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
15
16
17
18
19
20
21
22
23
24
25
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27
28
29
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31
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