18  other home health agency upon request.

19         (2)  The home health agency must maintain for each

20  client who receives nonskilled care a service-provision plan.

21  Such records must be maintained by the home health agency for

22  1 year following termination of services.

23         Section 9.  Section 400.497, Florida Statutes, is

24  amended to read:

25         400.497  Rules establishing minimum standards.--The

26  agency for Health Care Administration shall adopt, publish,

27  and enforce rules to implement this part, including, as

28  applicable, ss. 400.506 and 400.509, which must provide

29  reasonable and fair minimum standards relating to:

30         (1)  Scope of home health services to be provided.

31

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  1         (1)(2)  The qualifications, and minimum training

  2  requirements, and supervision requirements of all home health

  3  agency personnel. The agency shall establish the curriculum

  4  and instructor qualifications for home health aide training.

  5  Licensed home health agencies may provide this training and

  6  shall furnish documentation of such training to other licensed

  7  home health agencies upon request. The agency shall allow

  8  shared staffing if the home health agency is part of a

  9  retirement community that provides multiple levels of care, is

10  located on one campus, is licensed under this chapter, and

11  otherwise meets the requirements of law and rule.

12         (2)(3)  Requirements for prospective employees

13  procedures for maintaining a record of the employment history

14  of all home health agency personnel.  A home health agency

15  must require prospective employees and contractors its

16  personnel to submit an employment or contractual history to

17  the home health agency, and it must verify the employment or

18  contractual history unless through diligent efforts such

19  verification is not possible.  The agency for Health Care

20  Administration shall prescribe by rule the minimum

21  requirements for establishing that diligent efforts have been

22  made. The administrator of a home health agency must review

23  the employment history and references of home health agency

24  personnel and applicants for employment.  The Agency for

25  Health Care Administration must review the employment history

26  and references of each administrator of a home health agency.

27  There is no monetary liability on the part of, and no cause of

28  action for damages arising arises against, a former employer

29  of a prospective employee of or prospective independent

30  contractor with a licensed home health agency who reasonably

31  and in good faith communicates his or her honest opinions

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  1  about the former employee's job performance. This subsection

  2  does not affect the official immunity of an officer or

  3  employee of a public corporation.

  4         (3)(4)  Licensure application and renewal.

  5         (4)(5)  The administration of the home health agency,

  6  including requirements for onsite and electronic accessibility

  7  of supervisory personnel.

  8         (5)(6)  Procedures for administering drugs and

  9  biologicals.

10         (6)(7)  Procedures for maintaining patients' patient

11  records.

12         (7)(8)  Ensuring that the home health services provided

13  by a home health agency are provided in accordance with the

14  plan of treatment orders established for each patient for whom

15  physician orders are required.

16         (8)(9)  Geographic service areas.

17         (9)(10)  Standards for contractual arrangements for the

18  provision of home health services by providers not employed by

19  the home health agency to whom the patient has been admitted

20  providing for the patient's care and treatment.

21         Section 10.  Subsections (1) and (10) of section

22  400.506, Florida Statutes, 1998 Supplement, are amended to

23  read:

24         400.506  Licensure of nurse registries; requirements;

25  penalties.--

26         (1)  A nurse registry is exempt from the licensing

27  requirements of a home health agency, but must be licensed as

28  a nurse registry. Each operational site of the nurse registry

29  must be licensed, unless there is more than one site within a

30  county.  If there is more than one site within a county only

31

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  1  one license per county is required.  Each operational site

  2  must be listed on the license.

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

  4  private residences registered nurses and licensed practical

  5  nurses registered and licensed under chapter 464, certified

  6  nursing assistants certified under s. 400.211, home health

  7  aides who present documented proof of successful completion of

  8  the training required by rule of the agency, and sitters,

  9  companions, or homemakers for the purposes of providing those

10  services authorized under s. 400.509(1). Each person referred

11  by a nurse registry must provide current documentation that he

12  or she is free from communicable diseases.

