House Bill hb1879

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    Florida House of Representatives - 2001                HB 1879

        By the Committee on Elder & Long-Term Care and
    Representative Green





  1                      A bill to be entitled

  2         An act relating to long-term care; amending s.

  3         400.0073, F.S., relating to state and local

  4         ombudsman council investigations; requiring

  5         ombudsman verification and reporting of nursing

  6         home staff on duty and the posting thereof;

  7         providing penalty for refusal of a nursing home

  8         or assisted living facility to allow entry to

  9         an ombudsman; amending s. 400.021, F.S.;

10         revising definitions; defining "controlling

11         interest" and "voluntary board member";

12         creating s. 400.0223, F.S.; requiring nursing

13         homes to allow electronic monitoring of

14         residents in their rooms; requiring posting of

15         notice; providing facility requirements;

16         providing penalties; amending ss. 400.023 and

17         400.429, F.S.; providing for civil actions to

18         enforce nursing home and assisted living

19         facility residents' rights; providing who may

20         pursue such actions; providing for attorney's

21         fees and costs; providing the burden of proof;

22         providing evidence of breach of duty; providing

23         certain liability; limiting period for

24         commencement of actions; providing definitions;

25         providing for claims involving death of the

26         resident; providing for punitive damages;

27         providing nonenforceability of judgments or

28         agreements concealing certain information;

29         requiring facility report of a judgment or

30         agreement to the Agency for Health Care

31         Administration within a specified period;

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  1         providing a penalty; providing agency

  2         rulemaking authority; providing applicability;

  3         creating s. 400.0235, F.S.; providing

  4         requirements of the presuit process; creating

  5         s. 400.0236, F.S.; providing for presuit

  6         screening; creating s. 400.0237, F.S.;

  7         providing for presuit notice, review, and

  8         investigation; specifying timeframes; creating

  9         ss. 400.0238 and 400.430, F.S.; providing for

10         voluntary binding arbitration; providing for

11         selection of an arbitration panel; providing

12         for compensation; providing obligations and

13         procedures; providing rulemaking authority of

14         the Division of Administrative Hearings;

15         providing for the right to jury trial and for

16         certain limitations on damages; providing

17         procedures; creating s. 400.0239, F.S.;

18         providing for binding arbitration to allocate

19         responsibility among defendants; providing

20         procedures; creating s. 400.024, F.S.;

21         providing for misarbitration; creating s.

22         400.0241, F.S.; providing for payment of an

23         arbitration award; providing for interest;

24         creating s. 400.0242, F.S.; providing for

25         appeal of an arbitration award or allocation of

26         financial responsibility; creating ss. 400.0245

27         and 400.455, F.S.; creating the "Nursing Home

28         Facility Whistleblower's Act" and the "Assisted

29         Living Facility Whistleblower's Act,"

30         respectively; prohibiting retaliatory actions

31         from a facility or independent contractor

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  1         against an employee for disclosure of certain

  2         information; providing legislative intent;

  3         providing definitions; specifying the nature of

  4         information, to whom disclosed, and persons

  5         protected; authorizing civil actions for

  6         violation; providing forms of relief; providing

  7         penalties; providing reward for information

  8         disclosed; requiring facilities to post notice

  9         of protections, rewards, and remedies;

10         providing defenses to certain actions;

11         protecting existing rights of employees;

12         amending s. 400.071, F.S.; revising

13         requirements and providing additional

14         requirements for application for a nursing home

15         license; amending s. 400.102, F.S.; providing

16         additional grounds for administrative or other

17         actions against a nursing home; amending s.

18         400.118, F.S.; requiring agency staff to verify

19         and report staff on duty at a nursing home;

20         providing requirements for resident

21         comprehensive assessment, plan of care, and

22         treatment and services; providing for a

23         resident's incapacity or refusal with regard to

24         the plan of care; creating s. 400.1183, F.S.;

25         requiring nursing homes to have a grievance

26         procedure for residents; providing

27         requirements; requiring recordkeeping and

28         reports to the agency; providing for agency

29         investigations; providing a penalty for

30         noncompliance; amending s. 400.121, F.S.;

31         revising a penalty for violations of pt. II of

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  1         ch. 400, F.S.; providing additional grounds for

  2         denial of a nursing home licensure application;

  3         providing for review of administrative

  4         proceedings challenging agency licensure

  5         enforcement actions; amending s. 400.141, F.S.;

  6         providing qualifications for nursing home

  7         medical directors and nursing personnel;

  8         requiring sufficient nursing staff; requiring a

  9         comprehensive resident assessment; requiring

10         daily charting of certain care delivered;

11         requiring report of management agreements;

12         requiring report of staff ratios, turnover, and

13         stability, and bed vacancies; creating s.

14         400.1413, F.S.; requiring nursing homes to

15         establish internal risk management and quality

16         assurance programs; providing requirements for

17         implementation; defining "adverse incident";

18         requiring reports to the agency; providing

19         agency access to facility records, review of

20         incidents and programs, and report to

21         regulatory boards; limiting liability of risk

22         managers; amending s. 400.1415, F.S.; providing

23         for administrative penalties or a moratorium on

24         admissions for a nursing home where alteration

25         of records has occurred; requiring reporting;

26         requiring referral of personnel for

27         disciplinary action; amending s. 400.19, F.S.;

28         providing for quarterly onsite review of

29         facilities with a conditional licensure status;

30         amending s. 400.191, F.S.; requiring facility

31         posting of the Florida Nursing Home Guide Watch

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  1         List; amending s. 400.211, F.S.; revising

  2         qualifications for temporary employment of

  3         nursing assistants; providing performance

  4         review and inservice training requirements for

  5         certified nursing assistants; amending s.

  6         400.23, F.S.; deleting obsolete language and

  7         references; deleting requirement for review of

  8         local emergency management plans; providing for

  9         agency rules relating to consumer satisfaction

10         surveys, posting of reports and records, and

11         quality assurance and risk management;

12         specifying minimum nursing home staffing

13         requirements; providing a moratorium on

14         admissions for certain failure to comply with

15         minimum staffing requirements; providing a

16         penalty; revising provisions relating to

17         deficient practices and classifications

18         thereof; revising penalties; requiring a

19         report; amending s. 400.241, F.S.; providing a

20         cross reference; providing a penalty; amending

21         s. 400.407, F.S.; correcting a cross reference;

22         amending s. 400.426, F.S.; requiring a daily

23         record of care of residents; providing for

24         access to and maintenance of such records;

25         amending ss. 400.428 and 400.431, F.S.;

26         revising requirement for notice of a resident's

27         relocation or termination from a facility;

28         providing a penalty; creating s. 400.449, F.S.;

29         providing penalties for altering, defacing, or

30         falsifying records of an assisted living

31         facility; amending s. 409.908, F.S.; revising

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  1         provisions relating to Medicaid reimbursement

  2         for long-term care; providing for direct care

  3         and indirect care subcomponents; providing for

  4         cost reporting; amending s. 415.1111, F.S.;

  5         providing that provisions for civil actions

  6         under ch. 415, F.S., shall not apply to civil

  7         actions under pts. II and III of ch. 400, F.S.;

  8         amending s. 430.708, F.S.; deleting a provision

  9         relating to certificate-of-need calculations

10         for nursing home beds pursuant to Medicaid

11         community diversion pilot projects; amending s.

12         430.709, F.S.; providing requirements for

13         contracts for independent evaluation of

14         long-term care community diversion projects;

15         transferring responsibility from the Department

16         of Elderly Affairs to the agency; requiring

17         reports to the agency and Legislature; amending

18         s. 435.04, F.S.; deleting obsolete language;

19         amending s. 464.201, F.S.; revising definition

20         of "approved training program" for nursing

21         assistants; amending s. 464.2085, F.S.;

22         directing the Council on Certified Nursing

23         Assistants to develop advanced competency

24         designations for certified nursing assistants;

25         amending ss. 101.655, 397.405, and 400.0069,

26         F.S.; correcting cross references; requiring

27         the Auditor General develop a standard chart of

28         accounts for Medicaid long-term care provider

29         cost reporting; requiring implementation by the

30         agency by a specified date; requiring the

31         agency to amend the Medicaid Title XIX

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  1         Long-Term Care Reimbursement Plan to include

  2         specified provisions; directing the Board of

  3         Nursing to provide for commendation of certain

  4         professional nurses; requiring wage and benefit

  5         increases for nursing home direct care staff;

  6         requiring a report; reenacting s. 400.021(11),

  7         F.S., relating to the definition of "nursing

  8         home bed"; reenacting s. 400.0225, F.S.,

  9         relating to consumer satisfaction surveys;

10         reenacting s. 400.0255(3) and (8), F.S.,

11         relating to discharge or transfer of residents;

12         reenacting s. 400.141(4) and (5), F.S.,

13         relating to the repackaging of residents'

14         medication and access to other health-related

15         services; reenacting s. 400.191(2) and (6),

16         F.S., relating to requirements for providing

17         information to consumers; reenacting s.

18         400.23(5), F.S., relating to rules for

19         standards of care for persons under 21 years of

20         age residing in nursing home facilities;

21         reenacting s. 400.235(3)(a), (4), (5)(e), and

22         (9), F.S., and reenacting the repeal of s.

23         400.235(5)(h), F.S., 1999, relating to

24         designation under the nursing home Gold Seal

25         Program; reenacting s. 400.962(1), F.S.,

26         relating to requirement for licensure under pt.

27         XI of ch. 400, F.S.; reenacting s. 397.405(2),

28         F.S., relating to a cross reference; reenacting

29         s. 10 of ch. 2000-350, Laws of Florida,

30         relating to requirements for a study of the use

31         of automated medication dispensing machines in

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  1         nursing facilities and for demonstration

  2         projects and a report; providing legislative

  3         intent; providing appropriations; providing

  4         effective dates.

  5

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

  7

  8         Section 1.  Present subsection (6) of section 400.0073,

  9  Florida Statutes, is amended, present subsections (5) and (6)

10  are renumbered as subsections (7) and (8), respectively, and

11  new subsections (5) and (6) are added to said section, to

12  read:

13         400.0073  State and local ombudsman council

14  investigations.--

15         (5)  Each time a member of an ombudsman council is in a

16  nursing home facility to investigate a resident's complaint or

17  to conduct an inspection, the ombudsman shall verify, record,

18  and report to the Office of the State Long-Term Care Ombudsman

19  the number of certified nursing assistants, the number of

20  licensed practical nurses, and the number of registered nurses

21  on duty, the date and time of the visit, and the facility

22  census at that time. The Office of the State Long-Term Care

23  Ombudsman shall maintain a record of each such ombudsman

24  report in a database, which record shall be reported to the

25  Legislature quarterly beginning on October 1, 2001.

26         (6)  Each time a member of an ombudsman council is in a

27  nursing home facility, the ombudsman shall determine whether

28  the facility is in compliance with s. 400.23(3)(a) relating to

29  daily posting of staff on duty. The ombudsman shall

30  immediately report to the agency failure by the nursing home

31  to comply with this requirement.

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  1         (8)(6)  An inspection may not be accomplished by

  2  forcible entry. Refusal of a long-term care facility to allow

  3  entry of any ombudsman council member constitutes a violation

  4  of part II, part III, or part VII of this chapter. Refusal to

  5  allow entry to any ombudsman council member constitutes a

  6  class I deficiency under part II or part III of this chapter.

  7         Section 2.  Section 400.021, Florida Statutes, is

  8  amended to read:

  9         400.021  Definitions.--When used in this part, unless

10  the context otherwise requires, the term:

11         (1)  "Administrator" means the person licensed under

12  part II of chapter 468 individual who has the general

13  administrative charge of a facility.

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

15  Administration, which is the licensing agency under this part.

16         (3)  "Bed reservation policy" means the number of

17  consecutive days and the number of days per year that a

18  resident may leave the nursing home facility for overnight

19  therapeutic visits with family or friends or for

20  hospitalization for an acute condition before the licensee may

21  discharge the resident due to his or her absence from the

22  facility.

23         (4)  "Board" means the Board of Nursing Home

24  Administrators.

25         (5)  "Controlling interest" means:

26         (a)  The applicant for licensure or a licensee;

27         (b)  A person or entity that serves as an officer of,

28  is on the board of directors of, or has a 5-percent or greater

29  ownership interest in the management company or other entity,

30  related or unrelated, which the applicant or licensee may

31  contract with to operate the facility; or

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  1         (c)  A person or entity that serves as an officer of,

  2  is on the board of directors of, or has a 5-percent or greater

  3  ownership interest in the applicant or licensee.

  4

  5  The term does not include a voluntary board member.

  6         (6)(5)  "Custodial service" means care for a person

  7  which entails observation of diet and sleeping habits and

  8  maintenance of a watchfulness over the general health, safety,

  9  and well-being of the aged or infirm.

10         (7)(6)  "Department" means the Department of Children

11  and Family Services.

12         (8)(7)  "Facility" means any institution, building,

13  residence, private home, or other place, whether operated for

14  profit or not, including a place operated by a county or

15  municipality, which undertakes through its ownership or

16  management to provide for a period exceeding 24-hour nursing

17  care, personal care, or custodial care for three or more

18  persons not related to the owner or manager by blood or

19  marriage, who by reason of illness, physical infirmity, or

20  advanced age require such services, but does not include any

21  place providing care and treatment primarily for the acutely

22  ill. A facility offering services for fewer than three persons

23  is within the meaning of this definition if it holds itself

24  out to the public to be an establishment which regularly

25  provides such services.

26         (9)(8)  "Geriatric outpatient clinic" means a site for

27  providing outpatient health care to persons 60 years of age or

28  older, which is staffed by a registered nurse or a physician

29  assistant.

30         (10)(9)  "Geriatric patient" means any patient who is

31  60 years of age or older.

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  1         (11)(10)  "Local ombudsman council" means a local

  2  long-term care ombudsman council established pursuant to s.

  3  400.0069, located within the Older Americans Act planning and

  4  service areas.

  5         (12)  "Nursing home facility" means any facility which

  6  provides nursing services as defined in part I of chapter 464

  7  and which is licensed according to this part.

  8         (13)(11)  "Nursing home bed" or "bed" means an

  9  accommodation which is ready for immediate occupancy, or is

10  capable of being made ready for occupancy within 48 hours,

11  excluding provision of staffing; and which conforms to minimum

12  space requirements, including the availability of appropriate

13  equipment and furnishings within the 48 hours, as specified by

14  rule of the agency, for the provision of services specified in

15  this part to a single resident.

16         (14)(13)  "Nursing service" means such services or acts

17  as may be rendered, directly or indirectly, to and in behalf

18  of a person by individuals licensed under part I of chapter

19  464 as defined in s. 464.003.

20         (15)(14)  "Planning and service area" means the

21  geographic area in which the Older Americans Act programs are

22  administered and services are delivered by the Department of

23  Elderly Affairs.

24         (16)(15)  "Respite care" means admission to a nursing

25  home for the purpose of providing a short period of rest or

26  relief or emergency alternative care for the primary caregiver

27  of an individual receiving care at home who, without

28  home-based care, would otherwise require institutional care.

29         (17)(16)  "Resident care plan" means a written plan

30  developed, maintained, and reviewed not less than quarterly by

31  a registered nurse, with participation from other facility

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  1  staff and the resident or his or her designee or legal

  2  representative, which includes a comprehensive assessment of

  3  the needs of an individual resident, a listing of services

  4  provided within or outside the facility to meet those needs,

  5  and an explanation of service goals.

  6         (18)(17)  "Resident designee" means a person, other

  7  than the owner, administrator, or employee of the facility,

  8  designated in writing by a resident or a resident's guardian,

  9  if the resident is adjudicated incompetent, to be the

10  resident's representative for a specific, limited purpose.

11         (19)(18)  "State ombudsman council" means the State

12  Long-Term Care Ombudsman Council established pursuant to s.

13  400.0067.

14         (20)  "Voluntary board member" means a director of a

15  not-for-profit corporation or organization who serves solely

16  in a voluntary capacity for the corporation or organization,

17  receives no remuneration for his or her services on the board

18  of directors, and has no financial interest in the corporation

19  or organization. A person shall be recognized by the agency as

20  a voluntary board member upon submission of a statement, on a

21  form provided by the agency, affirming that the requirements

22  of this subsection are satisfied by the director and the

23  not-for-profit corporation or organization.

24         Section 3.  Effective January 1, 2002, section

25  400.0223, Florida Statutes, is created to read:

26         400.0223  Resident's right to have electronic

27  monitoring devices; requirements; penalties.--

28         (1)  A nursing home facility shall permit a resident or

29  legal representative of the resident to monitor the resident

30  through the use of electronic monitoring devices in the

31  resident's room. For the purposes of this section, "electronic

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  1  monitoring device" includes a video surveillance camera, an

  2  audio device, a video telephone, and an Internet video

  3  surveillance device.

  4         (2)  A nursing home facility shall require the resident

  5  or legal representative to post a notice on the door of the

  6  resident's room where an electronic monitoring device is in

  7  use. The notice must state that the room is being monitored by

  8  an electronic monitoring device.

  9         (3)  Monitoring conducted under this section shall:

10         (a)  Be noncompulsory and at the election of the

11  resident or legal representative of the resident.

12         (b)  Be funded by the resident or legal representative

13  of the resident.

14         (c)  Protect the privacy rights of other residents and

15  visitors to the nursing home facility to the extent reasonably

16  possible.

17         (4)  It shall be a violation of this part for a nursing

18  home facility to refuse to admit an individual to the facility

19  or to remove a resident from the facility because of a request

20  for electronic monitoring.

21         (5)  A nursing home facility shall make reasonable

22  physical accommodation for electronic monitoring by providing

23  a reasonably secure place to mount the electronic monitoring

24  device and access to power sources.

25         (6)  A nursing home facility shall inform a resident or

26  legal representative of the resident's right to electronic

27  monitoring.

28         (7)  A nursing home facility may request a resident or

29  legal representative to conduct electronic monitoring within

30  plain view.

31

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  1         (8)  The facility administrator may require a resident

  2  or legal representative who wishes to install an electronic

  3  monitoring device to make the request in writing.

  4         (9)  Subject to the Florida Rules of Evidence, a tape

  5  created through the use of electronic monitoring shall be

  6  admissible in either a civil or criminal action brought in a

  7  Florida court.

  8         (10)(a)  A licensee who operates a nursing home

  9  facility in violation of this section is subject to a fine not

10  exceeding $500 per violation per day pursuant to s. 400.102.

11         (b)  A person who willfully and without the consent of

12  a resident or legal representative hampers, obstructs, tampers

13  with, or destroys an electronic monitoring device or tape

14  commits a misdemeanor of the first degree, punishable as

15  provided in s. 775.082 or s. 775.083.

16         Section 4.  Effective October 1, 2001, section 400.023,

17  Florida Statutes, is amended to read:

18         (Substantial rewording of section. See

19         s. 400.023, F.S., for present text.)

20         400.023  Civil actions to enforce nursing home

21  residents' rights.--

22         (1)(a)  Sections 400.023-400.0242 provide the exclusive

23  remedy for any civil action against a nursing home licensee,

24  facility owner, facility administrator, or facility staff for

25  recovery of damages from personal injury to or death of a

26  nursing home resident arising out of negligence or deprivation

27  of rights specified in s. 400.022. This exclusivity applies to

28  and includes any claim against an employee, agent, or other

29  person for whose actions the licensee is alleged to be

30  vicariously liable and to any management company, parent

31  corporation, subsidiary, lessor, or other person alleged to be

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  1  directly liable to the resident or vicariously liable for the

  2  actions of the licensee or its agent.

  3         (b)  However, ss. 400.023-400.0242 do not prohibit a

  4  resident or a resident's legal guardian from pursuing any

  5  administrative remedy or injunctive relief available to a

  6  resident as a result of a deprivation of the rights specified

  7  in s. 400.022, whether or not the deprivation of rights

  8  resulted in personal injury to, or the death of, the resident.

  9  In any case where there is a deprivation of rights that does

10  not involve personal injury or death, including any claim for

11  injunctive relief or an administrative remedy, the prevailing

12  party shall be entitled to recover reasonable attorney's fees,

13  not to exceed $25,000, and costs from the nonprevailing party;

14  however, the joinder of a claim under this paragraph with a

15  claim under paragraph (a) shall not be the basis for an award

16  of fees or costs in such claim under paragraph (a). Except as

17  otherwise set forth in this paragraph, it is the intent of the

18  Legislature that this provision for attorney's fees be

19  interpreted in a manner consistent with federal case law

20  involving an action under Title VII of the Civil Rights Act.

21         (c)  In addition to the remedies provided in ss.

22  400.023-400.0242, a resident, a resident's legal guardian, or

23  the personal representative of the estate of a deceased

24  resident may pursue an action under s. 415.1111. In addition,

25  a resident or a resident's legal guardian shall be entitled to

26  pursue a claim for damages or injunctive relief for those

27  violations of s. 400.022 that do not result in personal injury

28  or death.

29         (2)  A claim pursuant to ss. 400.023-400.0242 may be

30  brought by the resident or his or her legal guardian, by a

31  person or organization acting on behalf of a resident with the

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  1  consent of the resident or his or her guardian, or, if the

  2  resident has died, the personal representative of the estate

  3  of the deceased resident.

  4         (3)  In any claim brought pursuant to ss.

  5  400.023-400.0242, the claimant has the burden of proving by a

  6  preponderance of the evidence that:

  7         (a)  Each defendant had an established duty to the

  8  resident;

  9         (b)  Each defendant breached that duty;

10         (c)  The breach of that duty is the proximate cause of

11  the personal injury to, or the death of, the resident, or the

12  proximate cause of the deprivation of the resident's rights

13  specified in s. 400.022; and

14         (d)  The proximate cause of the personal injury, death,

15  or deprivation of the resident's rights resulted in damages.

16         (4)  For purposes of ss. 400.023-400.0242, a licensee

17  breaches its established duty to the resident when it fails to

18  provide a standard of care that a reasonably prudent nursing

19  home would provide under the same or similar circumstances. A

20  deprivation of the rights specified in s. 400.022 or in any

21  other standard or guidelines specified in this part or in any

22  applicable administrative standard or guidelines of this state

23  or a federal regulatory agency shall be evidence of a breach

24  of duty by the licensee.

25         (5)  A licensee shall not be liable for the medical

26  negligence of any physician rendering care or treatment to the

27  resident except for the services of a medical director as

28  required in this part.  Nothing in this subsection shall be

29  construed to protect a licensee from liability for failure to

30  provide a resident with appropriate observation, assessment,

31

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  1  nursing diagnosis, planning, intervention, and evaluation of

  2  care by nursing staff.

  3         (6)  An action for damages brought under ss.