13         (b)  A certified nursing assistant or home health aide

14  may be referred for a contract to provide care to a patient in

15  his or her home only if that patient is under a physician's

16  care.  A certified nursing assistant or home health aide

17  referred for contract in a private residence shall be limited

18  to assisting a patient with bathing, dressing, toileting,

19  grooming, eating, physical transfer, and those normal daily

20  routines the patient could perform for himself or herself were

21  he or she physically capable.  A certified nursing assistant

22  or home health aide may not provide medical or other health

23  care services that require specialized training and that may

24  be performed only by licensed health care professionals.  The

25  nurse registry shall obtain the name and address of the

26  attending physician and send written notification to the

27  physician within 48 hours after a contract is concluded that a

28  certified nursing assistant or home health aide will be

29  providing care for that patient.

30         (c)  A registered nurse shall make monthly visits to

31  the patient's home to assess the patient's condition and

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  1  quality of care being provided by the certified nursing

  2  assistant or home health aide.  Any condition which in the

  3  professional judgment of the nurse requires further medical

  4  attention shall be reported to the attending physician and the

  5  nurse registry.  The assessment shall become a part of the

  6  patient's file with the nurse registry and may be reviewed by

  7  the agency for Health Care Administration during their survey

  8  procedure.

  9         (d)  In order to refer for contract in private

10  residences a certified nursing assistant or any person

11  specified in s. 400.509(1), the nurse registry and such person

12  registered with the nurse registry must also be registered

13  under s. 400.509.  Any person registered as an independent

14  contractor with a nurse registry for the purpose of providing

15  services authorized under s. 400.509(1) on or before October

16  1, 1990, is exempt from registration under s. 400.509 so long

17  as such person remains continuously registered with that nurse

18  registry.

19         Section 11.  Subsections (1), (2), and (3) of section

20  400.509, Florida Statutes, are amended, present subsections

21  (4) and (5) of that section are amended and renumbered as

22  subsections (5) and (6), respectively, present subsections

23  (6), (7), (8), (9), (10), (11), (12), and (13) of that section

24  are renumbered as subsections (7), (8), (9), (10), (11), (12),

25  (13), and (14), respectively, and a new subsection (4) is

26  added to that section, to read:

27         400.509  Registration of particular service providers

28  exempt from licensure; certificate of registration; regulation

29  of registrants.--

30         (1)  Any organization person that provides domestic

31  maid services, sitter services, companion services, or

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  1  homemaker services and does not provide a home health service

  2  to a person is exempt from licensure under this part. However,

  3  any organization person that provides sitter services for

  4  adults, companion services, or homemaker services must

  5  register with the agency for Health Care Administration.

  6         (2)  Registration consists of annually filing with the

  7  agency for Health Care Administration, under oath, on forms

  8  provided by it, the following information:

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

10  security number of the individual, or the name and address of

11  the person, providing the service.

12         (a)(b)  If the registrant is a firm or partnership, the

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

14  every member.

15         (b)(c)  If the registrant is a corporation or

16  association, its name and address, the name, address, date of

17  birth, and social security number of each of its directors and

18  officers, and the name and address of each person having at

19  least a 5-percent 10-percent interest in the corporation or

20  association.

21         (c)(d)  The name, address, date of birth, and social

22  security number of each person employed by or under contract

23  with the organization.

24         (3)  The agency for Health Care Administration shall

25  charge a registration fee of $25 to be submitted with the

26  information required under subsection (2).

27         (4)  Each applicant for registration must comply with

28  the following requirements:

29         (a)  Upon receipt of a completed, signed, and dated

30  application, the agency shall require background screening, in

31  accordance with the level 1 standards for screening set forth

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  1  in chapter 435, of every individual who will have contact with

  2  the client. The agency shall require background screening of

  3  the managing employee or other similarly titled individual who

  4  is responsible for the operation of the entity, and of the

  5  financial officer or other similarly titled individual who is

  6  responsible for the financial operation of the entity,

  7  including billings for client services in accordance with the

  8  level 2 standards for background screening as set forth in

  9  chapter 435.

10         (b)  The agency may require background screening of any

11  other individual who is affiliated with the applicant if the

12  agency has a reasonable basis for believing that he or she has

13  been convicted of a crime or has committed any other offense

14  prohibited under the level 2 standards for screening set forth

15  in chapter 435.

16         (c)  Proof of compliance with the level 2 background

17  screening requirements of chapter 435 which has been submitted

18  within the previous 5 years in compliance with any other

19  healthcare or assisted living licensure requirements of this

20  state is acceptable in fulfillment of paragraph (a).

21         (d)  A provisional registration may be granted to an

22  applicant when each individual required by this section to

23  undergo background screening has met the standards for the

24  abuse-registry background check and the Department of Law

25  Enforcement background check but the agency has not yet

26  received background screening results from the Federal Bureau

27  of Investigation.  A standard registration may be granted to

28  the applicant upon the agency's receipt of a report of the

29  results of the Federal Bureau of Investigation background

30  screening for each individual required by this section to

31  undergo background screening which confirms that all standards

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  1  have been met, or upon the granting of a disqualification

  2  exemption by the agency as set forth in chapter 435.  Any

  3  other person who is required to undergo level 2 background

  4  screening may serve in his or her capacity pending the

  5  agency's receipt of the report from the Federal Bureau of

  6  Investigation.  However, the person may not continue to serve

  7  if the report indicates any violation of background screening

  8  standards and if a disqualification exemption has not been

  9  requested of and granted by the agency as set forth in chapter

10  435.

11         (e)  Each applicant must submit to the agency, with its

12  application, a description and explanation of any exclusions,

13  permanent suspensions, or terminations of the applicant from

14  the Medicare or Medicaid programs.  Proof of compliance with

15  the requirements for disclosure of ownership and control

16  interests under the Medicaid or Medicare programs may be

17  accepted in lieu of this submission.

18         (f)  Each applicant must submit to the agency a

19  description and explanation of any conviction of an offense

20  prohibited under the level 2 standards of chapter 435 which

21  was committed by a member of the board of directors of the

22  applicant, its officers, or any individual owning 5 percent or

23  more of the applicant.  This requirement does not apply to a

24  director of a not-for-profit corporation or organization who

25  serves solely in a voluntary capacity for the corporation or

26  organization, does not regularly take part in the day-to-day

27  operational decisions of the corporation or organization,

28  receives no remuneration for his or her services on the

29  corporation's or organization's board of directors, and has no

30  financial interest and no family members having a financial

31  interest in the corporation or organization, if the director

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  1  and the not-for-profit corporation or organization include in

  2  the application a statement affirming that the director's

  3  relationship to the corporation satisfies the requirements of

  4  this paragraph.

  5         (g)  A registration may not be granted to an applicant

  6  if the applicant or managing employee has been found guilty

  7  of, regardless of adjudication, or has entered a plea of nolo

  8  contendere or guilty to, any offense prohibited under the

  9  level 2 standards for screening set forth in chapter 435,

10  unless an exemption from disqualification has been granted by

11  the agency as set forth in chapter 435.

12         (h)  The agency may deny or revoke the registration of

13  any applicant who:

14         1.  Has falsely represented a material fact in the

15  application required by paragraph (e) or paragraph (f), or has

16  omitted any material fact from the application required by

17  paragraph (e) or paragraph (f); or

18         2.  Has been the subject of prior action under the

19  Medicaid or Medicare program as set forth in paragraph (e).

20         (i)  An application for licensure renewal must contain

21  the information required under paragraphs (e) and (f).

22         (5)(4)  Each registrant must obtain establish the

23  employment or contract history of persons who are employed by

24  or under contract with the organization and who will have

25  having contact at any time with patients or clients in their

26  homes by:

27         (a)  Requiring such persons employed or under contract

28  to submit an employment or contractual history to the

29  registrant; and

30         (b)  Verifying the employment or contractual history,

31  unless through diligent efforts such verification is not

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  1  possible.  The agency for Health Care Administration shall

  2  prescribe by rule the minimum requirements for establishing

  3  that diligent efforts have been made.