  4  400.023-400.0242 must be commenced within 2 years after the

  5  date on which the incident giving rise to the action occurred

  6  or within 2 years after the date on which the incident is

  7  discovered, or should have been discovered with the exercise

  8  of due diligence. However, the action may not be commenced

  9  later than 4 years after the date of the incident or

10  occurrence out of which the cause of action accrued. In any

11  action covered by this subsection in which it is shown that

12  fraud, concealment, or intentional misrepresentation of fact

13  prevented the discovery of the injury, the period of

14  limitation is extended forward 2 years from the time that the

15  injury is discovered, or should have been discovered with the

16  exercise of due diligence, but such period may not in any

17  event exceed 7 years after the date that the incident giving

18  rise to the injury occurred.

19         (7)  As used in ss. 400.023-400.0242, the term:

20         (a)  "Claimant" means any person who is entitled to

21  recover damages under this part.

22         (b)  "Licensee" means the legal entity identified in

23  the application for licensure under this part which entity is

24  the licensed operator of the facility.

25         (c)  "Medical expert" means a person duly and regularly

26  engaged in the practice of his or her profession who holds a

27  health care professional degree from a university or college

28  and has had special professional training and experience, or a

29  person who possesses special health care knowledge or skill,

30  concerning the subject upon which he or she is called to

31  testify or provide an opinion.

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  1         (d)  "Resident" means a person who occupies a licensed

  2  bed in a facility licensed under this part.

  3         (8)  Sections 768.16-768.26 apply to a claim in which

  4  the resident has died as a result of the facility's breach of

  5  an established duty to the resident. In addition to any other

  6  damages, the personal representative may recover on behalf of

  7  the estate pursuant to ss. 768.16-768.26. The personal

  8  representative may also recover on behalf of the estate

  9  noneconomic damages for the resident's pain and suffering from

10  the time of injury until the time of death. The limitations

11  set forth in s. 768.21(8) do not apply to a claim maintained

12  under this section where a resident has died as a result of

13  the nursing home's breach of a duty to the resident.

14         (9)  For the purpose of this section, punitive damages

15  may be awarded for conduct which is willful, wanton, gross or

16  flagrant, reckless, or consciously indifferent to the rights

17  of the resident.

18         (10)  Discovery of financial information for the

19  purpose of determining the value of punitive damages may not

20  be had unless the plaintiff shows the court by proffer or

21  evidence in the record that a reasonable basis exists to

22  support a claim for punitive damages.

23         (11)  In addition to any other standards for punitive

24  damages, any award of punitive damages must be reasonable in

25  light of the actual harm suffered by the resident and the

26  egregiousness of the conduct that caused the actual harm to

27  the resident.

28         (12)  Any portion of an order, judgment, arbitration

29  decision, mediation agreement, or other type of agreement,

30  contract, or settlement that has the purpose or effect of

31  concealing information relating to the settlement or

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  1  resolution of any claim or action brought pursuant to this

  2  part is void, contrary to public policy, and may not be

  3  enforced. No court shall enter an order or judgment that has

  4  the purpose or effect of concealing any information pertaining

  5  to the resolution or settlement of any claim or action brought

  6  pursuant to ss. 400.023-400.0242. Any person or governmental

  7  entity has standing to contest an order, judgment, arbitration

  8  decision, mediation agreement, or other type of agreement,

  9  contract, or settlement that violates this subsection. A

10  contest pursuant to this subsection may be brought by a motion

11  or an action for a declaratory judgment filed in the circuit

12  court of the circuit where the violation of this subsection

13  occurred.

14         (13)  The defendant must provide to the agency a copy

15  of any resolution of a claim or civil action brought pursuant

16  to ss. 400.023-400.0242 within 90 days after such resolution,

17  including, but not limited to, any final judgment, arbitration

18  decision, order, mediation agreement, or settlement. Failure

19  to provide the copy to the agency shall result in a fine of

20  $500 for each day it is overdue. The agency shall develop

21  forms and adopt rules necessary to administer this subsection.

22         Section 5.  Subsections (1) through (11) of section

23  400.023, Florida Statutes, as amended by this act, shall apply

24  to causes of action accruing on or after October 1, 2001.

25  Subsections (12) and (13) of section 400.023, Florida

26  Statutes, as amended by this act, shall apply to causes of

27  action in existence on October 1, 2001.

28         Section 6.  Effective October 1, 2001, and applicable

29  to causes of action accruing on or after that date, section

30  400.0235, Florida Statutes, is created to read:

31

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  1         400.0235  Requirements of the presuit process.--Before

  2  filing an action in circuit court under this part, the

  3  claimant must engage in the presuit screening process

  4  prescribed in s. 400.0236. If the claim meets the requirements

  5  of s. 400.0236, the claimant must notify each potential

  6  defendant of the claimant's intent to initiate litigation

  7  under this part, at which time the claimant and each potential

  8  defendant must engage in the presuit investigation process

  9  prescribed in s. 400.0237. Upon completion of the presuit

10  investigation process, either party may offer to engage in

11  binding arbitration as described in s. 400.0238. If the

12  parties do not engage in binding arbitration, the claimant may

13  file an action in circuit court and the provisions of s.

14  400.0238 shall apply at trial.

15         Section 7.  Effective October 1, 2001, and applicable

16  to causes of action accruing on or after that date, section

17  400.0236, Florida Statutes, is created to read:

18         400.0236  Presuit screening.--Before issuing a

19  notification of intent to initiate litigation under s.

20  400.0237, the claimant must engage in presuit screening to

21  ascertain that there are reasonable grounds for believing that

22  a defendant violated the provisions of s. 400.022. If the

23  claim involves personal injury to, or death of, the resident,

24  the claimant must obtain a verified written medical opinion

25  from a medical expert which provides corroboration of

26  reasonable grounds to initiate litigation under ss.

27  400.023-400.0242.

28         Section 8.  Effective October 1, 2001, and applicable

29  to causes of action accruing on or after that date, section

30  400.0237, Florida Statutes, is created to read:

31         400.0237  Presuit investigation.--

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  1         (1)  Upon completing the presuit requirements in s.

  2  400.0236, the claimant shall notify each prospective defendant

  3  by certified mail, return receipt requested, of the claimant's

  4  intent to initiate litigation. If the claim involves personal

  5  injury to, or death of, the resident, the notice of intent to

  6  initiate litigation must contain the verified written medical

  7  opinion described in s. 400.0236. Upon receipt of the

  8  claimant's notice of intent to initiate litigation, the

  9  defendant, the defendant's insurer, or the defendant's

10  self-insurer must conduct a review to determine the liability

11  of the defendant. The review must be completed within 90 days

12  after receipt of the notice to initiate litigation and the

13  suit may not be filed until at least 90 days after the date

14  the defendant receives notice.

15         (2)  The notice of intent to initiate litigation must

16  be served during the time limits set forth in s. 400.023(6);

17  however, during the 90-day period the statute of limitations

18  is tolled as to all potential defendants and, upon written

19  stipulation by the parties, the 90-day period may be extended,

20  and the statute of limitations is tolled during any such

21  extension. Upon completion of the 90-day period, or upon

22  receiving notice of termination of negotiations during an

23  extended period, the claimant has 60 days or the remainder of

24  the period of the statute of limitations, whichever is

25  greater, within which to file suit.

26         (3)  Each defendant, and each insurer or self-insurer

27  of each defendant, must have a procedure for promptly

28  investigating, reviewing, and evaluating a claim during the

29  90-day period. If the defendant rejects the claim and the

30  claim involves personal injury to, or death of, the resident,

31  corroboration of lack of reasonable grounds for litigation

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  1  under ss. 400.023-400.0242 must be provided by submitting a

  2  verified written medical opinion from a medical expert at the

  3  time the response rejecting the claim is mailed.

  4         (4)  During the 90-day investigation period, each party

  5  shall provide to the other party reasonable access to

  6  information within its possession or control in order to

  7  facilitate evaluation of the claim. Such access shall be

  8  provided without formal discovery, pursuant to s.

  9  766.106(5)-(9), and failure to provide such information is

10  grounds for dismissal of any applicable claim or defense

11  ultimately asserted.

12         Section 9.  Effective October 1, 2001, and applicable

13  to causes of action accruing on or after that date, section

14  400.0238, Florida Statutes, is created to read:

15         400.0238  Voluntary binding arbitration.--

16         (1)(a)  Upon the completion of presuit investigation

17  with preliminary reasonable grounds for a claim intact, the

18  parties may elect to have damages determined by an arbitration

19  panel.  Such election may be initiated by either party by

20  serving a request for voluntary binding arbitration of damages

21  within 90 days after service of the complaint upon the

22  defendant.  The evidentiary standards for voluntary binding

23  arbitration as authorized herein shall be as provided in ss.

24  120.569(2)(g) and 120.57(1)(c).

25         (b)  Upon receipt of a party's request for such

26  arbitration, the opposing party may accept the offer of

27  voluntary binding arbitration within 30 days.  However, in no

28  event shall the defendant be required to respond to the

29  request for arbitration sooner than 90 days after service of

30  the complaint.  Such acceptance within the time period

31

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  1  provided by this paragraph shall be a binding commitment to

  2  comply with the decision of the arbitration panel.

  3         (c)  The arbitration panel shall be composed of three

  4  arbitrators, one selected by the claimant, one selected by the

  5  defendant, and one an administrative law judge furnished by

  6  the Division of Administrative Hearings who shall serve as the

  7  chief arbitrator.  In the event of multiple plaintiffs or

  8  multiple defendants, the arbitrator selected by the side with

  9  multiple parties shall be the choice of those parties.  If the

10  multiple parties cannot reach agreement as to their

11  arbitrator, each of the multiple parties shall submit a

12  nominee, and the director of the Division of Administrative

13  Hearings shall appoint the arbitrator from among such

14  nominees.

15         (d)  The arbitrators shall be independent of all

16  parties, witnesses, and legal counsel, and no officer,

17  director, affiliate, subsidiary, or employee of a party,

18  witness, or legal counsel may serve as an arbitrator in the

19  proceeding.

20         (e)  The rate of compensation for arbitrators other

21  than the administrative law judge shall be set by the chief

22  judge of the appropriate circuit court by schedule or as

23  agreed by the parties.  In setting the schedule, the chief

24  judge shall consider the prevailing rates charged for the

25  delivery of professional services in the community.

26         (f)  Arbitration pursuant to this section shall

27  preclude recourse to any other remedy by the claimant against

28  any participating defendant, and shall be undertaken with the

29  understanding that:

30         1.  Net economic damages shall be awardable, including,

31  but not limited to, past and future medical expenses and 80

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  1  percent of wage loss and loss of earning capacity, offset by

  2  any collateral source payments.

  3         2.  Noneconomic damages shall be limited to a maximum

  4  of $500,000 per incident.

  5         3.  Damages for future economic losses shall be awarded

  6  to be paid by periodic payments pursuant to s. 766.202(8) and

  7  shall be offset by future collateral source payments.

  8         4.  Punitive damages may be awarded by the arbitration

  9  panel for conduct which is willful, wanton, gross or flagrant,

10  reckless, or consciously indifferent to the rights of the

11  resident. Upon such finding, the judgment for the total amount

12  of punitive damages awarded to a claimant may not exceed three

13  times the amount of compensatory damages awarded to each

14  person entitled thereto by the arbitrators. Any award of

15  punitive damages shall be equally divided between the claimant

16  and the Quality Care Improvement Fund and awarded pursuant to

17  paragraphs (3)(b)-(e).

18         5.  The defendant shall be responsible for the payment

19  of interest on all accrued damages with respect to which

20  interest would be awarded at trial.

21         6.  The defendant shall pay the claimant's reasonable

22  attorney's fees and costs, as determined by the arbitration

23  panel, but in no event more than 15 percent of the award,

24  reduced to present value.

25         7.  The defendant shall pay all the costs of the

26  arbitration proceeding and the fees of all the arbitrators

27  other than the administrative law judge.

28         8.  Each defendant who submits to arbitration under

29  this section shall be jointly and severally liable for all

30  damages assessed pursuant to this section.

31

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  1         9.  The defendant's obligation to pay the claimant's

  2  damages shall be for the purpose of arbitration under this

  3  section only.  A defendant's or claimant's offer to arbitrate

  4  shall not be used in evidence or in argument during any

  5  subsequent litigation of the claim following the rejection

  6  thereof. Once arbitration has been selected by the parties, it

  7  shall be with the understanding and agreement that the

  8  defendants do not contest liability, and the issue to be

  9  determined in this regard shall be the amount of compensatory

10  damages to be awarded to the claimant. The defendant may fully

11  contest liability regarding punitive damages and shall not be

12  deemed to have admitted liability for, or the amount of, any

13  punitive damages.

14         10.  The fact of making or accepting an offer to

15  arbitrate shall not be admissible as evidence of liability in

16  any collateral or subsequent proceeding on the claim.

17         11.  Any offer by a claimant to arbitrate must be made

18  to each defendant against whom the claimant has made a claim.

19  Any offer by a defendant to arbitrate must be made to each

20  claimant who has joined in the litigation.  A defendant who

21  rejects a claimant's offer to arbitrate shall be subject to

22  the provisions of paragraph (2)(c). A claimant who rejects a

23  defendant's offer to arbitrate shall be subject to the

24  provisions of paragraph (2)(d).

25         12.  The hearing shall be conducted by all of the

26  arbitrators, but a majority may determine any question of fact

27  and render a final decision.  The chief arbitrator shall

28  decide all evidentiary matters.

29

30  The provisions of this paragraph shall not preclude settlement

31  at any time by mutual agreement of the parties.

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  1         (g)  Any issue between the defendant and the

  2  defendant's insurer or self-insurer as to who shall control

  3  the defense of the claim and any responsibility for payment of

  4  an arbitration award shall be determined under existing

  5  principles of law; provided that the insurer or self-insurer

  6  shall not offer to arbitrate or accept a claimant's offer to

  7  arbitrate without the written consent of the defendant.

  8         (h)  The Division of Administrative Hearings is

  9  authorized to promulgate rules to effect the orderly and

10  efficient processing of the arbitration procedures of this

11  section.

12         (i)  Rules promulgated by the Division of

13  Administrative Hearings pursuant to this section, s. 120.54,

14  or s. 120.65 may authorize any reasonable sanctions except

15  contempt for violation of the rules of the division or failure

16  to comply with a reasonable order issued by an administrative

17  law judge, which is not under judicial review.

18         (2)  The following provisions shall govern when

19  voluntary binding arbitration is not offered or accepted:

20         (a)  A proceeding for voluntary binding arbitration is

21  an alternative to judicial proceedings once agreed to by the

22  parties. If not offered or accepted, however, the provisions

23  of paragraph (b) shall apply.

24         (b)  If neither party requests voluntary binding

25  arbitration, the claim shall proceed in the judicial process.

26  In such judicial process, the provisions of s. 768.79 shall

27  apply.

28         (c)  If the defendant refuses a claimant's offer of

29  voluntary binding arbitration under this section:

30         1.  The claim shall proceed in the judicial process

31  without limitation upon damages.

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  1         2.  The claimant's award shall be reduced by any

  2  damages recovered by the claimant from arbitrating

  3  codefendants following arbitration.

  4         (d)  If the claimant rejects a defendant's offer to

  5  enter voluntary binding arbitration under this section:

  6         1.  The claim shall proceed in the judicial process

  7  without limitation upon damages.

  8         2.  The claimant's award shall be reduced by any

  9  damages recovered by the claimant from arbitrating

10  codefendants following arbitration.

11         3.  Notwithstanding any other law to the contrary,

12  punitive damages may not exceed three times the amount of

13  compensatory damages awarded to each person entitled thereto

14  by the trier of fact and the amount shall be divided equally

15  between the claimant and the Quality of Long-Term Care

16  Facility Improvement Trust Fund, in accordance with the

17  following provisions:

18         a.  The clerk of the court shall transmit a copy of the

19  jury verdict to the State Treasurer by certified mail. In the

20  final judgment the court shall order the percentages of the

21  award, payable as provided herein.

22         b.  A settlement agreement entered into between the

23  original parties to the action after a verdict has been

24  returned must provide a proportionate share payable to the

25  Quality of Long-Term Care Facility Improvement Trust Fund

26  specified herein. For purposes of this subsection, a

27  proportionate share is a 50-percent share of that percentage

28  of the settlement amount which the punitive damages portion of

29  the verdict bore to the total of the compensatory and punitive

30  damages in the verdict.

31

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  1         c.  The Department of Banking and Finance shall collect

  2  or cause to be collected all payments due the state under this

  3  section. Such payments are made to the Comptroller and

  4  deposited in the appropriate fund specified in this

  5  subsection.

  6         d.  If the full amount of punitive damages awarded

  7  cannot be collected, the claimant and the other recipient

  8  designated pursuant to this subsection are each entitled to a

  9  proportionate share of the punitive damages collected.

10         (3)(a)1.  In the event that neither the claimant nor

11  the defendant request arbitration under this section, then

12  notwithstanding any other provision of law to the contrary, in

13  any actions arising under this part and involving the award of

14  punitive damages, the judgment for the total amount of

15  punitive damages awarded to a claimant may not exceed three

16  times the amount of compensatory damages awarded to each

17  person entitled thereto by the trier of fact, except as

18  provided in subparagraph 2. This paragraph does not apply to

19  any class action.

20         2.  If any award for punitive damages exceeds the

21  limitation specified in subparagraph 1., the award is presumed

22  to be excessive and the defendant is entitled to remittitur of

23  the amount in excess of the limitation unless the claimant

24  demonstrates to the court by clear and convincing evidence

25  that the award is not excessive in light of the facts and

26  circumstances that were presented to the trier of fact. The

27  court shall give great weight as a mitigating factor to the

28  infrequency or lack of severity of prior claims against the

29  defendant.

30         3.  The jury may not be instructed or informed as to

31  the provisions of this subsection.

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  1         (b)  The amount of punitive damages awarded to each

  2  claimant shall be equally divided between the claimant and the

  3  Quality of Long-Term Care Facility Improvement Trust Fund, in

  4  accordance with the following:

  5         1.  The clerk of the court shall transmit a copy of the

  6  jury verdict to the State Treasurer by certified mail. In the

  7  final judgment the court shall order the percentages of the

  8  award, payable as provided herein.

  9         2.  A settlement agreement entered into between the

10  original parties to the action after a verdict has been

11  returned must provide a proportionate share payable to the

12  fund specified herein. Such proportionate share shall be

13  determined by prorating the amount of the settlement between

14  compensatory and punitive damages in the same ratio as the

15  respective portions of the damages awarded in the verdict.

16  That portion of the prorated punitive damages that exceeds

17  three times the prorated compensatory damages shall be the

18  amount of the proportionate share to be divided as provided

19  herein.

20         3.  The Department of Banking and Finance shall collect

21  or cause to be collected all payments due the state under this

22  section. Such payments shall be made to the Comptroller and

23  deposited in the appropriate fund specified in this

24  subsection.

25         4.  If the full amount of punitive damages awarded

26  cannot be collected, the claimant and the other recipient

27  designated pursuant to this subsection are each entitled to a

28  proportional share of the punitive damages collected.

29         Section 10.  Effective October 1, 2001, and applicable

30  to causes of action accruing on or after that date, section

31  400.0239, Florida Statutes, is created to read:

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  1         400.0239  Arbitration to allocate responsibility.--

  2         (1)  This section applies when more than one defendant

  3  has participated in voluntary binding arbitration pursuant to

  4  s. 400.0238.

  5         (2)  Within 20 days after the determination of damages

  6  by the arbitration panel in the first arbitration proceeding,

  7  those defendants who have agreed to voluntary binding

  8  arbitration shall submit any dispute among them regarding the

  9  apportionment of financial responsibility to a separate

10  binding arbitration proceeding. Such proceeding shall be with

11  a panel of three arbitrators, which panel shall consist of the

12  chief arbitrator who presided in the first arbitration

13  proceeding, who shall serve as the chief arbitrator, and two

14  arbitrators appointed by the defendants. If the defendants

15  cannot agree on their selection of arbitrators within 20 days

16  after the determination of damages by the arbitration panel in

17  the first arbitration proceeding, selection of the arbitrators

18  shall be in accordance with chapter 682.

19         (3)  The chief arbitrator shall convene the arbitrators

20  for the purpose of determining allocation of responsibility

21  among multiple defendants within 65 days after the

22  determination of damages by the arbitration panel in the first

23  arbitration proceeding.

24         (4)  The arbitration panel shall allocate financial

25  responsibility among all defendants named in the notice of

26  intent to initiate litigation, regardless of whether the

27  defendant has submitted to arbitration. The defendants in the

28  arbitration proceeding shall pay their proportionate share of

29  the economic and noneconomic damages awarded by the

30  arbitration panel. All defendants in the arbitration

31  proceeding shall be jointly and severally liable for any

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  1  damages assessed in arbitration. The determination of the

  2  percentage of fault of any defendant not in the arbitration

  3  proceeding is not binding against the plaintiff or that

  4  defendant, and is not admissible in any subsequent legal

  5  proceeding.

  6         (5)  Payment by the defendants of the damages awarded

  7  by the arbitration panel in the first arbitration proceeding

  8  shall extinguish those defendants' liability to the claimant

  9  and shall also extinguish those defendants' liability for

10  contribution to any defendants who did not participate in

11  arbitration.

12         (6)  Any defendant paying damages assessed under this

13  section or s. 400.0238 shall have an action for contribution

14  against any nonarbitrating person whose negligence contributed

15  to the injury.

16         Section 11.  Effective October 1, 2001, and applicable

17  to causes of action accruing on or after that date, section

18  400.024, Florida Statutes, is created to read:

19         400.024  Misarbitration.--

20         (1)  At any time during the course of voluntary binding

21  arbitration of a claim under s. 400.0238, the chief arbitrator

22  on the arbitration panel, if he or she determines that

23  agreement cannot be reached, may dissolve the arbitration

24  panel and appoint two new arbitrators from lists of three to

25  five names provided by each party to the arbitration. Not more

26  than one arbitrator shall be appointed from the list provided

27  by any party.

28         (2)  Upon appointment of the new arbitrators,

29  arbitration shall proceed at the direction of the chief

30  arbitrator in accordance with ss. 400.0238-400.0242.

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  1         (3)  At any time after the allocation arbitration

  2  hearing under s. 400.0239 has concluded, the chief arbitrator

  3  on the arbitration panel may dissolve the arbitration panel

  4  and declare the proceedings concluded if he or she determines

  5  that agreement cannot be reached.

  6         Section 12.  Effective October 1, 2001, and applicable

  7  to causes of action accruing on or after that date, section

  8  400.0241, Florida Statutes, is created to read:

  9         400.0241  Payment of arbitration award.--

10         (1)  Within 20 days after the determination of damages

11  by the arbitration panel pursuant to s. 400.0238, the

12  defendant shall:

13         (a)  Pay the arbitration award, including interest at

14  the legal rate, to the claimant; or

15         (b)  Submit any dispute among multiple defendants to

16  arbitration as provided in s. 400.0239.