  4

  5  There is no monetary liability on the part of, and no cause of

  6  action for damages arises against, a former employer of a

  7  prospective employee of or prospective independent contractor

  8  with a registrant who reasonably and in good faith

  9  communicates his or her honest opinions about the former

10  employee's or contractor's job performance.  This subsection

11  does not affect the official immunity of an officer or

12  employee of a public corporation.

13         (6)(5)  On or before the first day on which services

14  are provided to a patient or client, any registrant under this

15  part must inform the patient or client and his or her

16  immediate family, if appropriate, of the right to report

17  abusive, neglectful, or exploitative practices.  The statewide

18  toll-free telephone number for the central abuse registry must

19  be provided to patients or clients in a manner that is clearly

20  legible and must include the words: "To report abuse, neglect,

21  or exploitation, please call toll-free ...(phone number)...."

22  Registrants must establish appropriate policies and procedures

23  for providing such notice to patients or clients.

24         Section 12.  Section 400.512, Florida Statutes, is

25  amended to read:

26         400.512  Screening of home health agency personnel;

27  nurse registry personnel; and sitters, companions, and

28  homemakers.--The agency for Health Care Administration shall

29  require employment or contract or screening as provided in

30  chapter 435, using the level 1 standards for screening set

31  forth in that chapter, for home health agency personnel;

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  1  persons referred for employment by nurse registries; and

  2  persons employed by sitter, companion, or homemaker services

  3  registered under s. 400.509.

  4         (1)  The agency for Health Care Administration may

  5  grant exemptions from disqualification from employment or

  6  contracting under this section as provided in s. 435.07.

  7         (2)  The administrator of each home health agency, the

  8  managing employee of each nurse registry, and the managing

  9  employee of each or sitter, companion, or homemaker service

10  registered under s. 400.509 must sign an affidavit annually,

11  under penalty of perjury, stating that all personnel hired,

12  contracted with, or registered on or after October 1, 1994

13  1989, who enter the home of a patient or client in the

14  capacity of their service capacity employment have been

15  screened and that its remaining personnel have worked for the

16  home health agency or registrant continuously since before

17  October 1, 1994 1989.

18         (3)  As a prerequisite to operating as a home health

19  agency, nurse registry, or sitter, companion, or homemaker

20  service under s. 400.509, the administrator or managing

21  employee, respectively, must submit to the agency his or her

22  for Health Care Administration their name and any other

23  information necessary to conduct a complete screening

24  according to this section.  The agency for Health Care

25  Administration shall submit the information to the Department

26  of Law Enforcement and the department's abuse hotline for

27  state processing.  The agency for Health Care Administration

28  shall review the record of the administrator or manager with

29  respect to the offenses specified in this section and shall

30  notify the owner of its findings.  If disposition information

31  is missing on a criminal record, the administrator or manager,

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  1  upon request of the agency for Health Care Administration,

  2  must obtain and supply within 30 days the missing disposition

  3  information to the agency for Health Care Administration.

  4  Failure to supply missing information within 30 days or to

  5  show reasonable efforts to obtain such information will result

  6  in automatic disqualification.

  7         (4)  Proof of compliance with the screening

  8  requirements of chapter 435 shall be accepted in lieu of the

  9  requirements of this section if the provided that such person

10  has been continuously employed or registered without a breach

11  in service that exceeds 180 days, the proof of compliance is

12  not more than 2 years old, and the person has been screened

13  through the central abuse registry and tracking system of the

14  department and by the Department of Law Enforcement. An

15  employer, nurse registry, or companion or homemaker service

16  registered under s. 400.509 shall directly provide proof of

17  compliance to another home health agency, nurse registry, or

18  companion or homemaker service registered under s. 400.509.

19  The recipient home health agency, nurse registry, or companion

20  or homemaker service registered under s. 400.509 may not

21  accept any proof of compliance directly from the person who

22  requires screening. Proof of compliance with the screening

23  requirements of this section shall be provided upon request to

24  the person screened by the home health agencies; nurse

25  registries; or sitter, companion, or homemaker services

26  registered under s. 400.509.

27         (5)  There is no monetary liability on the part of, and

28  no cause of action for damages arises against, a licensed home

29  health agency, licensed nurse registry, or sitter, companion,

30  or homemaker service registered under s. 400.509, that, upon

31  notice of a confirmed report of adult abuse, neglect, or

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  1  exploitation under paragraph (2)(b), terminates the employee

  2  or contractor against whom the report was issued, whether or

  3  not the employee or contractor has filed for an exemption with

  4  the agency in accordance with chapter 435 for Health Care

  5  Administration under subparagraph (3)(a)5. and whether or not

  6  the time for filing has expired.

  7         (6)  The costs of processing the statewide

  8  correspondence criminal records checks and the search of the

  9  department's central abuse hotline must be borne by the home

10  health agency; the nurse registry; or the sitter, companion,

11  or homemaker service registered under s. 400.509, or by the

12  person being screened, at the discretion of the home health

13  agency, nurse registry, or s. 400.509 registrant.

14         (7)  The Agency for Health Care Administration; the

15  home health agency; nurse registry; or sitter, companion, or

16  homemaker service registered under s. 400.509 may not use the

17  criminal records, juvenile records, or central abuse hotline

18  information of a person for any purpose other than determining

19  whether that person meets minimum standards of good moral

20  character for home health agency personnel.  The criminal

21  records, juvenile records, or central abuse hotline

22  information obtained by the Agency for Health Care

23  Administration; home health agency; nurse registry; or sitter,

24  companion, or homemaker service for determining the moral

25  character of such personnel are confidential and exempt from

26  the provisions of s. 119.07(1) and s. 24(a), Art. I of the

27  State Constitution.

28         (7)(8)(a)  It is a misdemeanor of the first degree,

29  punishable under s. 775.082 or s. 775.083, for any person

30  willfully, knowingly, or intentionally to:

31

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  1         1.  Fail, by false statement, misrepresentation,

  2  impersonation, or other fraudulent means, to disclose in any

  3  application for voluntary or paid employment a material fact

  4  used in making a determination as to such person's

  5  qualifications to be an employee under this section;

  6         2.  Operate or attempt to operate an entity licensed or

  7  registered under this part with persons who do not meet the

  8  minimum standards for good moral character as contained in

  9  this section; or

10         3.  Use information from the criminal records or

11  central abuse hotline obtained under this section for any

12  purpose other than screening that person for employment as

13  specified in this section or release such information to any

14  other person for any purpose other than screening for

15  employment under this section.

16         (b)  It is a felony of the third degree, punishable

17  under s. 775.082, s. 775.083, or s. 775.084, for any person

18  willfully, knowingly, or intentionally to use information from

19  the juvenile records of a person obtained under this section

20  for any purpose other than screening for employment under this

21  section.

22         Section 13.  Task Force on Home Health Services

23  Licensure Provisions.--There is created a task force composed

24  of representatives of the Agency for Health Care

25  Administration, the Department of Elderly Affairs, the

26  Department of Health, and Associated Home Health Industries to

27  review the provisions of part IV of chapter 400, Florida

28  Statutes, and recommend additional legislative revisions. The

29  review must address, at a minimum, the following issues:

30  whether Adult Abuse Registry screening should continue to be

31  mandated; whether individuals who provide home health services

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  1  should be exempted from all state regulatory oversight; and

  2  whether mandatory registration for organizations that provide

  3  companion and homemaker services should continue. A report

  4  must be submitted to the appropriate legislative committees by

  5  December 31, 1999.

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

  7  1999.

  8

  9            *****************************************

10                          SENATE SUMMARY

11    Revises licensing, screening, recordkeeping, liability
      insurance, and administrative fine requirements for home
12    health agencies. Creates the Task Force on Home Health
      Services Licensure Provisions to review the regulatory
13    requirements of part IV of chapter 400, F.S., and report
      recommendations to the Legislature.
14

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