17         (2)  Commencing 90 days after the award rendered in the

18  arbitration procedure under s. 400.0238, such award shall

19  accrue interest at the rate of 18 percent per year.

20         Section 13.  Effective October 1, 2001, and applicable

21  to causes of action accruing on or after that date, section

22  400.0242, Florida Statutes, is created to read:

23         400.0242  Appeal of arbitration award.--

24         (1)  An arbitration award and an allocation of

25  financial responsibility are final agency action for purposes

26  of s. 120.68. Any appeal must be filed in the district court

27  of appeal for the district in which the arbitration took

28  place, is limited to review of the record, and must otherwise

29  proceed in accordance with s. 120.68. The amount of an

30  arbitration award or an order allocating financial

31  responsibility, the evidence in support of either, and the

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  1  procedure by which either is determined are subject to

  2  judicial scrutiny only in a proceeding instituted under this

  3  subsection.

  4         (2)  An appeal does not operate to stay an arbitration

  5  award, and an arbitration panel, member of an arbitration

  6  panel, or circuit court shall not stay an arbitration award.

  7  The district court of appeal may order a stay to prevent

  8  manifest injustice, but the court shall not abrogate the

  9  provisions of s. 400.0241(2).

10         (3)  Any party to an arbitration proceeding may enforce

11  an arbitration award or an allocation of financial

12  responsibility by filing a petition in the circuit court for

13  the circuit in which the arbitration took place. A petition

14  may not be granted unless the time for appeal has expired. If

15  an appeal has been taken, a petition may not be granted with

16  respect to an arbitration award or an allocation of financial

17  responsibility which has been stayed.

18         (4)  If the petitioner establishes the authenticity of

19  the arbitration award or the allocation of financial

20  responsibility, shows that the time for appeal has expired,

21  and demonstrates that no stay is in place, the court shall

22  enter such orders and judgments as are required to carry out

23  the terms of the arbitration award or allocation of financial

24  responsibility. Such orders are enforceable by the contempt

25  powers of the court, and execution will issue, upon the

26  request of a party, for such judgments.

27         Section 14.  Section 400.0245, Florida Statutes, is

28  created to read:

29         400.0245  Adverse action against employee for

30  disclosing information of specified nature prohibited;

31  employee remedy and relief.--

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  1         (1)  SHORT TITLE.--This section may be cited as the

  2  "Nursing Home Facility Whistleblower's Act."

  3         (2)  LEGISLATIVE INTENT.--It is the intent of the

  4  Legislature to prevent nursing home facilities or independent

  5  contractors from taking retaliatory action against an employee

  6  who reports to an appropriate person or agency violations of

  7  law on the part of a facility or independent contractor that

  8  create a substantial and specific danger to a nursing home

  9  facility resident's health, safety, or welfare. It is further

10  the intent of the Legislature to prevent nursing home

11  facilities or independent contractors from taking retaliatory

12  action against any person who discloses information to an

13  appropriate agency alleging improper use of or gross waste of

14  governmental funds, or any other abuse or gross neglect of

15  duty on the part of a nursing home facility.

16         (3)  DEFINITIONS.--As used in this section, unless

17  otherwise specified, the following words or terms shall have

18  the meanings indicated:

19         (a)  "Adverse personnel action" means the discharge,

20  suspension, transfer, or demotion of any employee or the

21  withholding of bonuses, the reduction in salary or benefits,

22  or any other adverse action taken against an employee within

23  the terms and conditions of employment by a nursing home

24  facility or independent contractor.

25         (b)  "Agency" means any state, regional, county, local,

26  or municipal government entity, whether executive, judicial,

27  or legislative; or any official, officer, department,

28  division, bureau, commission, authority, or political

29  subdivision thereof.

30         (c)  "Employee" means a person who performs services

31  for, and under the control and direction of, or contracts

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  1  with, a nursing home facility or independent contractor for

  2  wages or other remuneration.

  3         (d)  "Gross mismanagement" means a continuous pattern

  4  of managerial abuses, wrongful or arbitrary and capricious

  5  actions, or fraudulent or criminal conduct which may have a

  6  substantial adverse economic impact.

  7         (e)  "Independent contractor" means a person who is

  8  engaged in any business and enters into a contract with a

  9  nursing home facility.

10         (4)  ACTIONS PROHIBITED.--

11         (a)  A nursing home facility or an independent

12  contractor shall not dismiss, discipline, or take any other

13  adverse personnel action against an employee for disclosing

14  information pursuant to the provisions of this section.

15         (b)  A nursing home facility or an independent

16  contractor shall not take any adverse action that affects the

17  rights or interests of a person in retaliation for the

18  person's disclosure of information under this section.

19         (c)  The provisions of this subsection shall not be

20  applicable when an employee or person discloses information

21  known by the employee or person to be false.

22         (5)  NATURE OF INFORMATION DISCLOSED.--The information

23  disclosed under this section must include:

24         (a)  Any violation or suspected violation of any

25  federal, state, or local law, rule, or regulation committed by

26  an employee or agent of a nursing home facility or independent

27  contractor which creates and presents a substantial and

28  specific danger to the nursing home facility resident's

29  health, safety, or welfare.

30         (b)  Any act or suspected act of gross mismanagement,

31  malfeasance, misfeasance, gross waste of public funds, or

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  1  gross neglect of duty committed by an employee or agent of a

  2  nursing home facility or independent contractor.

  3         (6)  TO WHOM INFORMATION DISCLOSED.--The information

  4  disclosed under this section must be disclosed to any agency

  5  or Federal Government entity or person designated in s.

  6  400.022(1)(c) having the authority to investigate, police,

  7  manage, or otherwise remedy the violation or act.

  8         (7)  EMPLOYEES AND PERSONS PROTECTED.--This section

  9  protects employees and persons who disclose information on

10  their own initiative in a written and signed complaint; who

11  are requested to participate in an investigation, hearing, or

12  other inquiry conducted by any agency or Federal Government

13  entity; who refuse to participate in any adverse action

14  prohibited by this section; or who initiate a complaint

15  through any appropriate complaint hotline. No remedy or other

16  protection under this section applies to any person who has

17  committed or intentionally participated in committing the

18  violation or suspected violation for which protection under

19  this section is being sought.

20         (8)  REMEDIES.--Any person protected by this section

21  may bring a civil action in any court of competent

22  jurisdiction against a nursing home facility for any action

23  prohibited by this section.

24         (9)  RELIEF.--In any action brought under this section,

25  the relief may include the following:

26         (a)  Reinstatement of the employee to the same position

27  held before the adverse action was commenced or to an

28  equivalent position, or reasonable front pay as alternative

29  relief.

30         (b)  Reinstatement of the employee's full fringe

31  benefits and seniority rights, as appropriate.

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  1         (c)  Compensation, if appropriate, for lost wages, lost

  2  benefits, or other lost remuneration caused by the adverse

  3  action.

  4         (d)  Payment of reasonable costs, including attorney's

  5  fees, to a substantially prevailing employee, or to the

  6  prevailing employer if the employee filed a frivolous action

  7  in bad faith.

  8         (e)  Issuance of an injunction, if appropriate, by a

  9  court of competent jurisdiction.

10         (f)  Temporary reinstatement to the employee's former

11  position or to an equivalent position, pending the final

12  outcome on the complaint, if an employee complains of being

13  discharged in retaliation for a protected disclosure and if a

14  court of competent jurisdiction determines that the disclosure

15  was not made in bad faith or for a wrongful purpose or

16  occurred after a nursing home facility's or independent

17  contractor's initiation of a personnel action against the

18  employee which includes documentation of the employee's

19  violation of a disciplinary standard or performance

20  deficiency.

21         (10)  PENALTIES.--

22         (a)  A nursing home facility determined by the agency

23  to have committed an action prohibited under subsection (4) is

24  subject to the penalties set forth in s. 400.23(8)(a).

25         (b)  In addition, a violation of subsection (4)

26  constitutes a felony of the third degree, punishable as

27  provided in s. 775.082 and s. 775.083.

28         (11)  REWARD.--Any person protected by this section who

29  discloses information as provided in paragraph (5)(b) related

30  to gross waste of public funds shall be awarded $10,000, which

31  sum shall be paid from the Resident Protection Trust Fund.

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  1         (12)  POSTING OF NOTICE.--Each facility licensed under

  2  this part shall prominently post notice of the protections,

  3  rewards, and remedies provided under this section, along with

  4  the telephone numbers for making reports, and shall provide

  5  such notice to all employees of the facility within 30 days

  6  after the effective date of this section and to all new

  7  employees hired subsequent to that date.

  8         (13)  DEFENSES.--It shall be an affirmative defense to

  9  any action brought pursuant to this section that the adverse

10  action was predicated upon grounds other than, and would have

11  been taken absent, the employee's or person's exercise of

12  rights protected by this section.

13         (14)  EXISTING RIGHTS.--This section does not diminish

14  the rights, privileges, or remedies of an employee under any

15  other law or rule or under any collective bargaining agreement

16  or employment contract.

17         Section 15.  Subsections (2) and (5) of section

18  400.071, Florida Statutes, are amended, subsections (9) and

19  (10) are renumbered as subsections (10) and (11),

20  respectively, and a new subsection (9) is added to said

21  section, to read:

22         400.071  Application for license.--

23         (2)  The application shall be under oath and shall

24  contain the following:

25         (a)  The name, address, and social security number of

26  the applicant if an individual; if the applicant is a firm,

27  partnership, or association, its name, address, and employer

28  identification number (EIN), and the name and address of any

29  controlling interest every member; if the applicant is a

30  corporation, its name, address, and employer identification

31  number (EIN), and the name and address of its director and

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  1  officers and of each person having at least a 5 percent

  2  interest in the corporation; and the name by which the

  3  facility is to be known.

  4         (b)  The name of any person whose name is required on

  5  the application under the provisions of paragraph (a) and who

  6  owns at least a 10 percent interest in any professional

  7  service, firm, association, partnership, or corporation

  8  providing goods, leases, or services to the facility for which

  9  the application is made, and the name and address of the

10  professional service, firm, association, partnership, or

11  corporation in which such interest is held.

12         (c)  The location of the facility for which a license

13  is sought and an indication, as in the original application,

14  that such location conforms to the local zoning ordinances.

15         (d)  The name of the person or persons under whose

16  management or supervision the facility will be conducted and

17  the name of its licensed administrator.

18         (e)  A signed affidavit disclosing any financial or

19  ownership interest that a person or entity described in

20  paragraph (a) or paragraph (d) has held in the last 5 years in

21  any entity licensed by this state or any other state to

22  provide health or residential care, which entity has closed

23  voluntarily or involuntarily, and the reason for the closure;

24  has filed bankruptcy; has had a receiver appointed or a

25  license denied, suspended, or revoked; or has had an

26  injunction issued against it which was initiated by a

27  regulatory agency.

28         (f)(e)  The total number of beds and the total number

29  of Medicare and Medicaid certified beds.

30         (g)(f)  Information relating to the number, experience,

31  and training of the employees of the facility and of the moral

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  1  character of the applicant and employees which the agency

  2  requires by rule, including the name and address of any

  3  nursing home with which the applicant or employees have been

  4  affiliated through ownership or employment within 5 years of

  5  the date of the application for a license and the record of

  6  any criminal convictions involving the applicant and any

  7  criminal convictions involving an employee if known by the

  8  applicant after inquiring of the employee.  The applicant must

  9  demonstrate that sufficient numbers of qualified staff, by

10  training or experience, will be employed to properly care for

11  the type and number of residents who will reside in the

12  facility.

13         (h)(g)  Copies of any settlement entered into by the

14  applicant or any civil verdict or judgment involving the

15  applicant, rendered within the 10 years preceding the

16  application, relating to medical negligence, violation of

17  residents' rights, or wrongful death.  As a condition of

18  licensure, the licensee agrees to provide to the agency copies

19  of any new settlement, verdict, or judgment involving the

20  applicant, relating to such matters, within 30 days after

21  filing with the clerk of the court.  The information required

22  in this paragraph shall be maintained in the facility's

23  licensure file and in an agency database which is available as

24  a public record.

25         (5)  The applicant shall furnish satisfactory proof of

26  financial ability to operate and conduct the nursing home in

27  accordance with the requirements of this part and all rules

28  adopted under this part, and the agency shall establish

29  standards for this purpose, including standards for the

30  information required to be reported pursuant to paragraph

31  (2)(e). The agency also shall establish documentation

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  1  requirements, to be completed by each applicant, that show

  2  anticipated facility revenues and expenditures, the basis for

  3  financing the anticipated cash-flow requirements of the

  4  facility, and an applicant's access to contingency financing.

  5         (9)  Effective on the effective date of this section,

  6  as a condition of licensure, each facility must establish and

  7  submit with its application a plan for quality assurance and

  8  for conducting risk management.

  9         Section 16.  Section 400.102, Florida Statutes, is

10  amended to read:

11         400.102  Action by agency against licensee; grounds.--

12         (1)  Any of the following conditions shall be grounds

13  for action by the agency against a licensee:

14         (a)  An intentional or negligent act materially

15  affecting the health or safety of residents of the facility;

16         (b)  Misappropriation or conversion of the property of

17  a resident of the facility;

18         (c)  Failure to follow the criteria and procedures

19  provided under part I of chapter 394 relating to the

20  transportation, voluntary admission, and involuntary

21  examination of a nursing home resident;

22         (d)  Violation of provisions of this part or rules

23  adopted under this part; or

24         (e)  Fraudulent altering, defacing, or falsifying any

25  medical or other nursing home record, or causing or procuring

26  any of these offenses to be committed;

27         (f)  A demonstrated pattern of deficient practice.

28  Deficiencies found during the first 6 months after a change of

29  ownership to an unrelated party shall not be counted toward a

30  pattern of deficient practice under this paragraph. The agency

31  may adopt rules to implement this paragraph.

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  1         (g)  Failure to pay any outstanding fines assessed by

  2  final agency order or fines assessed by the Health Care

  3  Financing Administration pursuant to requirements for federal

  4  Medicare certification;

  5         (h)  Exclusion from the Medicare or Medicaid programs;

  6  or

  7         (i)(e)  Any act constituting a ground upon which

  8  application for a license may be denied.

  9         (2)  If the agency has reasonable belief that any of

10  such conditions exist, it shall take the following action:

11         (a)  In the case of an applicant for original

12  licensure, denial action as provided in s. 400.121.

13         (b)  In the case of an applicant for relicensure or a

14  current licensee, administrative action as provided in s.

15  400.121 or injunctive action as authorized by s. 400.125.

16         (c)  In the case of a facility operating without a

17  license, injunctive action as authorized in s. 400.125.

18

19  Agency action for violations of this section shall not

20  preclude agency action under s. 400.23(8).

21         Section 17.  Subsections (4) through (10) are added to

22  section 400.118, Florida Statutes, to read:

23         400.118  Quality assurance; early warning system;

24  monitoring; rapid response teams; verification of nursing

25  staff; provision of care and services.--

26         (4)  Each time a staff person of the agency conducting

27  an inspection, an investigation of a complaint, an unannounced

28  facility review, or a monitoring visit under this part is in a

29  nursing home facility, the staff person shall verify, record,

30  and report to the agency the number of certified nursing

31  assistants, the number of licensed practical nurses, and the

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  1  number of registered nurses on duty. The staff person shall

  2  report the date and time of the visit, and the facility census

  3  at that time, to the agency.

  4         (5)  Each resident must receive and the facility must

  5  provide the necessary care and services to attain or maintain

  6  the highest practicable physical, mental, and psychosocial

  7  well-being, in accordance with the comprehensive assessment

  8  and plan of care.

  9         (a)  Activities of daily living.--Based on the

10  comprehensive assessment of a resident, the facility must

11  ensure that:

12         1.  The resident's abilities in activities of daily

13  living do not diminish unless circumstances of the

14  individual's clinical condition demonstrate that diminution

15  was unavoidable. These abilities include the resident's

16  ability to bathe, dress, and groom; transfer and ambulate;

17  toilet; eat; and use speech, language, or other functional

18  communication systems.

19         2.  The resident is given the appropriate treatment and

20  services to maintain or improve his or her abilities specified

21  in subparagraph 1.

22         3.  A resident who is unable to carry out activities of

23  daily living receives the necessary services to maintain good

24  nutrition, grooming, and personal and oral hygiene.

25         (b)  Vision and hearing.--To ensure that residents

26  receive proper treatment and assistive devices to maintain

27  vision and hearing abilities, the facility must, if necessary,

28  assist the resident in making appointments with, and by

29  arranging for transportation to and from, the office of a

30  practitioner specializing in the treatment of vision or

31  hearing impairment or the office of a professional

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  1  specializing in the provision of vision or hearing assistive

  2  devices.

  3         (c)  Pressure sores.--Based on the comprehensive

  4  assessment of a resident, the facility must ensure that a

  5  resident who enters the facility without pressure sores does

  6  not develop pressure sores unless the individual's clinical

  7  condition demonstrates that they were unavoidable; and a

  8  resident having pressure sores receives necessary treatment

  9  and services to promote healing, prevent infection, and

10  prevent new sores from developing.

11         (d)  Urinary incontinence.--Based on the comprehensive

12  assessment of a resident, the facility must ensure that a

13  resident who enters the facility without an indwelling

14  catheter is not catheterized unless the resident's clinical

15  condition demonstrates that catheterization was necessary; and

16  a resident who is incontinent of bladder receives appropriate

17  treatment and services to prevent urinary tract infections and

18  to restore as much normal bladder function as possible.

19         (e)  Range of motion.--Based on the comprehensive

20  assessment of a resident, the facility must ensure that a

21  resident who enters the facility without a limited range of

22  motion does not experience reduction in range of motion unless

23  the resident's clinical condition demonstrates that a

24  reduction in range of motion is unavoidable; and a resident

25  with a limited range of motion receives appropriate treatment

26  and services to increase range of motion or to prevent further

27  decrease in range of motion.

28         (f)  Mental and psychosocial functioning.--Based on the

29  comprehensive assessment of a resident, the facility must

30  ensure that a resident who displays mental or psychosocial

31  adjustment difficulty receives appropriate treatment and

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  1  services to correct the assessed problem; and a resident whose

  2  assessment did not reveal a mental or psychosocial adjustment

  3  difficulty does not display a pattern of decreased social

  4  interaction or increased withdrawn, angry, or depressive

  5  behaviors, unless the resident's clinical condition

  6  demonstrates that such a pattern was unavoidable.

  7         (g)  Nasogastric tubes.--Based on the comprehensive

  8  assessment of a resident, the facility must ensure that a

  9  resident who has been able to eat enough alone or with

10  assistance is not fed by a nasogastric tube unless the

11  resident's clinical condition demonstrates that use of a

12  nasogastric or gastrostomy tube was unavoidable; and the

13  resident receives the appropriate treatment and services to

14  prevent aspiration pneumonia, diarrhea, vomiting, dehydration,

15  metabolic abnormalities, and nasal-pharyngeal ulcers and to

16  restore, if possible, normal eating skills.

17         (h)  Accidents.--The facility must ensure that the

18  residents' environment remains as free of accident hazards as

19  is possible and that each resident receives adequate

20  supervision and assistance devices to prevent accidents.

21         (i)  Nutrition.--Based on the comprehensive assessment

22  of a resident, the facility must ensure that a resident

23  maintains acceptable parameters of nutritional status, such as

24  body weight and protein levels, unless the resident's clinical

25  condition demonstrates that this is not possible, and receives

26  a therapeutic diet when there is a nutritional problem.

27         (j)  Hydration.--The facility must provide each

28  resident with sufficient fluid intake to maintain proper

29  hydration and health.

30         (k)  Special needs.--The facility must ensure that

31  residents receive proper treatment and care for the following

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  1  special services: injections; parenteral and enteral fluids;

  2  colostomy, ureterostomy, or ileostomy care; tracheostomy care;

  3  tracheal suctioning; respiratory care; foot care; and

  4  prostheses.

  5         (l)  Drug regimen.--

  6         1.  The facility must ensure that a resident's drug

  7  regimen is free from unnecessary drugs. An unnecessary drug is

  8  any drug when used in excessive doses, including duplicate

  9  drug therapy; or for excessive duration; or without adequate

10  monitoring; or without adequate indications for its use; or in

11  the presence of adverse consequences which indicate the dose

12  should be reduced or discontinued; or any combination of such

13  uses.

14         2.  Based on a comprehensive assessment of a resident,

15  the facility must ensure that residents who have not used

16  antipsychotic drugs are not given these drugs unless

17  antipsychotic drug therapy is necessary to treat a specific

18  condition as diagnosed and documented in the clinical record;

19  and residents who use antipsychotic drugs receive gradual dose

20  reductions, and behavioral interventions, unless clinically

21  contraindicated, in an effort to discontinue these drugs.

22         3.  The facility must ensure that a resident's drug

23  regimen is free of any significant medication errors. The

24  facility must ensure that the facility medication error rate

25  is less than 5 percent.

26         (6)  A resident who has not been adjudged incapacitated

27  shall be assisted to participate in the planning of all

28  medical treatment and in the development of the plan of care.

29         (7)  A resident who refuses medication, treatment, or

30  other components of the plan of care shall be advised of the

31

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  1  potential consequences of such actions. The resident's refusal

  2  shall be documented in the medical record.

  3         (8)  The legal representative of a resident who has

  4  been adjudged incapacitated and unable to make decisions about

  5  medication, treatment, or other components of the plan of care

  6  must be informed in writing of the resident's proposed plan of

  7  care and the consequences of refusal of medication, treatment,

  8  or other components of the plan of care.

  9         (9)  If a resident refuses medication, treatment, or

10  other components of the plan of care, the nursing home

11  facility must continue to provide other services that the

12  resident agrees to, in accordance with the resident's plan of

13  care.

14         (10)  All refusals of medication, treatment, or other

15  components of the plan of care by the resident or his or her

16  legal representative shall be acknowledged in writing and

17  signed by the resident's physician.

18         Section 18.  Section 400.1183, Florida Statutes, is

19  created to read:

20         400.1183 Resident grievance and complaint procedures.--

21         (1)  Every nursing home must have a grievance procedure

22  available to its residents and their families. The grievance

23  procedure must include:

24         (a)  An explanation of how to pursue redress of a

25  grievance or complaint.

26         (b)  The names, job titles, and telephone numbers of

27  the employees responsible for implementing the organization's

28  grievance procedure. The list must include the address and the

29  toll-free telephone numbers of the ombudsman and the agency.

30         (c)  A simple description of the process through which

31  a resident may, at any time, contact the toll-free telephone

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  1  hotline of the ombudsman or the agency to report the

  2  unresolved grievance.

  3         (d)  A procedure for providing assistance to residents

  4  who cannot prepare a written grievance or complaint without

  5  help.

  6         (2)  Each facility shall maintain records of all

  7  grievances and shall report annually to the agency the total

  8  number of grievances handled, a categorization of the cases

  9  underlying the grievances, and the final disposition of the

10  grievances.

11         (3)  Each facility must respond to the complaint or

12  grievance within a reasonable time after its submission.

13         (4)  The agency shall investigate any complaint or

14  grievance at any time.

15         (5)  The agency shall impose an administrative fine, in

16  accordance with s. 400.121, against a nursing home facility

17  for noncompliance with this section.

18         Section 19.  Subsections (2) and (5) of section

19  400.121, Florida Statutes, are amended, and subsections (7)

20  and (8) are added to said section, to read:

21         400.121  Denial, suspension, revocation of license;

22  moratorium on admissions; administrative fines; procedure;

23  order to increase staffing.--

24         (1)  The agency may deny, revoke, or suspend a license

25  or impose an administrative fine, not to exceed $500 per

26  violation per day, for a violation of any provision of s.

27  400.102(1).  All hearings shall be held within the county in

28  which the licensee or applicant operates or applies for a

29  license to operate a facility as defined herein.

30         (2)  Except as provided in s. 400.23(8), a $500 fine

31  shall be imposed for each violation of this part The agency,

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  1  as a part of any final order issued by it under this part, may

  2  impose such fine as it deems proper, except that such fine may

  3  not exceed $500 for each violation. Each day a violation of

  4  this part occurs constitutes a separate violation and is

  5  subject to a separate fine, but in no event may any fine

  6  aggregate more than $5,000.  A fine may be levied pursuant to

  7  this section in lieu of and notwithstanding the provisions of

  8  s. 400.23. Fines paid by any nursing home facility licensee

  9  under this subsection shall be deposited in the Resident

10  Protection Trust Fund and expended as provided in s. 400.063.

11         (5)  An action taken by the agency to deny, suspend, or

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

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

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

15  resident of the facility, shall be heard by the Division of

16  Administrative Hearings of the Department of Management

17  Services within 120 days after receipt of the facility's

18  request for a hearing, unless the time limitation is waived by

19  both parties.  The administrative law judge must render a

20  decision within 30 days after receipt of a proposed

21  recommended order.  This subsection does not modify the

22  requirement that an administrative hearing be held within 90

23  days after a license is suspended under paragraph (4)(b).

24         (7)  The agency may deny an application based on the

25  disclosure of information required in s. 400.07(2)(e) if such

26  information demonstrates that any controlling interest has

27  been the subject of an adverse action by a regulatory

28  authority of any jurisdiction, including its agencies or

29  subdivisions, for a violation that would constitute a

30  violation under Florida law. The licensing authority's

31  acceptance of a relinquishment of licensure, stipulation,

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  1  consent order, or other settlement, offered in response to or

  2  in anticipation of the filing of charges against the license,

  3  shall be construed as an adverse action against the license.

  4  If the adverse action solely involves the management company,

  5  the applicant or licensee shall be given 30 days to replace

  6  the management company with a company that has not been the

  7  subject of an adverse action as described in this subsection.

  8  The agency may adopt rules as necessary to implement this

  9  subsection.

10         (8)  Administrative proceedings challenging agency

11  licensure enforcement actions shall be reviewed on the basis

12  of the facts and conditions that resulted in the initial

13  agency action.

14         Section 20.  Section 400.141, Florida Statutes, is

15  amended to read:

16         400.141  Administration and management of nursing home

17  facilities.--Every licensed facility shall comply with all

18  applicable standards and rules of the agency and shall:

19         (1)  Be under the administrative direction and charge

20  of a licensed administrator.

21         (2)  Appoint a medical director licensed pursuant to

22  chapter 458 or chapter 459 who meets the criteria established

23  by the Florida Medical Directors Association adopted by agency

24  rule. The agency may establish by rule more specific criteria

25  for the appointment of a medical director.

26         (3)  Have available the regular, consultative, and

27  emergency services of physicians licensed by the state.

28         (4)  Have sufficient nursing staff, on a 24-hour basis,

29  to provide nursing and related services to residents in order

30  to maintain the highest practicable physical, mental, and

31

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  1  psychosocial well-being of each resident, as determined by

  2  resident assessments and plans of care.

  3         (5)  Conduct initially and periodically a

  4  comprehensive, accurate, standardized, reproducible assessment

  5  of each resident's functional capacity and care plans in

  6  conformance with the federal regulations contained in Title 42

  7  of the Code of Federal Regulation. Each assessment must be

  8  conducted or coordinated by a registered nurse who signs and

  9  certifies the accuracy of the assessment.

10         (6)  Employ registered nurses and licensed practical

11  nurses who are responsible for the proper practice of

12  professional nursing and practical nursing, respectively, in

13  accordance with chapter 464.

14         (7)  Designate as the director of nursing or the

15  assistant director of nursing persons who have had a least 12

16  months of experience in nursing service supervision or

17  administration, and education or work experience beyond the

18  minimum required for licensure in rehabilitative or geriatric

19  nursing, before assuming responsibility for the total nursing

20  service program in a nursing home.

21         (8)  Designate as the charge nurse on duty a person who

22  has the ability to recognize and respond to significant

23  changes in a resident's condition.

24         (9)(4)  Provide for resident use of a community

25  pharmacy as specified in s. 400.022(1)(q). Any other law to

26  the contrary notwithstanding, a registered pharmacist licensed

27  in Florida, that is under contract with a facility licensed

28  under this chapter, shall repackage a nursing facility

29  resident's bulk prescription medication which has been

30  packaged by another pharmacist licensed in any state in the

31  United States into a unit dose system compatible with the

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  1  system used by the nursing facility, if the pharmacist is

  2  requested to offer such service. To be eligible for

  3  repackaging, a resident or the resident's spouse must receive

  4  prescription medication benefits provided through a former

  5  employer as part of his or her retirement benefits a qualified

  6  pension plan as specified in s. 4972 of the Internal Revenue

  7  Code, a federal retirement program as specified under 5 C.F.R.

  8  s. 831, or a long-term care policy as defined in s.

  9  627.9404(1). A pharmacist who correctly repackages and

10  relabels the medication and the nursing facility which

11  correctly administers such repackaged medication under the

12  provisions of this subsection shall not be held liable in any

13  civil or administrative action arising from the repackaging.

14  In order to be eligible for the repackaging, a nursing

15  facility resident for whom the medication is to be repackaged

16  shall sign an informed consent form provided by the facility

17  which includes an explanation of the repackaging process and

18  which notifies the resident of the immunities from liability

19  provided herein. A pharmacist who repackages and relabels

20  prescription medications, as authorized under this subsection,

21  may charge a reasonable fee for costs resulting from the

22  implementation of this provision.

23         (10)(5)  Provide for the access of the facility

24  residents to dental and other health-related services,

25  recreational services, rehabilitative services, and social

26  work services appropriate to their needs and conditions and

27  not directly furnished by the licensee.  When a geriatric

28  outpatient nurse clinic is conducted in accordance with rules

29  adopted by the agency, outpatients attending such clinic shall

30  not be counted as part of the general resident population of

31  the nursing home facility, nor shall the nursing staff of the

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  1  geriatric outpatient clinic be counted as part of the nursing

  2  staff of the facility, until the outpatient clinic load

  3  exceeds 15 a day.

  4         (11)(6)  Be allowed and encouraged by the agency to

  5  provide other needed services under certain conditions. If the

  6  facility has a standard licensure status, and has had no class

  7  I or class II deficiencies during the past 2 years or has been

  8  awarded a Gold Seal under the program established in s.

  9  400.235, it may be encouraged by the agency to provide

10  services, including, but not limited to, respite and adult day

11  services, which enable individuals to move in and out of the

12  facility.  A facility is not subject to any additional

13  licensure requirements for providing these services. Respite

14  care may be offered to persons in need of short-term or

15  temporary nursing home services. Respite care must be provided

16  in accordance with this part and rules adopted by the agency.

17  However, the agency shall, by rule, adopt modified

18  requirements for resident assessment, resident care plans,

19  resident contracts, physician orders, and other provisions, as

20  appropriate, for short-term or temporary nursing home

21  services.  The agency shall allow for shared programming and

22  staff in a facility which meets minimum standards and offers

23  services pursuant to this subsection, but, if the facility is

24  cited for deficiencies in patient care, may require additional

25  staff and programs appropriate to the needs of service

26  recipients. A person who receives respite care may not be

27  counted as a resident of the facility for purposes of the

28  facility's licensed capacity unless that person receives

29  24-hour respite care. A person receiving either respite care

30  for 24 hours or longer or adult day services must be included

31  when calculating minimum staffing for the facility. Any costs

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  1  and revenues generated by a nursing home facility from

  2  nonresidential programs or services shall be excluded from the

  3  calculations of Medicaid per diems for nursing home

  4  institutional care reimbursement.

  5         (12)(7)  If the facility has a standard licensure

  6  status or is a Gold Seal facility, exceeds minimum staffing

  7  standards, and is part of a retirement community that offers

  8  other services pursuant to part III, part IV, or part V, be

  9  allowed to share programming and staff.  At the time of

10  relicensure, a retirement community that uses this option must

11  demonstrate through staffing records that minimum staffing

12  requirements for the facility were exceeded.

13         (13)(8)  Maintain the facility premises and equipment

14  and conduct its operations in a safe and sanitary manner.

15         (14)(9)  If the licensee furnishes food service,

16  provide a wholesome and nourishing diet sufficient to meet

17  generally accepted standards of proper nutrition for its

18  residents and provide such therapeutic diets as may be

19  prescribed by attending physicians.  In making rules to

20  implement this subsection, the agency shall be guided by

21  standards recommended by nationally recognized professional

22  groups and associations with knowledge of dietetics.

23         (15)(10)  Keep full records of resident admissions and

24  discharges; medical and general health status, including

25  medical records, personal and social history, and identity and

26  address of next of kin or other persons who may have

27  responsibility for the affairs of the residents; and

28  individual resident care plans including, but not limited to,

29  prescribed services, service frequency and duration, and

30  service goals.  The records shall be open to inspection by the

31  agency.

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  1         (16)  Maintain in the medical record for each resident

  2  a daily chart of certified nursing assistant services provided

  3  to the resident. This record must be completed

  4  contemporaneously with the delivery of care, by the certified

  5  nursing assistant caring for the resident. This record must

  6  indicate assistance with activities of daily living,

  7  assistance with eating, and assistance with drinking, and must

  8  record each offering of nutrition and hydration for those

  9  residents whose plan of care or assessment indicates a risk

10  for malnutrition or dehydration.

11         (17)(11)  Keep such fiscal records of its operations

12  and conditions as may be necessary to provide information

13  pursuant to this part.

14         (18)(12)  Furnish copies of personnel records for

15  employees affiliated with such facility, to any other facility

16  licensed by this state requesting this information pursuant to

17  this part.  Such information contained in the records may

18  include, but is not limited to, disciplinary matters and any

19  reason for termination. Any facility releasing such records

20  pursuant to this part shall be considered to be acting in good

21  faith and may not be held liable for information contained in

22  such records, absent a showing that the facility maliciously

23  falsified such records.

24         (19)(13)  Publicly display a poster provided by the

25  agency containing the names, addresses, and telephone numbers

26  for the state's abuse hotline, the State Long-Term Care

27  Ombudsman, the Agency for Health Care Administration consumer

28  hotline, the Advocacy Center for Persons with Disabilities,

29  the Florida Statewide Advocacy Council, and the Medicaid Fraud

30  Control Unit, with a clear description of the assistance to be

31  expected from each.

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  1         (20)  Submit to the agency information specified in s.

  2  400.071(2) relating to management companies within 30 days

  3  after the effective date of a management agreement.

  4         (21)  Submit to the agency by February 1 and August 1

  5  of each year and as otherwise requested by the agency

  6  information regarding staff-to-resident ratios, staff

  7  turnover, and staff stability of the facility, with respect to

  8  certified nursing assistants, registered nurses, licensed

  9  nurses, the director of nursing, and the facility

10  administrator. For purposes of this reporting:

11         (a)  Staff-to-resident ratio is based on the

12  requirements established pursuant to s. 400.23(3)(a) and

13  applicable rules.

14         (b)  Staff turnover shall be calculated from the most

15  recent 12-month period ending on the 1st workday of the most

16  recent calendar quarter prior to submission of the

17  information. The turnover rate must be computed quarterly,

18  with the annual rate being the cumulative sum of the quarterly

19  rates. The formula to determine the turnover rate shall be the

20  total number of terminations or separations of nonprobationary

21  employees from employment divided by the total number of staff

22  employed at the end of the period for which the rate is

23  computed, expressed as a percent.

24         (c)  Staff turnover shall be reported as one total

25  figure including staff of all classes and shall be reported by

26  the following categories: certified nursing assistants,

27  dietitians, licensed practical nurses, registered nurses,

28  noncertified nursing assistants working for the allowed 4

29  months before certification, therapists, social services

30  staff, recreation staff, activity staff, administrative

31  support personnel, managers, dietary aides, cooks, maintenance

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  1  personnel, custodial personnel, and any other category of

  2  staff necessary for the facility.

  3         (d)  The formula for determining staff stability is the

  4  total number of employees that have been employed for over 12

  5  months divided by the total number of employees employed at

  6  the end of the most recent calendar quarter, expressed as a

  7  percentage.

  8         (22)  Report monthly the number of vacant beds in the

  9  facility that are available for resident occupancy on the day

10  the information is reported.

11         (23)  Submit to the agency copies of any settlement,

12  civil verdict, or judgment relating to medical negligence,

13  violation of residents' rights, or wrongful death. Copies must

14  be submitted to the agency within 30 days after the filing

15  with the clerk of the court. The information required in this

16  subsection shall be maintained in the facility's licensure

17  file and in an agency database which is available as a public

18  record.

19

20  Facilities that have been awarded a Gold Seal under the

21  program established in s. 400.235 may develop a plan to

22  provide certified nursing assistant training as prescribed by

23  federal regulations and state rules and may apply to the

24  agency for approval of its program.

25         Section 21.  Section 400.1413, Florida Statutes, is

26  created to read:

27         400.1413  Internal risk management and quality

28  assurance program.--

29         (1)  Every licensed facility shall, as part of its

30  administrative functions, establish an internal risk

31  management and quality assurance program, the purpose of which

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  1  is to assess patient care practices, review and act on

  2  facility quality indicators, maintain and review facility

  3  incident reports, correct deficiencies cited by the agency,

  4  resolve resident grievances, and develop plans of action to

  5  correct and respond quickly to identified quality

  6  deficiencies.

  7         (2)  The internal risk management and quality assurance

  8  program is the responsibility of the facility administrator.

  9         (3)  The owner of the nursing home shall establish

10  policies and procedures to implement the internal risk

11  management and quality assurance program, which includes:

12         (a)  The investigation and analysis of the frequency

13  and causes of general categories and specific types of adverse

14  incidents involving or affecting residents.

15         (b)  The development of appropriate measures to

16  minimize the risk of adverse incidents to residents,

17  including, but not limited to:

18         1.  Risk management and risk prevention education and

19  training of all nonphysician personnel as follows:

20         a.  Such education and training of all nonphysician

21  personnel as part of their initial orientation; and

22         b.  At least 3 hours of such education and training

23  annually for all nonphysician personnel in both clinical areas

24  and provision of resident care.

25         2.  The analysis of resident grievances that relate to

26  resident care and the quality of clinical services.

27         3.  The development and implementation of an incident

28  reporting system based upon the affirmative duty of all health

29  care providers and all agents and employees of the facility to

30  report adverse incidents to the risk manager.

31

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  1         (4)  In addition to the program mandated by this

  2  section, other innovative approaches intended to reduce the

  3  frequency and severity of adverse incidents to residents and

  4  violations of residents' rights shall be encouraged and their

  5  implementation and operation facilitated.

  6         (5)  Each internal risk management and quality

  7  assurance program shall include the use of incident reports to

  8  be filed with the risk manager and the facility administrator.

  9  The risk manager shall have free access to all medical records

10  of the licensed facility. As a part of each internal risk

11  management and quality assurance program, the incident reports

12  shall be used to develop categories of incidents which

13  identify problem areas. Once identified, procedures shall be

14  adjusted to correct the problem areas.

15         (6)  The nursing home shall report adverse incidents to

16  the agency in a timely manner.

17         (7)  For purposes of report to the agency pursuant to

18  this section, the term "adverse incident" means:

19         (a)  An event over which facility personnel could

20  exercise control and which is associated in whole or in part

21  with clinical intervention, rather than the condition for

22  which such intervention occurred, and which results in one of

23  the following injuries:

24         1.  Death.

25         2.  Brain or spinal damage.

26         3.  Permanent disfigurement.

27         4.  Fracture or dislocation of bones or joints.

28         5.  A resulting limitation of neurological, physical,

29  or sensory function.

30

31

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  1         6.  Any condition that required medical attention to

  2  which the patient has not given his or her informed consent,

  3  including failure to honor advanced directives.

  4         7.  Any condition that required the transfer of the

  5  patient, within or outside the facility, to a unit providing a

  6  more acute level of care due to the adverse incident, rather

  7  than the resident's condition prior to the adverse incident.

  8         (b)  Abuse, neglect, or exploitation as defined in s.

  9  415.102.

10         (c)  Abuse, neglect, or harm as defined in s. 39.01.

11         (d)  Resident elopement.

12         (e)  Events reported to law enforcement.

13         (8)(a)  Each licensed facility subject to this section

14  shall submit an annual report to the agency on a form

15  developed by the agency summarizing the incident reports that

16  have been filed in the facility for that year. The report

17  shall include:

18         1.  The total number of adverse incidents.

19         2.  A listing, by category, of the types of adverse

20  incidents and the number of incidents occurring within each

21  category.

22         3.  Types of liability claims filed based on an adverse

23  incident or reportable injury.

24         4.  Disciplinary action taken against staff,

25  categorized by type of staff involved.

26         5.  The facility's failure to comply with state minimum

27  staffing requirements.

28         (b)  The information reported to the agency pursuant to

29  paragraph (a) which relates to persons licensed under chapter

30  458, chapter 459, chapter 461, chapter 464, or chapter 466

31  shall be reviewed by the agency. The agency shall determine

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  1  whether any of the incidents potentially involved conduct by a

  2  health care professional who is subject to disciplinary

  3  action, in which case the provisions of s. 456.073 shall

  4  apply.

  5         (c)  The report submitted to the agency shall also

  6  contain the name of the person responsible for risk management

  7  in the facility.

  8         (9)(a)  The licensed facility shall notify the agency

  9  within 1 business day after the occurrence of any of the

10  following:

11         1.  The death of a patient.

12         2.  Alleged mistreatment of a patient by a certified

13  nursing assistant or licensed nurse.

14         3.  Resident elopement.

15         4.  Events reported to law enforcement.

16         5.  The facility's failure to comply with state minimum

17  staffing requirements.

18         (b)  The notification must be made in writing and be

19  provided by facsimile device or overnight mail delivery. The

20  notification must include information regarding the identity

21  of the affected resident, the type of adverse incident, the

22  initiation of an investigation by the facility, and whether

23  the events causing or resulting in the adverse incident

24  represent a potential risk to other residents.

25         (c)  The agency may investigate, as it deems

26  appropriate, any such incident and prescribe measures that

27  must or may be taken in response to the incident. The agency

28  shall review each incident and determine whether it

29  potentially involved conduct by the health care professional

30  who is subject to disciplinary action, in which case the

31  provisions of s. 456.073 shall apply.

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  1         (10)  The agency shall have access to all licensed

  2  facility records necessary to carry out the provisions of this

  3  section.

  4         (11)  The agency shall review, as part of its licensure

  5  inspection process, the internal risk management and quality

  6  assurance program at each licensed facility regulated by this

  7  section to determine whether the program meets standards

  8  established in statutes and rules, whether the program is

  9  being conducted in a manner designed to reduce the incidence

10  and severity of adverse incidents, and whether the facility is

11  reporting adverse incidents as required.

12         (12)  There shall be no monetary liability on the part

13  of, and no cause of action for damages shall arise against,

14  any risk manager licensed under s. 395.10974, for the

15  implementation and oversight of the internal risk management

16  and quality assurance program in a facility licensed under

17  this chapter as required by this section, or for any act or

18  proceeding undertaken or performed within the scope of the

19  functions of such internal risk management and quality

20  assurance program, if the risk manager acts without

21  intentional fraud.

22         (13)  If the agency, through its receipt of the annual

23  reports prescribed in this chapter or through any

24  investigation, has a reasonable belief that conduct by a staff

25  member or employee of a licensed facility is grounds for

26  disciplinary action by the appropriate regulatory board, the

27  agency shall report this fact to such regulatory board.

28         Section 22.  Section 400.1415, Florida Statutes, is

29  amended to read:

30         400.1415  Patient records; penalties for alteration.--

31

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  1         (1)  Any person who fraudulently alters, defaces, or

  2  falsifies any medical or other nursing home record, or causes

  3  or procures any of these offenses to be committed, commits a

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

  5  775.082 or 775.083. Any such offense at a facility shall be

  6  subject to a class I citation and fine pursuant to s.

  7  400.23(8). Any person authorized under s. 400.19 to enter a

  8  nursing home facility who detects or reasonably suspects such

  9  offense has occurred must immediately report such information

10  to the local law enforcement agency and state attorney.

11         (2)  A conviction under subsection (1) is also grounds

12  for restriction, suspension, or termination of license

13  privileges.

14         (3)  The director of nursing and the licensed nursing

15  home administrator at the facility shall be referred to their

16  respective licensure boards for disciplinary review when a

17  staff person is convicted under subsection (1).

18         (4)  A conviction or finding by the agency under

19  subsection (1) is also grounds for an immediate moratorium on

20  admissions.

21         Section 23.  Subsection (4) of section 400.19, Florida

22  Statutes, is amended to read:

23         400.19  Right of entry and inspection.--

24         (4)  The agency shall conduct unannounced onsite

25  facility reviews following written verification of licensee

26  noncompliance in instances in which a long-term care ombudsman

27  council, pursuant to ss. 400.0071 and 400.0075, has received a

28  complaint and has documented deficiencies in resident care or

29  in the physical plant of the facility that threaten the

30  health, safety, or security of residents, or when the agency

31  documents through inspection that conditions in a facility

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  1  present a direct or indirect threat to the health, safety, or

  2  security of residents. However, the agency shall conduct four

  3  or more unannounced onsite reviews every 3 months to within a

  4  12-month period of each facility while it which has a

  5  conditional licensure status. Deficiencies related to physical

  6  plant do not require followup reviews after the agency has

  7  determined that correction of the deficiency has been

  8  accomplished and that the correction is of the nature that

  9  continued compliance can be reasonably expected.

10         Section 24.  Paragraph (a) of subsection (5) of section

11  400.191, Florida Statutes, is amended to read:

12         400.191  Availability, distribution, and posting of

13  reports and records.--

14         (5)  Every nursing home facility licensee shall:

15         (a)  Post, in a sufficient number of prominent

16  positions in the nursing home so as to be accessible to all

17  residents and to the general public:,

18         1.  A concise summary of the last inspection report

19  pertaining to the nursing home and issued by the agency, with

20  references to the page numbers of the full reports, noting any

21  deficiencies found by the agency and the actions taken by the

22  licensee to rectify such deficiencies and indicating in such

23  summaries where the full reports may be inspected in the

24  nursing home.

25         2.  A copy of the most recent version of the Florida

26  Nursing Home Guide Watch List.

27         Section 25.  Subsection (2) of section 400.211, Florida

28  Statutes, is amended, and subsection (4) is added to section,

29  to read:

30         400.211  Persons employed as nursing assistants;

31  certification requirement.--

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  1         (2)  The following categories of persons who are not

  2  certified as nursing assistants under part II of chapter 464

  3  may be employed as a nursing assistant by a nursing facility

  4  for a period of 4 months:

  5         (a)  Persons who are enrolled in, or have completed, a

  6  state-approved nursing assistant program; or

  7         (b)  Persons who have been positively verified as

  8  actively certified and on the registry in another state and

  9  who have not been found to have been convicted of or entered a

10  plea of nolo contendere or guilty to abuse, neglect, or

11  exploitation in another state, regardless of adjudication with

12  no findings of abuse; or

13         (c)  Persons who have preliminarily passed the state's

14  certification exam.

15

16  The certification requirement must be met within 4 months

17  after initial employment as a nursing assistant in a licensed

18  nursing facility.

19         (4)  When employed in a nursing home facility for a

20  12-month period or longer, a certified nursing assistant, to

21  maintain certification, shall submit to a performance review

22  every 12 months and shall be given regular inservice education

23  based on the outcome of such review. The inservice training

24  shall be provided by the facility and must:

25         (a)  Be sufficient to ensure the continuing competence

26  of the certified nursing assistant, but must be no less than

27  18 hours per year.

28         (b)  Include, at a minimum:

29         1.  Assisting residents with eating and proper feeding

30  techniques.

31         2.  Principles of adequate hydration.

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  1         3.  Assisting and responding to the cognitively

  2  impaired residents or residents with difficult behaviors.

  3         4.  Caring for resident at the end of life.

  4         5.  Recognizing changes that place a resident at risk

  5  for pressure ulcers and falls.

  6         (c)  Address areas of weakness as determined in the

  7  certified nursing assistant's performance reviews and may

  8  address the special needs of residents as determined by the

  9  nursing home facility staff.

10         Section 26.  Subsections (2), (3), (7), and (8) of

11  section 400.23, Florida Statutes, are amended, and subsection

12  (10) is added to said section, to read:

13         400.23  Rules; evaluation and deficiencies; licensure

14  status.--

15         (2)  Pursuant to the intention of the Legislature, the

16  agency, in consultation with the Department of Health and the

17  Department of Elderly Affairs, shall adopt and enforce rules

18  to implement this part, which shall include reasonable and

19  fair standards and procedures relating criteria in relation

20  to:

21         (a)  The location and construction of the facility;

22  including fire and life safety, plumbing, heating, cooling,

23  lighting, ventilation, and other housing conditions which will

24  ensure the health, safety, and comfort of residents, including

25  an adequate call system.  The agency shall establish standards

26  for facilities and equipment to increase the extent to which

27  new facilities and a new wing or floor added to an existing

28  facility after July 1, 1999, are structurally capable of

29  serving as shelters only for residents, staff, and families of

30  residents and staff, and equipped to be self-supporting during

31  and immediately following disasters.  The agency shall work

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  1  with facilities licensed under this part and report to the

  2  Governor and Legislature by April 1, 1999, its recommendations

  3  for cost-effective renovation standards to be applied to

  4  existing facilities. In making such rules, the agency shall be

  5  guided by criteria recommended by nationally recognized

  6  reputable professional groups and associations with knowledge

  7  of such subject matters. The agency shall update or revise

  8  such criteria as the need arises. All nursing homes must

  9  comply with those lifesafety code requirements and building

10  code standards applicable at the time of approval of their

11  construction plans. The agency may require alterations to a

12  building if it determines that an existing condition

13  constitutes a distinct hazard to life, health, or safety. The

14  agency shall adopt fair and reasonable rules setting forth

15  conditions under which existing facilities undergoing

16  additions, alterations, conversions, renovations, or repairs

17  shall be required to comply with the most recent updated or

18  revised standards.

19         (b)  The number and qualifications of all personnel,

20  including management, medical, nursing, and other professional

21  personnel, and nursing assistants, orderlies, and support

22  personnel, having responsibility for any part of the care

23  given residents.

24         (c)  All sanitary conditions within the facility and

25  its surroundings, including water supply, sewage disposal,

26  food handling, and general hygiene which will ensure the

27  health and comfort of residents.

28         (d)  The equipment essential to the health and welfare

29  of the residents.

30         (e)  A uniform accounting system.

31

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  1         (f)  The care, treatment, and maintenance of residents

  2  and measurement of the quality and adequacy thereof,

  3  consistent with based on rules developed under this chapter

  4  and the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No.

  5  100-203) (December 22, 1987), Title IV (Medicare, Medicaid,

  6  and Other Health-Related Programs), Subtitle C (Nursing Home

  7  Reform), as amended.

  8         (g)  The preparation and annual update of a

  9  comprehensive emergency management plan.  The agency shall

10  adopt rules establishing minimum criteria for the plan after

11  consultation with the Department of Community Affairs.  At a

12  minimum, the rules must provide for plan components that

13  address emergency evacuation transportation; adequate

14  sheltering arrangements; postdisaster activities, including

15  emergency power, food, and water; postdisaster transportation;

16  supplies; staffing; emergency equipment; individual

17  identification of residents and transfer of records; and

18  responding to family inquiries.  The comprehensive emergency

19  management plan is subject to review and approval by the local

20  emergency management agency.  During its review, the local

21  emergency management agency shall ensure that the following

22  agencies, at a minimum, are given the opportunity to review

23  the plan:  the Department of Elderly Affairs, the Department

24  of Health, the Agency for Health Care Administration, and the

25  Department of Community Affairs.  Also, appropriate volunteer

26  organizations must be given the opportunity to review the

27  plan.  The local emergency management agency shall complete

28  its review within 60 days and either approve the plan or

29  advise the facility of necessary revisions.

30         (h)  The implementation of the consumer satisfaction

31  surveys required under s. 400.0225; the availability,

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  1  distribution, and posting of reports and records required

  2  under s. 400.191; and the Gold Seal program established under

  3  s. 400.235.

  4         (i)  An adequate quality assurance process and risk

  5  management procedure.

  6         (3)(a)1.  The agency shall adopt rules providing for

  7  the minimum staffing requirements for direct care staff

  8  nursing homes. These requirements shall include, for each

  9  nursing home facility, a minimum certified nursing assistant

10  staffing of 2.9 hours per resident per day, with no single

11  shift having less than one certified nursing assistant per 15

12  residents; and a minimum licensed nursing staffing of 1.0 hour

13  per resident per day, with no single shift having less than

14  one licensed nurse per 40 residents and 0.5 hours of

15  registered nurse staffing per resident per day. Each nursing

16  hame shall document, including evening and night shifts and

17  weekends. Agency rules shall specify requirements for

18  documentation of compliance with staffing standards and post

19  daily, sanctions for violation of such standards, and

20  requirements for daily posting of the names of staff on duty

21  for the benefit of facility residents and the public. Failure

22  to provide such posting daily constitutes a class III

23  deficiency.

24         2.  The agency shall recognize the use of licensed

25  nurses for compliance with minimum staffing requirements for

26  certified nursing assistants, provided that the facility

27  otherwise meets the minimum staffing requirements for licensed

28  nurses and that the licensed nurses so recognized are

29  performing the duties of a certified nursing assistant. Unless

30  otherwise approved by the agency, licensed nurses counted

31  towards the minimum staffing requirements for certified

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  1  nursing assistants must exclusively perform the duties of a

  2  certified nursing assistant for the entire shift and shall not

  3  also be counted towards the minimum staffing requirements for

  4  licensed nurses.

  5         3.  If the agency approved a facility's request to use

  6  a licensed nurse to perform both licensed nursing and

  7  certified nursing assistant duties, the facility must allocate

  8  the amount of staff time specifically spent on certified

  9  nursing assistant duties for the purpose of documenting

10  compliance with minimum staffing requirements for certified

11  and licensed nursing staff. In no event may the hours of a

12  licensed nurse with dual job responsibilities be counted

13  twice.

14         4.  A nursing facility that has failed to comply with

15  state minimum staffing requirements 2 days out of any 7-day

16  period shall be prohibited from accepting new admissions until

17  such time as the facility has achieved the minimum staffing

18  requirements for a period of 7 consecutive days. For purposes

19  of this subparagraph, any person who was a resident of the

20  facility and was absent from the facility for the purpose of

21  receiving medical care at a separate location or was on a

22  leave of absence shall not be considered a new admission.

23  Failure to impose such an admissions moratorium constitutes a

24  class I deficiency.

25         (b)  The agency shall adopt rules to allow properly

26  trained staff of a nursing facility, in addition to certified

27  nursing assistants and licensed nurses, to assist residents

28  with eating. The rules shall specify the minimum training

29  requirements and shall specify the physiological conditions or

30  disorders of residents which would necessitate that the eating

31  assistance be provided by nursing personnel of the facility.

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  1  Nonnursing staff providing eating assistance to residents

  2  under the provisions of this subsection shall not count

  3  towards compliance with minimum staffing standards.

  4         (c)  Licensed practical nurses licensed under chapter

  5  464 who are providing nursing services in nursing home

  6  facilities under this part may supervise the activities of

  7  other licensed practical nurses, certified nursing assistants,

  8  and other unlicensed personnel providing services in such

  9  facilities in accordance with rules adopted by the Board of

10  Nursing.

11         (7)  The agency shall, at least every 15 months,

12  evaluate all nursing home facilities and make a determination

13  as to the degree of compliance by each licensee with the

14  established rules adopted under this part as a basis for

15  assigning a licensure status to that facility.  The agency

16  shall base its evaluation on the most recent inspection

17  report, taking into consideration findings from other official

18  reports, surveys, interviews, investigations, and inspections.

19  The agency shall assign a licensure status of standard or

20  conditional to each nursing home.

21         (a)  A standard licensure status means that a facility

22  has no class I or class II deficiencies, has corrected all

23  class III deficiencies within the time established by the

24  agency, and is in substantial compliance at the time of the

25  survey with criteria established under this part, with rules

26  adopted by the agency, and, if applicable, with rules adopted

27  under the Omnibus Budget Reconciliation Act of 1987 (Pub. L.

28  No. 100-203) (December 22, 1987), Title IV (Medicare,

29  Medicaid, and Other Health-Related Programs), Subtitle C

30  (Nursing Home Reform), as amended.

31

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  1         (b)  A conditional licensure status means that a

  2  facility, due to the presence of one or more class I or class

  3  II deficiencies, or class III deficiencies not corrected

  4  within the time established by the agency, is not in

  5  substantial compliance at the time of the survey with criteria

  6  established under this part, with rules adopted by the agency,

  7  or, if applicable, with rules adopted under the Omnibus Budget

  8  Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22,

  9  1987), Title IV (Medicare, Medicaid, and Other Health-Related

10  Programs), Subtitle C (Nursing Home Reform), as amended. If

11  the facility has no class I, class II, or class III

12  deficiencies comes into substantial compliance at the time of

13  the followup survey, a standard licensure status may be

14  assigned.

15         (c)  In evaluating the overall quality of care and

16  services and determining whether the facility will receive a

17  conditional or standard license, the agency shall consider the

18  needs and limitations of residents in the facility and the

19  results of interviews and surveys of a representative sampling

20  of residents, families of residents, ombudsman council members

21  in the planning and service area in which the facility is

22  located, guardians of residents, and staff of the nursing home

23  facility.

24         (d)  The current licensure status of each facility must

25  be indicated in bold print on the face of the license.  A list

26  of the deficiencies of the facility shall be posted in a

27  prominent place that is in clear and unobstructed public view

28  at or near the place where residents are being admitted to

29  that facility. Licensees receiving a conditional licensure

30  status for a facility shall prepare, within 10 working days

31  after receiving notice of deficiencies, a plan for correction

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  1  of all deficiencies and shall submit the plan to the agency

  2  for approval. Correction of all deficiencies, within the

  3  period approved by the agency, shall result in termination of

  4  the conditional licensure status.  Failure to correct the

  5  deficiencies within a reasonable period approved by the agency

  6  shall be grounds for the imposition of sanctions pursuant to

  7  this part.

  8         (e)  Each licensee shall post its license in a

  9  prominent place that is in clear and unobstructed public view

10  at or near the place where residents are being admitted to the

11  facility.

12         (f)  Not later than January 1, 1994, The agency shall

13  adopt rules that:

14         1.  Establish uniform procedures for the evaluation of

15  facilities.

16         2.  Provide criteria in the areas referenced in

17  paragraph (c).

18         3.  Address other areas necessary for carrying out the

19  intent of this section.

20         (8)  The agency shall adopt rules to provide that, when

21  the criteria established under subsection (2) are not met,

22  such deficiencies shall be classified according to the nature

23  and scope of the deficiency. The scope of the deficiency shall

24  be cited as isolated, patterned, or widespread. An isolated

25  deficiency is a deficiency affecting one or a very limited

26  number of residents or involving one or a very limited number

27  of staff, or a situation that occurred only occasionally or in

28  a very limited number of locations. A patterned deficiency is

29  a deficiency where more than a very limited number of

30  residents are affected or more than a very limited number of

31  staff are involved, or the same resident or residents have

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  1  been affected by repeated occurrences of the same deficient

  2  practice, or a situation that has occurred in several

  3  locations; provided that the effect of the deficient practice

  4  is not found to be pervasive throughout the facility. A

  5  widespread deficiency is a deficiency in which the problems

  6  causing the deficiency are pervasive throughout the facility

  7  or represent systemic failure that affected or has the

  8  potential to affect a large portion of all of the facility's

  9  residents. The agency shall indicate the classification on the

10  face of the notice of deficiencies as follows:

11         (a)  Class I deficiencies are those which the agency

12  determines present a situation in which immediate corrective

13  action is necessary because the facility's noncompliance has

14  caused, or is likely to cause, serious injury, harm,

15  impairment, or death to a resident receiving care in a

16  facility an imminent danger to the residents or guests of the

17  nursing home facility or a substantial probability that death

18  or serious physical harm would result therefrom. The condition

19  or practice constituting a class I violation shall be abated

20  or eliminated immediately, unless a fixed period of time, as

21  determined by the agency, is required for correction.

22  Notwithstanding s. 400.121(2), A class I deficiency is subject

23  to a civil penalty of $5,000 for an isolated deficiency,

24  $10,000 for a patterned deficiency, and $15,000 for a

25  widespread deficiency in an amount not less than $5,000 and

26  not exceeding $25,000 for each and every deficiency. A fine

27  shall may be levied notwithstanding the correction of the

28  deficiency.

29         (b)  Class II deficiencies are those which the agency

30  determines have compromised the resident's ability to maintain

31  or reach his or her highest practicable physical, mental, and

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  1  psychosocial well-being as defined by an accurate and

  2  comprehensive resident assessment, plan of care, and provision

  3  of services have a direct or immediate relationship to the

  4  health, safety, or security of the nursing home facility

  5  residents, other than class I deficiencies.  A class II

  6  deficiency is subject to a civil penalty of $2,500 for an

  7  isolated deficiency, $5,000 for a patterned deficiency, and

  8  $7,500 for a widespread deficiency in an amount not less than

  9  $1,000 and not exceeding $10,000 for each and every

10  deficiency.  A citation for a class II deficiency shall

11  specify the time within which the deficiency is required to be

12  corrected.  If a class II deficiency is corrected within the

13  time specified, no civil penalty shall be imposed, unless it

14  is a repeated offense. A fine shall be levied notwithstanding

15  the correction of the deficiency.

16         (c)  Class III deficiencies are those which the agency

17  determines result in no more than minimal physical, mental, or

18  psychosocial discomfort to the resident or have minimal

19  potential to compromise the resident's ability to maintain or

20  reach his or her highest practical physical, mental, or

21  psychosocial well-being as defined by an accurate and

22  comprehensive resident assessment, plan of care, and provision

23  of services to have an indirect or potential relationship to

24  the health, safety, or security of the nursing home facility

25  residents, other than class I or class II deficiencies. A

26  class III deficiency shall be subject to a civil penalty of

27  $1,000 for an isolated deficiency, $2,000 for a patterned

28  deficiency, and $3,000 for a widespread deficiency not less

29  than $500 and not exceeding $2,500 for each and every

30  deficiency.  A citation for a class III deficiency shall

31  specify the time within which the deficiency is required to be

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  1  corrected.  If a class III deficiency is corrected within the

  2  time specified, no civil penalty shall be imposed, unless it

  3  is a repeated offense.

  4         (d)  Class IV deficiencies are those which the agency

  5  determines involve no actual harm but do not constitute a

  6  class III deficiency. A class IV deficiency shall be

  7  documented in the agency's survey results and may be required

  8  to be corrected within a time specified by the agency. No

  9  civil penalty shall be imposed. If the class IV deficiency is

10  an isolated deficiency, no plan of correction is required.

11

12  The fine amount shall be doubled for each class I or class II

13  deficiency if the facility was previously cited for one or

14  more class I or class II deficiencies during or since its last

15  annual inspection.

16         (10)  The agency must submit a report annually to the

17  Legislature that summarizes the information regarding

18  staff-to-resident ratios, staff turnover, and staff stability

19  reported by nursing home facilities pursuant to s.

20  400.141(21).

21         Section 27.  Subsection (3) of section 400.241, Florida

22  Statutes, is amended to read:

23         400.241  Prohibited acts; penalties for violations.--

24         (3)  It is unlawful for any person, long-term care

25  facility, or other entity to willfully interfere with the

26  unannounced inspections mandated by s. 400.0073 or s.

27  400.19(3). Alerting or advising a facility of the actual or

28  approximate date of such inspection shall be a per se

29  violation of this subsection.

30         (4)  A violation of any provision of this part or of

31  any minimum standard, rule, or regulation adopted pursuant

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  1  thereto constitutes a misdemeanor of the second degree,

  2  punishable as provided in s. 775.082 or s. 775.083.  Each day

  3  of a continuing violation shall be considered a separate

  4  offense.

  5         Section 28.  Paragraph (b) of subsection (3) of section

  6  400.407, Florida Statutes, is amended to read:

  7         400.407  License required; fee, display.--

  8         (3)  Any license granted by the agency must state the

  9  maximum resident capacity of the facility, the type of care

10  for which the license is granted, the date the license is

11  issued, the expiration date of the license, and any other

12  information deemed necessary by the agency. Licenses shall be

13  issued for one or more of the following categories of care:

14  standard, extended congregate care, limited nursing services,

15  or limited mental health.

16         (b)  An extended congregate care license shall be

17  issued to facilities providing, directly or through contract,

18  services beyond those authorized in paragraph (a), including

19  acts performed pursuant to part I of chapter 464 by persons

20  licensed thereunder, and supportive services defined by rule

21  to persons who otherwise would be disqualified from continued

22  residence in a facility licensed under this part.

23         1.  In order for extended congregate care services to

24  be provided in a facility licensed under this part, the agency

25  must first determine that all requirements established in law

26  and rule are met and must specifically designate, on the

27  facility's license, that such services may be provided and

28  whether the designation applies to all or part of a facility.

29  Such designation may be made at the time of initial licensure

30  or biennial relicensure, or upon request in writing by a

31  licensee under this part. Notification of approval or denial

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  1  of such request shall be made within 90 days after receipt of

  2  such request and all necessary documentation. Existing

  3  facilities qualifying to provide extended congregate care

  4  services must have maintained a standard license and may not

  5  have been subject to administrative sanctions during the

  6  previous 2 years, or since initial licensure if the facility

  7  has been licensed for less than 2 years, for any of the

  8  following reasons:

  9         a.  A class I or class II violation;

10         b.  Three or more repeat or recurring class III

11  violations of identical or similar resident care standards as

12  specified in rule from which a pattern of noncompliance is

13  found by the agency;

14         c.  Three or more class III violations that were not

15  corrected in accordance with the corrective action plan

16  approved by the agency;

17         d.  Violation of resident care standards resulting in a

18  requirement to employ the services of a consultant pharmacist

19  or consultant dietitian;

20         e.  Denial, suspension, or revocation of a license for

21  another facility under this part in which the applicant for an

22  extended congregate care license has at least 25 percent

23  ownership interest; or

24         f.  Imposition of a moratorium on admissions or

25  initiation of injunctive proceedings.

26         2.  Facilities that are licensed to provide extended

27  congregate care services shall maintain a written progress

28  report on each person who receives such services, which report

29  describes the type, amount, duration, scope, and outcome of

30  services that are rendered and the general status of the

31  resident's health.  A registered nurse, or appropriate

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  1  designee, representing the agency shall visit such facilities

  2  at least two times a year to monitor residents who are

  3  receiving extended congregate care services and to determine

  4  if the facility is in compliance with this part and with rules

  5  that relate to extended congregate care. One of these visits

  6  may be in conjunction with the regular biennial survey.  The

  7  monitoring visits may be provided through contractual

  8  arrangements with appropriate community agencies.  A

  9  registered nurse shall serve as part of the team that

10  biennially inspects such facility. The agency may waive one of

11  the required yearly monitoring visits for a facility that has

12  been licensed for at least 24 months to provide extended

13  congregate care services, if, during the biennial inspection,

14  the registered nurse determines that extended congregate care

15  services are being provided appropriately, and if the facility

16  has no class I or class II violations and no uncorrected class

17  III violations. Before such decision is made, the agency shall

18  consult with the long-term care ombudsman council for the area

19  in which the facility is located to determine if any

20  complaints have been made and substantiated about the quality

21  of services or care.  The agency may not waive one of the

22  required yearly monitoring visits if complaints have been made

23  and substantiated.

24         3.  Facilities that are licensed to provide extended

25  congregate care services shall:

26         a.  Demonstrate the capability to meet unanticipated

27  resident service needs.

28         b.  Offer a physical environment that promotes a

29  homelike setting, provides for resident privacy, promotes

30  resident independence, and allows sufficient congregate space

31  as defined by rule.

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  1         c.  Have sufficient staff available, taking into

  2  account the physical plant and firesafety features of the

  3  building, to assist with the evacuation of residents in an

  4  emergency, as necessary.

  5         d.  Adopt and follow policies and procedures that

  6  maximize resident independence, dignity, choice, and

  7  decisionmaking to permit residents to age in place to the

  8  extent possible, so that moves due to changes in functional

  9  status are minimized or avoided.

10         e.  Allow residents or, if applicable, a resident's

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

12  fact to make a variety of personal choices, participate in

13  developing service plans, and share responsibility in

14  decisionmaking.

15         f.  Implement the concept of managed risk.

16         g.  Provide, either directly or through contract, the

17  services of a person licensed pursuant to part I of chapter

18  464.

19         h.  In addition to the training mandated in s. 400.452,

20  provide specialized training as defined by rule for facility

21  staff.

22         4.  Facilities licensed to provide extended congregate

23  care services are exempt from the criteria for continued

24  residency as set forth in rules adopted under s. 400.441.

25  Facilities so licensed shall adopt their own requirements

26  within guidelines for continued residency set forth by the

27  department in rule.  However, such facilities may not serve

28  residents who require 24-hour nursing supervision. Facilities

29  licensed to provide extended congregate care services shall

30  provide each resident with a written copy of facility policies

31  governing admission and retention.

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  1         5.  The primary purpose of extended congregate care

  2  services is to allow residents, as they become more impaired,

  3  the option of remaining in a familiar setting from which they

  4  would otherwise be disqualified for continued residency.  A

  5  facility licensed to provide extended congregate care services

  6  may also admit an individual who exceeds the admission

  7  criteria for a facility with a standard license, if the

  8  individual is determined appropriate for admission to the

  9  extended congregate care facility.

10         6.  Before admission of an individual to a facility

11  licensed to provide extended congregate care services, the

12  individual must undergo a medical examination as provided in

13  s. 400.426(4) and the facility must develop a preliminary

14  service plan for the individual.

15         7.  When a facility can no longer provide or arrange

16  for services in accordance with the resident's service plan

17  and needs and the facility's policy, the facility shall make

18  arrangements for relocating the person in accordance with s.

19  400.428(1)(k).

20         8.  Failure to provide extended congregate care

21  services may result in denial of extended congregate care

22  license renewal.

23         9.  No later than January 1 of each year, the

24  department, in consultation with the agency, shall prepare and

25  submit to the Governor, the President of the Senate, the

26  Speaker of the House of Representatives, and the chairs of

27  appropriate legislative committees, a report on the status of,

28  and recommendations related to, extended congregate care

29  services. The status report must include, but need not be

30  limited to, the following information:

31

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  1         a.  A description of the facilities licensed to provide

  2  such services, including total number of beds licensed under

  3  this part.

  4         b.  The number and characteristics of residents

  5  receiving such services.

  6         c.  The types of services rendered that could not be

  7  provided through a standard license.

  8         d.  An analysis of deficiencies cited during biennial

  9  inspections.

10         e.  The number of residents who required extended

11  congregate care services at admission and the source of

12  admission.

13         f.  Recommendations for statutory or regulatory

14  changes.

15         g.  The availability of extended congregate care to

16  state clients residing in facilities licensed under this part

17  and in need of additional services, and recommendations for

18  appropriations to subsidize extended congregate care services

19  for such persons.

20         h.  Such other information as the department considers

21  appropriate.

22         Section 29.  Subsections (4) through (11) of section

23  400.426, Florida Statutes, are renumbered as subsections (5)

24  through (12), respectively, and a new subsection (4) is added

25  to said section to read:

26         400.426  Appropriateness of placements; daily record of

27  care; examinations of residents.--

28         (4)  Each facility shall maintain in the care records

29  for each resident a daily chart of activities of daily living

30  care provided to a resident. This record must be completed

31  contemporaneously with the delivery of care by the caregiver

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  1  and include the date of care and the initials or signature of

  2  the caregiver. These records shall be made available to the

  3  resident or his or her guardian upon request within 7 days of

  4  the request. These records shall be maintained by the facility

  5  for a period of not less than 5 years.

  6         Section 30.  Paragraph (k) of subsection (1) of section

  7  400.428, Florida Statutes, is amended to read:

  8         400.428  Resident bill of rights.--

  9         (1)  No resident of a facility shall be deprived of any

10  civil or legal rights, benefits, or privileges guaranteed by

11  law, the Constitution of the State of Florida, or the

12  Constitution of the United States as a resident of a facility.

13  Every resident of a facility shall have the right to:

14         (k)  At least 45 30 days' notice of relocation or

15  termination of residency from the facility unless, for medical

16  reasons, the resident is certified by a physician to require

17  an emergency relocation to a facility providing a more skilled

18  level of care or the resident engages in a pattern of conduct

19  that is harmful or offensive to other residents.  In the case

20  of a resident who has been adjudicated mentally incapacitated,

21  the guardian shall be given at least 30 days' notice of a

22  nonemergency relocation or residency termination.  Reasons for

23  relocation shall be set forth in writing.  In order for a

24  facility to terminate the residency of an individual without

25  notice as provided herein, the facility shall show good cause

26  in a court of competent jurisdiction.

27         Section 31.  Effective October 1, 2001, section

28  400.429, Florida Statutes, is amended to read:

29         (Substantial rewording of section. See

30         s. 400.429, F.S., for present text.)

31

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  1         400.429  Civil actions to enforce assisted living

  2  facility residents' rights.--

  3         (1)(a)  Sections 400.429-400.430 provide the exclusive

  4  remedy for any civil action against an assisted living

  5  facility licensee, facility owner, facility administrator, or

  6  facility staff for recovery of damages from personal injury to

  7  or death of an assisted living facility resident arising out

  8  of negligence or deprivation of the rights specified in s.

  9  400.428. This exclusivity applies to and includes any claim

10  against an employee, agent, or other person for whose actions

11  the licensee is alleged to be vicariously liable and to any

12  management company, parent corporation, subsidiary, lessor, or

13  other person alleged to be directly liable to the resident or

14  vicariously liable for the actions of the licensee or its

15  agent.

16         (b)  However, ss. 400.429-400.430 do not prohibit a

17  resident or a resident's legal guardian from pursuing any

18  administrative remedy or injunctive relief available to a

19  resident as a result of a deprivation of the rights specified

20  in s. 400.028, whether or not the deprivation of rights

21  resulted in personal injury to, or the death of, the resident.

22  In any case where there is a deprivation of rights that does

23  not involve personal injury or death, including any claim for

24  injunctive relief or an administrative remedy, the prevailing

25  party shall be entitled to recover reasonable attorney's fees,

26  not to exceed $25,000, and costs from the nonprevailing party;

27  however, the joinder of a claim under this paragraph with a

28  claim under paragraph (a) shall not be the basis for an award

29  of fees or costs in such claim under paragraph (a). Except as

30  otherwise set forth in this paragraph, it is the intent of the

31  Legislature that this provision for attorney's fees be

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  1  interpreted in a manner consistent with federal case law

  2  involving an action under Title VII of the Civil Rights Act.

  3         (c)  In addition to the remedies provided in ss.

  4  400.429-400.430, a resident, a resident's legal guardian, or

  5  the personal representative of the estate of a deceased

  6  resident may pursue an action under s. 415.1111. In addition,

  7  a resident or a resident's legal guardian shall be entitled to

  8  pursue a claim for damages or injunctive relief for those

  9  violations of s. 400.428 that do not result in personal injury

10  or death.

11         (2)  A claim pursuant to ss. 400.429-400.430 may be

12  brought by the resident or his or her legal guardian, by a

13  person or organization acting on behalf of a resident with the

14  consent of the resident or his or her guardian or, if the

15  resident has died, the personal representative of the estate

16  of the deceased resident.

17         (3)  In any claim brought pursuant to this ss.

18  400.429-400.430, the claimant has the burden of proving by a

19  preponderance of the evidence that:

20         (a)  Each defendant had an established duty to the

21  resident;

22         (b)  Each defendant breached that duty;

23         (c)  The breach of that duty is the proximate cause of

24  the personal injury to, or the death of, the resident, or the

25  proximate cause of the deprivation of the resident's rights

26  specified in s. 400.428; and

27         (d)  The proximate cause of the personal injury, death,

28  or deprivation of the resident's rights resulted in damages.

29         (4)  For purposes of ss. 400.429-400.430, a licensee

30  breaches its established duty to the resident when it fails to

31  provide a standard of care that a reasonably prudent assisted

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  1  living facility would provide under the same or similar

  2  circumstances. A deprivation of the rights specified in s.

  3  400.428 or in any other standard or guidelines specified in

  4  this part or in any applicable administrative standard or

  5  guidelines of this state or a federal regulatory agency shall

  6  be evidence of a breach of duty by the licensee.

  7         (5)  A licensee shall not be liable for the medical

  8  negligence of any physician rendering care or treatment to the

  9  resident except for the services of a medical director as

10  required in this part.  Nothing in this subsection shall be

11  construed to protect a licensee from liability for failure to

12  provide a resident with appropriate observation, assessment,

13  nursing diagnosis, planning, intervention, and evaluation of

14  care by nursing staff.

15         (6)  An action for damages brought under ss.

16  400.429-400.430 must be commenced within 2 years after the

17  date on which the incident giving rise to the action occurred

18  or within 2 years after the date on which the incident is

19  discovered, or should have been discovered with the exercise

20  of due diligence. However, the action may not be commenced

21  later than 4 years after the date of the incident or

22  occurrence out of which the cause of action accrued. In any

23  action covered by this subsection in which it is shown that

24  fraud, concealment, or intentional misrepresentation of fact

25  prevented the discovery of the injury, the period of

26  limitation is extended forward 2 years from the time that the

27  injury is discovered, or should have been discovered with the

28  exercise of due diligence, but such period may not in any

29  event exceed 7 years after the date that the incident giving

30  rise to the injury occurred.

31         (7)  As used in ss. 400.429-400.430, the term:

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  1         (a)  "Claimant" means any person who is entitled to

  2  recover damages under this part.

  3         (b)  "Licensee" means the legal entity identified in

  4  the application for licensure under this part which entity is

  5  the licensed operator of the facility.

  6         (c)  "Medical expert" means a person duly and regularly

  7  engaged in the practice of his or her profession who holds a

  8  health care professional degree from a university or college

  9  and has had special professional training and experience, or a

10  person who possesses special health care knowledge or skill,

11  concerning the subject upon which he or she is called to

12  testify or provide an opinion.

13         (d)  "Resident" means a person who occupies a licensed

14  bed in a facility licensed under this part.

15         (8)  Sections 768.16-768.26 apply to a claim in which

16  the resident has died as a result of the facility's breach of

17  an established duty to the resident. In addition to any other

18  damages, the personal representative may recover on behalf of

19  the estate pursuant to ss. 768.16-768.26. The personal

20  representative may also recover on behalf of the estate

21  noneconomic damages for the resident's pain and suffering from

22  the time of injury until the time of death. The limitations

23  set forth in s. 768.21(8) do not apply to a claim maintained

24  under this section where a resident has died as a result of

25  the assisted living facility's breach of a duty to the

26  resident.

27         (9)  For the purpose of this section, punitive damages

28  may be awarded for conduct which is willful, wanton, gross or

29  flagrant, reckless, or consciously indifferent to the rights

30  of the resident.

31

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  1         (10)  Discovery of financial information for the

  2  purpose of determining the value of punitive damages may not

  3  be had unless the plaintiff shows the court by proffer or

  4  evidence in the record that a reasonable basis exists to

  5  support a claim for punitive damages.

  6         (11)  In addition to any other standards for punitive

  7  damages, any award of punitive damages must be reasonable in

  8  light of the actual harm suffered by the resident and the

  9  egregiousness of the conduct that caused the actual harm to

10  the resident.

11         (12)  Any portion of an order, judgment, arbitration

12  decision, mediation agreement, or other type of agreement,

13  contract, or settlement that has the purpose or effect of

14  concealing information relating to the settlement or

15  resolution of any claim or action brought pursuant to ss.

16  400.429-400.430 is void, contrary to public policy, and may

17  not be enforced. No court shall enter an order or judgment

18  that has the purpose or effect of concealing any information

19  pertaining to the resolution or settlement of any claim or

20  action brought pursuant to ss. 400.429-400.430. Any person or

21  governmental entity has standing to contest an order,

22  judgment, arbitration decision, mediation agreement, or other

23  type of agreement, contract, or settlement that violates this

24  subsection. A contest pursuant to this subsection may be

25  brought by a motion or an action for a declaratory judgment

26  filed in the circuit court of the circuit where the violation

27  of this subsection occurred.

28         (13)  The defendant must provide to the agency a copy

29  of any resolution of a claim or civil action brought pursuant

30  to ss. 400.429-400.430 within 90 days after such resolution,

31  including, but not limited to, any final judgment, arbitration

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  1  decision, order, mediation agreement, or settlement. Failure

  2  to provide the copy to the agency shall result in a fine of

  3  $500 for each day it is overdue. The agency shall develop

  4  forms and adopt rules necessary to administer this subsection.

  5         Section 32.  Subsections (1) through (11) of section

  6  400.429, Florida Statutes, as amended by this act, shall apply

  7  to causes of action accruing on or after October 1, 2001.

  8  Subsections (12) and (13) of section 400.429, Florida

  9  Statutes, as amended by this act, shall apply to causes of

10  action in existence on October 1, 2001.

11         Section 33.  Section 400.430, Florida Statutes, is

12  created to read:

13         400.430  Voluntary binding arbitration.--

14         (1)  Causes of action pursuant to this section shall be

15  governed by the requirements for presuit process, screening,

16  and investigation provided in ss. 400.0235-400.0237.

17         (2)(a)  Upon the completion of presuit investigation

18  with preliminary reasonable grounds for a claim intact, the

19  parties may elect to have damages determined by an arbitration

20  panel.  Such election may be initiated by either party by

21  serving a request for voluntary binding arbitration of damages

22  within 90 days after service of the complaint upon the

23  defendant.  The evidentiary standards for voluntary binding

24  arbitration as authorized herein shall be as provided in ss.

25  120.569(2)(g) and 120.57(1)(c).

26         (b)  Upon receipt of a party's request for such

27  arbitration, the opposing party may accept the offer of

28  voluntary binding arbitration within 30 days.  However, in no

29  event shall the defendant be required to respond to the

30  request for arbitration sooner than 90 days after service of

31  the complaint.  Such acceptance within the time period

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  1  provided by this paragraph shall be a binding commitment to

  2  comply with the decision of the arbitration panel.

  3         (c)  The arbitration panel shall be composed of three

  4  arbitrators, one selected by the claimant, one selected by the

  5  defendant, and one an administrative law judge furnished by

  6  the Division of Administrative Hearings who shall serve as the

  7  chief arbitrator.  In the event of multiple plaintiffs or

  8  multiple defendants, the arbitrator selected by the side with

  9  multiple parties shall be the choice of those parties.  If the

10  multiple parties cannot reach agreement as to their

11  arbitrator, each of the multiple parties shall submit a

12  nominee, and the director of the Division of Administrative

13  Hearings shall appoint the arbitrator from among such

14  nominees.

15         (d)  The arbitrators shall be independent of all

16  parties, witnesses, and legal counsel, and no officer,

17  director, affiliate, subsidiary, or employee of a party,

18  witness, or legal counsel may serve as an arbitrator in the

19  proceeding.

20         (e)  The rate of compensation for arbitrators other

21  than the administrative law judge shall be set by the chief

22  judge of the appropriate circuit court by schedule or as

23  agreed by the parties.  In setting the schedule, the chief

24  judge shall consider the prevailing rates charged for the

25  delivery of professional services in the community.

26         (f)  Arbitration pursuant to this section shall

27  preclude recourse to any other remedy by the claimant against

28  any participating defendant, and shall be undertaken with the

29  understanding that:

30         1.  Net economic damages shall be awardable, including,

31  but not limited to, past and future medical expenses and 80

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  1  percent of wage loss and loss of earning capacity, offset by

  2  any collateral source payments.

  3         2.  Noneconomic damages shall be limited to a maximum

  4  of $500,000 per incident.

  5         3.  Damages for future economic losses shall be awarded

  6  to be paid by periodic payments pursuant to s. 766.202(8) and

  7  shall be offset by future collateral source payments.

  8         4.  Punitive damages may be awarded by the arbitration

  9  panel for conduct which is willful, wanton, gross or flagrant,

10  reckless, or consciously indifferent to the rights of the

11  resident. Upon such finding, the judgment for the total amount

12  of punitive damages awarded to a claimant may not exceed three

13  times the amount of compensatory damages awarded to each

14  person entitled thereto by the arbitrators. Any award of

15  punitive damages shall be equally divided between the claimant

16  and the Quality of Long-Term Care Facility Improvement Trust

17  Fund and awarded pursuant to paragraphs (4)(b)-(e).

18         5.  The defendant shall be responsible for the payment

19  of interest on all accrued damages with respect to which

20  interest would be awarded at trial.

21         6.  The defendant shall pay the claimant's reasonable

22  attorney's fees and costs, as determined by the arbitration

23  panel, but in no event more than 15 percent of the award,

24  reduced to present value.

25         7.  The defendant shall pay all the costs of the

26  arbitration proceeding and the fees of all the arbitrators

27  other than the administrative law judge.

28         8.  Each defendant who submits to arbitration under

29  this section shall be jointly and severally liable for all

30  damages assessed pursuant to this section.

31

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  1         9.  The defendant's obligation to pay the claimant's

  2  damages shall be for the purpose of arbitration under this

  3  section only.  A defendant's or claimant's offer to arbitrate

  4  shall not be used in evidence or in argument during any

  5  subsequent litigation of the claim following the rejection

  6  thereof. Once arbitration has been selected by the parties, it

  7  shall be with the understanding and agreement that the

  8  defendants do not contest liability, and the issue to be

  9  determined in this regard shall be the amount of compensatory

10  damages to be awarded to the claimant. The defendant may fully

11  contest liability regarding punitive damages and shall not be

12  deemed to have admitted liability for, or the amount of, any

13  punitive damages.

14         10.  The fact of making or accepting an offer to

15  arbitrate shall not be admissible as evidence of liability in

16  any collateral or subsequent proceeding on the claim.

17         11.  Any offer by a claimant to arbitrate must be made

18  to each defendant against whom the claimant has made a claim.

19  Any offer by a defendant to arbitrate must be made to each

20  claimant who has joined in the litigation.  A defendant who

21  rejects a claimant's offer to arbitrate shall be subject to

22  the provisions of paragraph (3)(c). A claimant who rejects a

23  defendant's offer to arbitrate shall be subject to the

24  provisions of paragraph (3)(d).

25         12.  The hearing shall be conducted by all of the

26  arbitrators, but a majority may determine any question of fact

27  and render a final decision.  The chief arbitrator shall

28  decide all evidentiary matters.

29

30  The provisions of this paragraph shall not preclude settlement

31  at any time by mutual agreement of the parties.

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  1         (g)  Any issue between the defendant and the

  2  defendant's insurer or self-insurer as to who shall control

  3  the defense of the claim and any responsibility for payment of

  4  an arbitration award, shall be determined under existing

  5  principles of law; provided that the insurer or self-insurer

  6  shall not offer to arbitrate or accept a claimant's offer to

  7  arbitrate without the written consent of the defendant.

  8         (h)  The Division of Administrative Hearings is

  9  authorized to promulgate rules to effect the orderly and

10  efficient processing of the arbitration procedures of this

11  section.

12         (i)  Rules promulgated by the Division of

13  Administrative Hearings pursuant to this section, s. 120.54,

14  or s. 120.65 may authorize any reasonable sanctions except

15  contempt for violation of the rules of the division or failure

16  to comply with a reasonable order issued by an administrative

17  law judge, which is not under judicial review.

18         (3)  The following provisions shall govern when

19  voluntary binding arbitration is not offered or accepted:

20         (a)  A proceeding for voluntary binding arbitration is

21  an alternative to judicial proceedings once agreed to by the

22  parties. If not offered or accepted, however, the provisions

23  of paragraph (b) shall apply.

24         (b)  If neither party requests voluntary binding

25  arbitration, the claim shall proceed in the judicial process.

26  In such judicial process, the provisions of s. 768.79 shall

27  apply.

28         (c)  If the defendant refuses a claimant's offer of

29  voluntary binding arbitration under this section:

30         1.  The claim shall proceed in the judicial process

31  without limitation upon damages.

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  1         2.  The claimant's award shall be reduced by any

  2  damages recovered by the claimant from arbitrating

  3  codefendants following arbitration.

  4         (d)  If the claimant rejects a defendant's offer to

  5  enter voluntary binding arbitration under this section:

  6         1.  The claim shall proceed in the judicial process

  7  without limitation upon damages.

  8         2.  The claimant's award shall be reduced by any

  9  damages recovered by the claimant from arbitrating

10  codefendants following arbitration.

11         3.  Notwithstanding any other law to the contrary,

12  punitive damages may not exceed three times the amount of

13  compensatory damages awarded to each person entitled thereto

14  by the trier of fact and the amount shall be divided equally

15  between the claimant and the Quality of Long-Term Care

16  Facility Improvement Trust Fund, in accordance with the

17  following provisions:

18         a.  The clerk of the court shall transmit a copy of the

19  jury verdict to the State Treasurer by certified mail. In the

20  final judgment the court shall order the percentages of the

21  award, payable as provided herein.

22         b.  A settlement agreement entered into between the

23  original parties to the action after a verdict has been

24  returned must provide a proportionate share payable to the

25  Quality of Long-Term Care Facility Improvement Trust Fund

26  specified herein. For purposes of this subsection, a

27  proportionate share is a 50-percent share of that percentage

28  of the settlement amount which the punitive damages portion of

29  the verdict bore to the total of the compensatory and punitive

30  damages in the verdict.

31

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  1         c.  The Department of Banking and Finance shall collect

  2  or cause to be collected all payments due the state under this

  3  section. Such payments are made to the Comptroller and

  4  deposited in the appropriate fund specified in this

  5  subsection.

  6         d.  If the full amount of punitive damages awarded

  7  cannot be collected, the claimant and the other recipient

  8  designated pursuant to this subsection are each entitled to a

  9  proportionate share of the punitive damages collected.

10         (4)(a)1.  In the event that neither the claimant nor

11  the defendant request arbitration under this section, then

12  notwithstanding any other provision of law to the contrary, in

13  any action arising under this part and involving the award of

14  punitive damages, the judgment for the total amount of

15  punitive damages awarded to a claimant may not exceed three

16  times the amount of compensatory damages awarded to each

17  person entitled thereto by the trier of fact, except as

18  provided in subparagraph 2. This paragraph does not apply to

19  any class action.

20         2.  If any award for punitive damages exceeds the

21  limitation specified in subparagraph 1., the award is presumed

22  to be excessive and the defendant is entitled to remittitur of

23  the amount in excess of the limitation unless the claimant

24  demonstrates to the court by clear and convincing evidence

25  that the award is not excessive in light of the facts and

26  circumstances that were presented to the trier of fact. The

27  court shall give great weight as a mitigating factor to the

28  infrequency or lack of severity of prior claims against the

29  defendant.

30         3.  The jury may not be instructed or informed as to

31  the provisions of this subsection.

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  1         (b)  The amount of punitive damages awarded to each

  2  claimant shall be equally divided between the claimant and the

  3  Quality of Long-Term Care Facility Improvement Trust Fund, in

  4  accordance with the following:

  5         1.  The clerk of the court shall transmit a copy of the

  6  jury verdict to the State Treasurer by certified mail. In the

  7  final judgment, the court shall order the percentages of the

  8  award, payable as provided herein.

  9         2.  A settlement agreement entered into between the

10  original parties to the action after a verdict has been

11  returned must provide a proportionate share payable to the

12  Quality of Long-Term Care Facility Improvement Trust Fund

13  specified herein. Such proportionate share shall be determined

14  by prorating the amount of the settlement between compensatory

15  and punitive damages in the same ratio as the respective

16  portions of the damages awarded in the verdict. That portion

17  of the prorated punitive damages that exceeds three times the

18  prorated compensatory damages shall be the amount of the

19  proportionate share to be divided as provided herein.

20         3.  The Department of Banking and Finance shall collect

21  or cause to be collected all payments due the state under this

22  section. Such payments shall be made to the Comptroller and

23  deposited in the appropriate fund specified in this

24  subsection.

25         4.  If the full amount of punitive damages awarded

26  cannot be collected, the claimant and the other recipient

27  designated pursuant to this subsection are each entitled to a

28  proportionate share of the punitive damages collected.

29         (5)  Arbitration to allocate responsibility when more

30  than one defendant has participated in voluntary binding

31  arbitration, procedures involving misarbitration, payment of

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  1  an arbitration award, and appeal of an arbitration award shall

  2  be governed by the requirements provided in ss.

  3  400.0239-400.0242.

  4         Section 34.  Subsection (5) of section 400.431, Florida

  5  Statutes, is amended to read:

  6         400.431  Closing of facility; notice; penalty.--

  7         (5)  The agency may levy a fine in an amount no greater

  8  than $5,000 upon each person or business entity that owns any

  9  interest in a facility that terminates operation without

10  providing notice to the agency and the residents of the

11  facility at least 45 30 days before operation ceases.  This

12  fine shall not be levied against any facility involuntarily

13  closed at the initiation of the agency.  The agency shall use

14  the proceeds of the fines to operate the facility until all

15  residents of the facility are relocated and shall deposit any

16  balance of the proceeds into the Health Care Trust Fund

17  established pursuant to s. 400.418.

18         Section 35.  Section 400.455, Florida Statutes, is

19  created to read:

20         400.455  Adverse action against employee for disclosing

21  information of specified nature prohibited; employee remedy

22  and relief.--

23         (1)  SHORT TITLE.--This section may be cited as the

24  "Assisted Living Facility Whistleblower's Act."

25         (2)  LEGISLATIVE INTENT.--It is the intent of the

26  Legislature to prevent assisted living facilities or

27  independent contractors from taking retaliatory action against

28  an employee who reports to an appropriate person or agency

29  violations of law on the part of a facility or independent

30  contractor that create a substantial and specific danger to an

31  assisted living facility resident's health, safety, or

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  1  welfare. It is further the intent of the Legislature to

  2  prevent assisted living facilities or independent contractors

  3  from taking retaliatory action against any person who

  4  discloses information to an appropriate agency alleging

  5  improper use of or gross waste of governmental funds, or any

  6  other abuse or gross neglect of duty on the part of an

  7  assisted living facility.

  8         (3)  DEFINITIONS.--As used in this section, unless

  9  otherwise specified, the following words or terms shall have

10  the meanings indicated:

11         (a)  "Adverse personnel action" means the discharge,

12  suspension, transfer, or demotion of any employee or the

13  withholding of bonuses, the reduction in salary or benefits,

14  or any other adverse action taken against an employee within

15  the terms and conditions of employment by an assisted living

16  facility or independent contractor.

17         (b)  "Agency" means any state, regional, county, local,

18  or municipal government entity, whether executive, judicial,

19  or legislative; or any official, officer, department,

20  division, bureau, commission, authority, or political

21  subdivision thereof.

22         (c)  "Employee" means a person who performs services

23  for, and under the control and direction of, or contracts

24  with, an assisted living facility or independent contractor

25  for wages or other remuneration.

26         (d)  "Gross mismanagement" means a continuous pattern

27  of managerial abuses, wrongful or arbitrary and capricious

28  actions, or fraudulent or criminal conduct which may have a

29  substantial adverse economic impact.

30

31

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  1         (e)  "Independent contractor" means a person who is

  2  engaged in any business and enters into a contract with an

  3  assisted living facility.

  4         (4)  ACTIONS PROHIBITED.--

  5         (a)  An assisted living facility or an independent

  6  contractor shall not dismiss, discipline, or take any other

  7  adverse personnel action against an employee for disclosing

  8  information pursuant to the provisions of this section.

  9         (b)  An assisted living facility or an independent

10  contractor shall not take any adverse action that affects the

11  rights or interests of a person in retaliation for the

12  person's disclosure of information under this section.

13         (c)  The provisions of this subsection shall not be

14  applicable when an employee or person discloses information

15  known by the employee or person to be false.

16         (5)  NATURE OF INFORMATION DISCLOSED.--The information

17  disclosed under this section must include:

18         (a)  Any violation or suspected violation of any

19  federal, state, or local law, rule, or regulation committed by

20  an employee or agent of an assisted living facility or

21  independent contractor which creates and presents a

22  substantial and specific danger to the assisted living

23  facility resident's health, safety, or welfare.

24         (b)  Any act or suspected act of gross mismanagement,

25  malfeasance, misfeasance, gross waste of public funds, or

26  gross neglect of duty committed by an employee or agent of an

27  assisted living facility or independent contractor.

28         (6)  TO WHOM INFORMATION DISCLOSED.--The information

29  disclosed under this section must be disclosed to any agency

30  or Federal Government entity or person designated in s.

31

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  1  400.022(1)(c) having the authority to investigate, police,

  2  manage, or otherwise remedy the violation or act.

  3         (7)  EMPLOYEES AND PERSONS PROTECTED.--This section

  4  protects employees and persons who disclose information on

  5  their own initiative in a written and signed complaint; who

  6  are requested to participate in an investigation, hearing, or

  7  other inquiry conducted by any agency or Federal Government

  8  entity; who refuse to participate in any adverse action

  9  prohibited by this section; or who initiate a complaint

10  through any appropriate complaint hotline. No remedy or other

11  protection under this section applies to any person who has

12  committed or intentionally participated in committing the

13  violation or suspected violation for which protection under

14  this section is being sought.

15         (8)  REMEDIES.--Any person protected by this section

16  may bring a civil action in any court of competent

17  jurisdiction against an assisted living facility for any

18  action prohibited by this section.

19         (9)  RELIEF.--In any action brought under this section,

20  the relief may include the following:

21         (a)  Reinstatement of the employee to the same position

22  held before the adverse action was commenced or to an

23  equivalent position, or reasonable front pay as alternative

24  relief.

25         (b)  Reinstatement of the employee's full fringe

26  benefits and seniority rights, as appropriate.

27         (c)  Compensation, if appropriate, for lost wages, lost

28  benefits, or other lost remuneration caused by the adverse

29  action.

30         (d)  Payment of reasonable costs, including attorney's

31  fees, to a substantially prevailing employee, or to the

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  1  prevailing employer if the employee filed a frivolous action

  2  in bad faith.

  3         (e)  Issuance of an injunction, if appropriate, by a

  4  court of competent jurisdiction.

  5         (f)  Temporary reinstatement to the employee's former

  6  position or to an equivalent position, pending the final

  7  outcome on the complaint, if an employee complains of being

  8  discharged in retaliation for a protected disclosure and if a

  9  court of competent jurisdiction determines that the disclosure

10  was not made in bad faith or for a wrongful purpose or

11  occurred after an assisted living facility's or independent

12  contractor's initiation of a personnel action against the

13  employee which includes documentation of the employee's

14  violation of a disciplinary standard or performance

15  deficiency.

16         (10)  DEFENSES.--It shall be an affirmative defense to

17  any action brought pursuant to this section that the adverse

18  action was predicated upon grounds other than, and would have

19  been taken absent, the employee's or person's exercise of

20  rights protected by this section.

21         (11)  EXISTING RIGHTS.--This section does not diminish

22  the rights, privileges, or remedies of an employee under any

23  other law or rule or under any collective bargaining agreement

24  or employment contract.

25         Section 36.  Section 400.449, Florida Statutes, is

26  created to read:

27         400.449  Altering, defacing, or falsifying records;

28  penalties.--

29         (1)  Any person who fraudulently alters, defaces, or

30  falsifies any medical, care, or other record of an assisted

31  living facility, or causes or procures any such offense to be

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  1  committed, commits a misdemeanor of the second degree,

  2  punishable as provided in s. 775.082 or s. 775.083.

  3         (2)  A conviction under subsection (1) is also grounds

  4  for restriction, suspension, or termination of such person's

  5  license or certification privileges.

  6         Section 37.  Paragraph (b) of subsection (2) of section

  7  409.908, Florida Statutes, is amended to read:

  8         409.908  Reimbursement of Medicaid providers.--Subject

  9  to specific appropriations, the agency shall reimburse

10  Medicaid providers, in accordance with state and federal law,

11  according to methodologies set forth in the rules of the

12  agency and in policy manuals and handbooks incorporated by

13  reference therein.  These methodologies may include fee

14  schedules, reimbursement methods based on cost reporting,

15  negotiated fees, competitive bidding pursuant to s. 287.057,

16  and other mechanisms the agency considers efficient and

17  effective for purchasing services or goods on behalf of

18  recipients.  Payment for Medicaid compensable services made on

19  behalf of Medicaid eligible persons is subject to the

20  availability of moneys and any limitations or directions

21  provided for in the General Appropriations Act or chapter 216.

22  Further, nothing in this section shall be construed to prevent

23  or limit the agency from adjusting fees, reimbursement rates,

24  lengths of stay, number of visits, or number of services, or

25  making any other adjustments necessary to comply with the

26  availability of moneys and any limitations or directions

27  provided for in the General Appropriations Act, provided the

28  adjustment is consistent with legislative intent.

29         (2)

30         (b)  Subject to any limitations or directions provided

31  for in the General Appropriations Act, the agency shall

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  1  establish and implement a Florida Title XIX Long-Term Care

  2  Reimbursement Plan (Medicaid) for nursing home care in order

  3  to provide care and services in conformance with the

  4  applicable state and federal laws, rules, regulations, and

  5  quality and safety standards and to ensure that individuals

  6  eligible for medical assistance have reasonable geographic

  7  access to such care. The agency shall amend the long-term care

  8  reimbursement plan to create a direct care and indirect care

  9  patient component. These two subcomponents together shall

10  equal the patient care component of the per diem rate. The

11  direct care subcomponent shall include only the salaries and

12  employee benefits of direct care staff who provide nursing

13  services to the residents of the nursing facility. "Direct

14  care staff" is defined for this purpose as registered nurses,

15  licensed practical nurses, and certified nurse assistants who

16  deliver care directly to residents in nursing home facilities.

17  There shall be no cost directly or indirectly allocated to the

18  direct care subcomponent from a home office or management

19  company. Separate cost-based class ceilings shall be

20  calculated for each patient care subcomponent, and the direct

21  care subcomponent shall be limited by the cost-based class

22  ceiling and the indirect care subcomponent shall be limited by

23  the individual provider target, target rate class ceiling, or

24  the cost-based ceiling. The agency shall make the required

25  changes to the nursing home cost reporting forms to implement

26  this requirement effective January 1, 2002. Under the plan,

27  interim rate adjustments shall not be granted to reflect

28  increases in the cost of general or professional liability

29  insurance for nursing homes unless the following criteria are

30  met: have at least a 65 percent Medicaid utilization in the

31  most recent cost report submitted to the agency, and the

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  1  increase in general or professional liability costs to the

  2  facility for the most recent policy period affects the total

  3  Medicaid per diem by at least 5 percent. This rate adjustment

  4  shall not result in the per diem exceeding the class ceiling.

  5  This provision shall apply only to fiscal year 2000-2001 and

  6  shall be implemented to the extent existing appropriations are

  7  available. The agency shall report to the Governor, the

  8  Speaker of the House of Representatives, and the President of

  9  the Senate by December 31, 2000, on the cost of liability

10  insurance for Florida nursing homes for fiscal years 1999 and

11  2000 and the extent to which these costs are not being

12  compensated by the Medicaid program. Medicaid-participating

13  nursing homes shall be required to report to the agency

14  information necessary to compile this report. Effective no

15  earlier than the rate-setting period beginning April 1, 1999,

16  the agency shall establish a case-mix reimbursement

17  methodology for the rate of payment for long-term care

18  services for nursing home residents. The agency shall compute

19  a per diem rate for Medicaid residents, adjusted for case mix,

20  which is based on a resident classification system that

21  accounts for the relative resource utilization by different

22  types of residents and which is based on level-of-care data

23  and other appropriate data. The case-mix methodology developed

24  by the agency shall take into account the medical, behavioral,

25  and cognitive deficits of residents. In developing the

26  reimbursement methodology, the agency shall evaluate and

27  modify other aspects of the reimbursement plan as necessary to

28  improve the overall effectiveness of the plan with respect to

29  the costs of patient care, operating costs, and property

30  costs. In the event adequate data are not available, the

31  agency is authorized to adjust the patient's care component or

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  1  the per diem rate to more adequately cover the cost of

  2  services provided in the patient's care component. The agency

  3  shall work with the Department of Elderly Affairs, the Florida

  4  Health Care Association, and the Florida Association of Homes

  5  for the Aging in developing the methodology. It is the intent

  6  of the Legislature that the reimbursement plan achieve the

  7  goal of providing access to health care for nursing home

  8  residents who require large amounts of care while encouraging

  9  diversion services as an alternative to nursing home care for

10  residents who can be served within the community. The agency

11  shall base the establishment of any maximum rate of payment,

12  whether overall or component, on the available moneys as

13  provided for in the General Appropriations Act. The agency may

14  base the maximum rate of payment on the results of

15  scientifically valid analysis and conclusions derived from

16  objective statistical data pertinent to the particular maximum

17  rate of payment.

18         Section 38.  Section 415.1111, Florida Statutes, is

19  amended to read:

20         415.1111  Civil actions.--A vulnerable adult who has

21  been abused, neglected, or exploited as specified in this

22  chapter has a cause of action against any perpetrator and may

23  recover actual and punitive damages for such abuse, neglect,

24  or exploitation.  The action may be brought by the vulnerable

25  adult, or that person's guardian, by a person or organization

26  acting on behalf of the vulnerable adult with the consent of

27  that person or that person's guardian, or by the personal

28  representative of the estate of a deceased victim without

29  regard to whether the cause of death resulted from the abuse,

30  neglect, or exploitation. The action may be brought in any

31  court of competent jurisdiction to enforce such action and to

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  1  recover actual and punitive damages for any deprivation of or

  2  infringement on the rights of a vulnerable adult.  A party who

  3  prevails in any such action may be entitled to recover

  4  reasonable attorney's fees, costs of the action, and damages.

  5  The remedies provided in this section are in addition to and

  6  cumulative with other legal and administrative remedies

  7  available to a vulnerable adult. This section shall not apply

  8  to civil actions for damages against licensees under parts II

  9  and III of chapter 400.

10         Section 39.  Subsection (3) of section 430.708, Florida

11  Statutes, is amended to read:

12         430.708  Certificate of need.--To ensure that Medicaid

13  community diversion pilot projects result in a reduction in

14  the projected average monthly nursing home caseload, the

15  agency shall, in accordance with the provisions of s.

16  408.034(4):

17         (3)  Adopt rules to reduce the number of beds in

18  Medicaid-participating nursing homes eligible for Medicaid,

19  through a Medicaid-selective contracting process or some other

20  appropriate method.

21         Section 40.  Subsections (2) and (3) of section

22  430.709, Florida Statutes, are amended to read:

23         430.709  Reports and evaluations.--

24         (2)  The agency, in consultation with the department,

25  shall contract for an independent evaluation of the community

26  diversion pilot projects.  Such evaluation must include a

27  careful review and assessment of the actual cost for the

28  provision of services to enrollees participants. No later than

29  120 days after the effective date of this section, the agency

30  shall select a contractor with experience and expertise in

31  evaluating capitation rates for managed care organizations

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  1  serving a disabled or frail elderly population to conduct the

  2  evaluation of the community diversion pilot project as defined

  3  in s. 430.703. The contractor shall demonstrate the capacity

  4  to evaluate managed care arrangements that seek to test the

  5  blending of Medicaid and Medicare capitation as a strategy to

  6  provide efficient, cost-effective care. The contractor shall

  7  report to the agency and the Legislature the specific array of

  8  services provided to each enrollee, the average number of

  9  times per week each service was provided, the unit cost and

10  total cost per week to provide the service, the total cost of

11  all services provided to the enrollee, and the enrollment

12  period for which total costs were calculated. In addition, the

13  contractor shall report to the agency and the Legislature the

14  total number of enrollees to date; the total payment to the

15  managed care organization for enrollees; the number of

16  enrollees who have been admitted to a nursing facility; the

17  total number of days enrollees have spent in nursing home

18  facilities; the number of enrollees who have disenrolled from

19  the project; the average length of time participants were

20  enrolled, expressed as the mean number of days and standard

21  deviation; the number of persons who disenrolled and

22  subsequently became a nursing home resident; the number of

23  enrollees who have died while enrolled in the project and the

24  mean number of days enrolled prior to death; the list of

25  available services delivered in-home by percentage of

26  enrollees receiving the service; the list of available

27  services delivered out-of-home by percentage of enrollees

28  receiving the service. The evaluation contractor shall analyze

29  and report the individual services and the array of services

30  most associated with effective diversion of frail elderly

31  enrollees from nursing home placement. Further, the contractor

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  1  will evaluate the project responses to at least the following

  2  questions:

  3         (a)  Was the cost of the diversion project per person

  4  less than the cost of providing services through

  5  fee-for-service Medicaid?

  6         (b)  Did the diversion project increase access to

  7  physical health care, mental health care, and social services?

  8         (c)  Did the diversion project maintain or improve the

  9  quality of care and quality of life of the participants?

10         (d)  What was the functional status of participants

11  before enrolling in the diversion project, and what was the

12  functional status at various points during and after

13  enrollment?

14         (e)  How many participants disenrolled and at what

15  point after enrolling?

16         (f)  Why did participants disenroll?

17         (g)  Did the department develop specialized contract

18  standards and quality assurance measures?

19         (h)  Did the department assess quality of care,

20  appropriateness of care claims data analysis and consumer

21  self-report data?

22         (i)  Does the cost analysis show savings to the state?

23         (j)  What were the results of recipient profile and

24  enrollment analyses?

25         (k)  What were the results of the family satisfaction

26  and consumer outcome analyses?

27         (l)  How did hospital admissions and preventable

28  readmissions differ among nursing home enrollees in the

29  diversion project, nursing home residents not in the project,

30  and frail elders living in the community? Did payer or

31

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  1  provider type have a significant relationship to the number of

  2  hospital admissions?

  3         (m)  What agencies or providers did the diversion

  4  project contractor engage to provide noninstitutional

  5  services?

  6         (n)  Was there a volume-outcome or dose-response

  7  relationship between the utilization rate of noninstitutional

  8  services, functional assessment, and the ability of the

  9  enrollee to remain in the community?

10         (3)  Subsequent to the completion of the evaluation and

11  submission of the evaluation report to the Legislature, the

12  agency, in consultation with the department, in consultation

13  with the agency, shall assess and make specific

14  recommendations to the Legislature as to the feasibility of

15  implementing a managed long-term care system throughout the

16  state to serve appropriate Medicaid-eligible long-term care

17  recipients age 60 years and older.

18         Section 41.  Subsection (3) of section 435.04, Florida

19  Statutes, is amended to read:

20         435.04  Level 2 screening standards.--

21         (3)  Standards must also ensure that the person:

22         (a)  For employees or employers licensed or registered

23  pursuant to chapter 400, does not have a confirmed report of

24  abuse, neglect, or exploitation as defined in s. 415.102(6),

25  which has been uncontested or upheld under s. 415.103.

26         (b)  has not committed an act that constitutes domestic

27  violence as defined in s. 741.30.

28         Section 42.  Paragraph (a) of subsection (1) of section

29  464.201, Florida Statutes, is amended to read:

30         464.201  Definitions.--As used in this part, the term:

31         (1)  "Approved training program" means:

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  1         (a)  A program offered by Enterprise Florida Jobs and

  2  Education Partnership Grant or a course of training conducted

  3  by a public sector or private sector educational center

  4  licensed by the Department of Education to implement the basic

  5  curriculum for nursing assistants which is approved by the

  6  Department of Education. Beginning October 1, 2000, the board

  7  shall assume responsibility for approval of training programs

  8  under this paragraph.

  9         Section 43.  Paragraph (e) is added to subsection (2)

10  of section 464.2085, Florida Statutes, to read:

11         464.2085  Council on Certified Nursing Assistants.--The

12  Council on Certified Nursing Assistants is created within the

13  department, under the Board of Nursing.

14         (2)  The council shall:

15         (e)  Develop special certifications or other

16  designations that indicate a certified nursing assistant's

17  advanced competence in significant areas of nursing home

18  practice including: care for persons with dementia, care at

19  the end of life, care for the mentally ill, care for persons

20  at risk of malnutrition or dehydration, transfer and movement

21  of persons with special needs, training as a mentor or coach

22  for newly hired certified nursing assistants, and such other

23  areas as determined by the council.

24         Section 44.  Subsection (1) of section 101.655, Florida

25  Statutes, is amended to read:

26         101.655  Supervised voting by absent electors in

27  certain facilities.--

28         (1)  The supervisor of elections of a county shall

29  provide supervised voting for absent electors residing in any

30  assisted living facility, as defined in s. 400.402, or nursing

31  home facility, as defined in s. 400.021, within that county at

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  1  the request of any administrator of such a facility. Such

  2  request for supervised voting in the facility shall be made by

  3  submitting a written request to the supervisor of elections no

  4  later than 21 days prior to the election for which that

  5  request is submitted.  The request shall specify the name and

  6  address of the facility and the name of the electors who wish

  7  to vote absentee in that election.  If the request contains

  8  the names of fewer than five voters, the supervisor of

  9  elections is not required to provide supervised voting.

10         Section 45.  Subsection (2) of section 397.405, Florida

11  Statutes, is amended to read:

12         397.405  Exemptions from licensure.--The following are

13  exempt from the licensing provisions of this chapter:

14         (2)  A nursing home facility as defined in s.

15  400.021(12).

16

17  The exemptions from licensure in this section do not apply to

18  any facility or entity which receives an appropriation, grant,

19  or contract from the state to operate as a service provider as

20  defined in this chapter or to any substance abuse program

21  regulated pursuant to s. 397.406.  No provision of this

22  chapter shall be construed to limit the practice of a

23  physician licensed under chapter 458 or chapter 459, a

24  psychologist licensed under chapter 490, or a psychotherapist

25  licensed under chapter 491, providing outpatient or inpatient

26  substance abuse treatment to a voluntary patient, so long as

27  the physician, psychologist, or psychotherapist does not

28  represent to the public that he or she is a licensed service

29  provider under this act. Failure to comply with any

30  requirement necessary to maintain an exempt status under this

31

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  1  section is a misdemeanor of the first degree, punishable as

  2  provided in s. 775.082 or s. 775.083.

  3         Section 46.  Subsection (3) of section 400.0069,

  4  Florida Statutes, is amended to read:

  5         400.0069  Local long-term care ombudsman councils;

  6  duties; membership.--

  7         (3)  In order to carry out the duties specified in

  8  subsection (2), the local ombudsman council is authorized,

  9  pursuant to ss. 400.19(1) and 400.434, to enter any long-term

10  care facility without notice or first obtaining a warrant,

11  subject to the provisions of s. 400.0073(7)(5).

12         Section 47.  The Auditor General shall develop a

13  standard chart of accounts to govern the content and manner of

14  presentation of financial information to be submitted by

15  Medicaid long-term care providers in their cost reports. The

16  Auditor General shall submit the standard chart of accounts to

17  the Agency for Health Care Administration not later than

18  December 31, 2001. The agency shall amend the Florida Title

19  XIX Long-Term Care Reimbursement Plan to incorporate this

20  standard chart of accounts and shall implement use of this

21  standard chart of accounts effective January 1, 2002. The

22  standard chart of accounts shall include specific accounts for

23  each component of direct care staff by type of personnel and

24  may not be revised without the written consent of the Auditor

25  General.

26         Section 48.  The Agency for Health Care Administration

27  shall amend the Medicaid Title XIX Long-Term Care

28  Reimbursement Plan effective December 31, 2001, to include the

29  following provisions:

30         (1)  COST REPORT FILING.--

31

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  1         (a)  Effective December 31, 2001, cost reports shall be

  2  submitted electronically in a format and manner prescribed by

  3  the agency.

  4         (b)  Effective with nursing facility cost reports filed

  5  for the period ended December 31, 2001, or after, the cost

  6  report shall contain detailed information on the salary,

  7  benefits, agency, and overtime costs and corresponding hours

  8  for direct care staffing for registered nurses, licensed

  9  practical nurses, and certified nursing assistants.

10         (2)  LIMITATIONS ON ALLOWABLE COSTS.--

11         (a)  Costs attributable to the membership in a nursing

12  home industry trade association shall be limited to a maximum

13  amount of $5 per bed per year prorated based on the percentage

14  of Medicaid patient days to total patient days for the

15  facility as an allowable Medicaid cost. Individual member dues

16  are not an allowable Medicaid cost.

17         (b)  Executive compensation included in home office

18  costs shall be limited to a maximum allowable per person

19  annual amount of $250,000 of compensation per year. A list of

20  executive compensation shall be included in the information

21  filing of the home office cost reports for any individual

22  whose total compensation exceeds $250,000 per year.

23         (c)  Costs attributable to legal settlements and jury

24  verdicts where there has been a finding or admission of

25  liability by the nursing home, or its owners, operators,

26  management companies, or employees, shall not be allowable

27  costs for Medicaid reimbursement purposes. Such costs include

28  legal costs, accounting fees, administrative costs,

29  investigative costs, travel costs, court costs, expert witness

30  costs, compensatory damage costs, punitive damage costs,

31

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  1  records and transcription costs, or any other cost associated

  2  with the settlement or verdict.

  3         (3)  RECOUPMENT.--Any provider participating in the

  4  Florida Medicaid nursing home program who has failed to

  5  provide the goods and services in accordance with federal and

  6  state requirements may be subject to recoupment of costs by

  7  the agency.

  8         Section 49.  The Board of Nursing is directed to

  9  develop standards and procedures for recognizing professional

10  nurses whose commitment to the practice of nursing in

11  long-term care settings is worthy of commendation.

12         Section 50.  The Agency for Health Care Administration

13  shall require that a portion of each nursing facility's

14  Medicaid rate be used exclusively for wage and benefit

15  increases for nursing home direct care staff. Such funds shall

16  be used only for actual wage or benefit improvements. Eligible

17  staff members include all direct care workers (including RNs,

18  LPNs, and CNAs) and all dietary, housekeeping, laundry, and

19  maintenance workers. Temporary, contract, agency, and pool

20  employees are excluded. The agency shall develop

21  cost-reporting systems to ensure that the funds the agency has

22  required to be used for wage and benefit increases for direct

23  care staff are used for this purpose. On January 1 of each

24  year, the agency shall report to the Legislature the effect of

25  such wage and benefit increases for employees in nursing

26  facilities in this state.

27         Section 51.  Subsection (11) of section 400.021,

28  Florida Statutes, as created by section 1 of chapter 2000-350,

29  Laws of Florida, is reenacted to read:

30         400.021  Definitions.--When used in this part, unless

31  the context otherwise requires, the term:

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  1         (11)  "Nursing home bed" means an accommodation which

  2  is ready for immediate occupancy, or is capable of being made

  3  ready for occupancy within 48 hours, excluding provision of

  4  staffing; and which conforms to minimum space requirements,

  5  including the availability of appropriate equipment and

  6  furnishings within the 48 hours, as specified by rule of the

  7  agency, for the provision of services specified in this part

  8  to a single resident.

  9         Section 52.  Section 400.0225, Florida Statutes, as

10  amended by section 2 of chapter 2000-350, Laws of Florida, is

11  reenacted to read:

12         400.0225  Consumer satisfaction surveys.--The agency,

13  or its contractor, in consultation with the nursing home

14  industry and consumer representatives, shall develop an

15  easy-to-use consumer satisfaction survey, shall ensure that

16  every nursing facility licensed pursuant to this part

17  participates in assessing consumer satisfaction, and shall

18  establish procedures to ensure that, at least annually, a

19  representative sample of residents of each facility is

20  selected to participate in the survey. The sample shall be of

21  sufficient size to allow comparisons between and among

22  facilities. Family members, guardians, or other resident

23  designees may assist the resident in completing the survey.

24  Employees and volunteers of the nursing facility or of a

25  corporation or business entity with an ownership interest in

26  the facility are prohibited from assisting a resident with or

27  attempting to influence a resident's responses to the consumer

28  satisfaction survey. The agency, or its contractor, shall

29  survey family members, guardians, or other resident designees.

30  The agency, or its contractor, shall specify the protocol for

31  conducting and reporting the consumer satisfaction surveys.

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  1  Reports of consumer satisfaction surveys shall protect the

  2  identity of individual respondents. The agency shall contract

  3  for consumer satisfaction surveys and report the results of

  4  those surveys in the consumer information materials prepared

  5  and distributed by the agency. The agency may adopt rules as

  6  necessary to administer this section.

  7         Section 53.  Subsections (3) and (8) of section

  8  400.0255, Florida Statutes, as amended by section 138 of

  9  chapter 2000-349, section 3 of chapter 2000-350, and section

10  58 of chapter 2000-367, Laws of Florida, are reenacted to

11  read:

12         400.0255  Resident transfer or discharge; requirements

13  and procedures; hearings.--

14         (3)  When a discharge or transfer is initiated by the

15  nursing home, the nursing home administrator employed by the

16  nursing home that is discharging or transferring the resident,

17  or an individual employed by the nursing home who is

18  designated by the nursing home administrator to act on behalf

19  of the administration, must sign the notice of discharge or

20  transfer. Any notice indicating a medical reason for transfer

21  or discharge must either be signed by the resident's attending

22  physician or the medical director of the facility, or include

23  an attached written order for the discharge or transfer. The

24  notice or the order must be signed by the resident's

25  physician, medical director, treating physician, nurse

26  practitioner, or physician assistant.

27         (8)  The notice required by subsection (7) must be in

28  writing and must contain all information required by state and

29  federal law, rules, or regulations applicable to Medicaid or

30  Medicare cases. The agency shall develop a standard document

31  to be used by all facilities licensed under this part for

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  1  purposes of notifying residents of a discharge or transfer.

  2  Such document must include a means for a resident to request

  3  the local long-term care ombudsman council to review the

  4  notice and request information about or assistance with

  5  initiating a fair hearing with the department's Office of

  6  Appeals Hearings. In addition to any other pertinent

  7  information included, the form shall specify the reason

  8  allowed under federal or state law that the resident is being

  9  discharged or transferred, with an explanation to support this

10  action. Further, the form shall state the effective date of

11  the discharge or transfer and the location to which the

12  resident is being discharged or transferred. The form shall

13  clearly describe the resident's appeal rights and the

14  procedures for filing an appeal, including the right to

15  request the local ombudsman council to review the notice of

16  discharge or transfer. A copy of the notice must be placed in

17  the resident's clinical record, and a copy must be transmitted

18  to the resident's legal guardian or representative and to the

19  local ombudsman council within 5 business days after signature

20  by the resident or resident designee.

21         Section 54.  Subsections (4) and (5) of section

22  400.141, Florida Statutes, as renumbered and amended by

23  section 4 of chapter 2000-350, Laws of Florida, are reenacted

24  to read:

25         400.141  Administration and management of nursing home

26  facilities.--Every licensed facility shall comply with all

27  applicable standards and rules of the agency and shall:

28         (4)  Provide for resident use of a community pharmacy

29  as specified in s. 400.022(1)(q). Any other law to the

30  contrary notwithstanding, a registered pharmacist licensed in

31  Florida, that is under contract with a facility licensed under

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  1  this chapter, shall repackage a nursing facility resident's

  2  bulk prescription medication which has been packaged by

  3  another pharmacist licensed in any state in the United States

  4  into a unit dose system compatible with the system used by the

  5  nursing facility, if the pharmacist is requested to offer such

  6  service. To be eligible for repackaging, a resident or the

  7  resident's spouse must receive prescription medication

  8  benefits provided through a former employer as part of his or

  9  her retirement benefits a qualified pension plan as specified

10  in s. 4972 of the Internal Revenue Code, a federal retirement

11  program as specified under 5 C.F.R. s. 831, or a long-term

12  care policy as defined in s. 627.9404(1). A pharmacist who

13  correctly repackages and relabels the medication and the

14  nursing facility which correctly administers such repackaged

15  medication under the provisions of this subsection shall not

16  be held liable in any civil or administrative action arising

17  from the repackaging. In order to be eligible for the

18  repackaging, a nursing facility resident for whom the

19  medication is to be repackaged shall sign an informed consent

20  form provided by the facility which includes an explanation of

21  the repackaging process and which notifies the resident of the

22  immunities from liability provided herein. A pharmacist who

23  repackages and relabels prescription medications, as

24  authorized under this subsection, may charge a reasonable fee

25  for costs resulting from the implementation of this provision.

26         (5)  Provide for the access of the facility residents

27  to dental and other health-related services, recreational

28  services, rehabilitative services, and social work services

29  appropriate to their needs and conditions and not directly

30  furnished by the licensee.  When a geriatric outpatient nurse

31  clinic is conducted in accordance with rules adopted by the

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  1  agency, outpatients attending such clinic shall not be counted

  2  as part of the general resident population of the nursing home

  3  facility, nor shall the nursing staff of the geriatric

  4  outpatient clinic be counted as part of the nursing staff of

  5  the facility, until the outpatient clinic load exceeds 15 a

  6  day.

  7

  8  Facilities that have been awarded a Gold Seal under the

  9  program established in s. 400.235 may develop a plan to

10  provide certified nursing assistant training as prescribed by

11  federal regulations and state rules and may apply to the

12  agency for approval of its program.

13         Section 55.  Subsection (2) of section 400.191, Florida

14  Statutes, as amended by section 5 of chapter 2000-350, Laws of

15  Florida, and subsection (6) of section 400.191, Florida

16  Statutes, as created by section 5 of chapter 2000-350, Laws of

17  Florida, are reenacted to read:

18         400.191  Availability, distribution, and posting of

19  reports and records.--

20         (2)  The agency shall provide additional information in

21  consumer-friendly printed and electronic formats to assist

22  consumers and their families in comparing and evaluating

23  nursing home facilities.

24         (a)  The agency shall provide an Internet site which

25  shall include at least the following information either

26  directly or indirectly through a link to another established

27  site or sites of the agency's choosing:

28         1.  A list by name and address of all nursing home

29  facilities in this state.

30         2.  Whether such nursing home facilities are

31  proprietary or nonproprietary.

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  1         3.  The current owner of the facility's license and the

  2  year that that entity became the owner of the license.

  3         4.  The name of the owner or owners of each facility

  4  and whether the facility is affiliated with a company or other

  5  organization owning or managing more than one nursing facility

  6  in this state.

  7         5.  The total number of beds in each facility.

  8         6.  The number of private and semiprivate rooms in each

  9  facility.

10         7.  The religious affiliation, if any, of each

11  facility.

12         8.  The languages spoken by the administrator and staff

13  of each facility.

14         9.  Whether or not each facility accepts Medicare or

15  Medicaid recipients or insurance, health maintenance

16  organization, Veterans Administration, CHAMPUS program, or

17  workers' compensation coverage.

18         10.  Recreational and other programs available at each

19  facility.

20         11.  Special care units or programs offered at each

21  facility.

22         12.  Whether the facility is a part of a retirement

23  community that offers other services pursuant to part III,

24  part IV, or part V.

25         13.  The results of consumer and family satisfaction

26  surveys for each facility, as described in s. 400.0225. The

27  results may be converted to a score or scores, which may be

28  presented in either numeric or symbolic form for the intended

29  consumer audience.

30         14.  Survey and deficiency information contained on the

31  Online Survey Certification and Reporting (OSCAR) system of

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  1  the federal Health Care Financing Administration, including

  2  annual survey, revisit, and complaint survey information, for

  3  each facility for the past 45 months.  For noncertified

  4  nursing homes, state survey and deficiency information,

  5  including annual survey, revisit, and complaint survey

  6  information for the past 45 months shall be provided.

  7         15.  A summary of the Online Survey Certification and

  8  Reporting (OSCAR) data for each facility over the past 45

  9  months. Such summary may include a score, rating, or

10  comparison ranking with respect to other facilities based on

11  the number of citations received by the facility of annual,

12  revisit, and complaint surveys; the severity and scope of the

13  citations; and the number of annual recertification surveys

14  the facility has had during the past 45 months. The score,

15  rating, or comparison ranking may be presented in either

16  numeric or symbolic form for the intended consumer audience.

17         (b)  The agency shall provide the following information

18  in printed form:

19         1.  A list by name and address of all nursing home

20  facilities in this state.

21         2.  Whether such nursing home facilities are

22  proprietary or nonproprietary.

23         3.  The current owner or owners of the facility's

24  license and the year that entity became the owner of the

25  license.

26         4.  The total number of beds, and of private and

27  semiprivate rooms, in each facility.

28         5.  The religious affiliation, if any, of each

29  facility.

30         6.  The name of the owner of each facility and whether

31  the facility is affiliated with a company or other

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  1  organization owning or managing more than one nursing facility

  2  in this state.

  3         7.  The languages spoken by the administrator and staff

  4  of each facility.

  5         8.  Whether or not each facility accepts Medicare or

  6  Medicaid recipients or insurance, health maintenance

  7  organization, Veterans Administration, CHAMPUS program, or

  8  workers' compensation coverage.

  9         9.  Recreational programs, special care units, and

10  other programs available at each facility.

11         10.  The results of consumer and family satisfaction

12  surveys for each facility, as described in s. 400.0225. The

13  results may be converted to a score or scores, which may be

14  presented in either numeric or symbolic form for the intended

15  consumer audience.

16         11.  The Internet address for the site where more

17  detailed information can be seen.

18         12.  A statement advising consumers that each facility

19  will have its own policies and procedures related to

20  protecting resident property.

21         13.  A summary of the Online Survey Certification and

22  Reporting (OSCAR) data for each facility over the past 45

23  months. Such summary may include a score, rating, or

24  comparison ranking with respect to other facilities based on

25  the number of citations received by the facility on annual,

26  revisit, and complaint surveys; the severity and scope of the

27  citations; the number of citations; and the number of annual

28  recertification surveys the facility has had during the past

29  45 months. The score, rating, or comparison ranking may be

30  presented in either numeric or symbolic form for the intended

31  consumer audience.

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  1         (c)  For purposes of this subsection, references to the

  2  Online Survey Certification and Reporting (OSCAR) system shall

  3  refer to any future system that the Health Care Financing

  4  Administration develops to replace the current OSCAR system.

  5         (d)  The agency may provide the following additional

  6  information on an Internet site or in printed form as the

  7  information becomes available:

  8         1.  The licensure status history of each facility.

  9         2.  The rating history of each facility.

10         3.  The regulatory history of each facility, which may

11  include federal sanctions, state sanctions, federal fines,

12  state fines, and other actions.

13         4.  Whether the facility currently possesses the Gold

14  Seal designation awarded pursuant to s. 400.235.

15         5.  Internet links to the Internet sites of the

16  facilities or their affiliates.

17         (6)  The agency may adopt rules as necessary to

18  administer this section.

19         Section 56.  Subsection (5) of section 400.23, Florida

20  Statutes, as amended by section 6 of chapter 2000-350, Laws of

21  Florida, is reenacted to read:

22         400.23  Rules; evaluation and deficiencies; licensure

23  status.--

24         (5)  The agency, in collaboration with the Division of

25  Children's Medical Services of the Department of Health, must,

26  no later than December 31, 1993, adopt rules for minimum

27  standards of care for persons under 21 years of age who reside

28  in nursing home facilities.  The rules must include a

29  methodology for reviewing a nursing home facility under ss.

30  408.031-408.045 which serves only persons under 21 years of

31  age. A facility may be exempt from these standards for

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  1  specific persons between 18 and 21 years of age, if the

  2  person's physician agrees that minimum standards of care based

  3  on age are not necessary.

  4         Section 57.  Paragraph (a) of subsection (3),

  5  subsection (4), and paragraph (e) of subsection (5) of section

  6  400.235, Florida Statutes, as amended by section 12 of chapter

  7  2000-305 and section 7 of chapter 2000-350, Laws of Florida,

  8  and subsection (9) of section 400.235, Florida Statutes, as

  9  created by section 7 of chapter 2000-350, are reenacted to

10  read:

11         400.235  Nursing home quality and licensure status;

12  Gold Seal Program.--

13         (3)(a)  The Gold Seal Program shall be developed and

14  implemented by the Governor's Panel on Excellence in Long-Term

15  Care which shall operate under the authority of the Executive

16  Office of the Governor. The panel shall be composed of three

17  persons appointed by the Governor, to include a consumer

18  advocate for senior citizens and two persons with expertise in

19  the fields of quality management, service delivery excellence,

20  or public sector accountability; three persons appointed by

21  the Secretary of Elderly Affairs, to include an active member

22  of a nursing facility family and resident care council and a

23  member of the University Consortium on Aging; the State

24  Long-Term Care Ombudsman; one person appointed by the Florida

25  Life Care Residents Association; one person appointed by the

26  Secretary of Health; two persons appointed by the Secretary of

27  Health Care Administration; one person appointed by the

28  Florida Association of Homes for the Aging; and one person

29  appointed by the Florida Health Care Association. Vacancies on

30  the panel shall be filled in the same manner as the original

31  appointments.

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  1         (4)  The panel shall consider the quality of care

  2  provided to residents when evaluating a facility for the Gold

  3  Seal Program. The panel shall determine the procedure or

  4  procedures for measuring the quality of care.

  5         (5)  Facilities must meet the following additional

  6  criteria for recognition as a Gold Seal Program facility:

  7         (e)  Have a stable workforce, as evidenced by a

  8  relatively low rate of turnover among certified nursing

  9  assistants and licensed nurses within the 30 months preceding

10  application for the Gold Seal Program, and demonstrate a

11  continuing effort to maintain a stable workforce and to reduce

12  turnover of licensed nurses and certified nursing assistants.

13

14  A facility assigned a conditional licensure status may not

15  qualify for consideration for the Gold Seal Program until

16  after it has operated for 30 months with no class I or class

17  II deficiencies and has completed a regularly scheduled

18  relicensure survey.

19         (9)  The agency may adopt rules as necessary to

20  administer this section.

21         Section 58.  The repeal of paragraph (h) of subsection

22  (5) of section 400.235, Florida Statutes, 1999, by section 7

23  of chapter 2000-350, Laws of Florida, is reenacted.

24         Section 59.  Subsection (1) of section 400.962, Florida

25  Statutes, as amended by section 8 of chapter 2000-350, Laws of

26  Florida, is reenacted to read:

27         400.962  License required; license application.--

28         (1)  It is unlawful to operate an intermediate care

29  facility for the developmentally disabled without a license.

30

31

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  1         Section 60.  Subsection (2) of section 397.405, Florida

  2  Statutes, as amended by section 9 of chapter 2000-350, Laws of

  3  Florida, is reenacted to read:

  4         397.405  Exemptions from licensure.--The following are

  5  exempt from the licensing provisions of this chapter:

  6         (2)  A nursing home facility as defined in s.

  7  400.021(12).

  8

  9  The exemptions from licensure in this section do not apply to

10  any facility or entity which receives an appropriation, grant,

11  or contract from the state to operate as a service provider as

12  defined in this chapter or to any substance abuse program

13  regulated pursuant to s. 397.406.  No provision of this

14  chapter shall be construed to limit the practice of a

15  physician licensed under chapter 458 or chapter 459, a

16  psychologist licensed under chapter 490, or a psychotherapist

17  licensed under chapter 491, providing outpatient or inpatient

18  substance abuse treatment to a voluntary patient, so long as

19  the physician, psychologist, or psychotherapist does not

20  represent to the public that he or she is a licensed service

21  provider under this act. Failure to comply with any

22  requirement necessary to maintain an exempt status under this

23  section is a misdemeanor of the first degree, punishable as

24  provided in s. 775.082 or s. 775.083.

25         Section 61.  Section 10 of chapter 2000-350, Laws of

26  Florida, is reenacted to read:

27         Section 10.  The Board of Pharmacy, in cooperation with

28  the Agency for Health Care Administration, shall undertake a

29  study of the feasibility, efficiency, cost-effectiveness, and

30  safety of using automated medication dispensing machines in

31  nursing facilities. The board and the agency may authorize the

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  1  establishment of demonstration projects in up to five nursing

  2  facilities with a class I institutional pharmacy as part of

  3  the study. Demonstration projects may be allowed to continue

  4  for up to 12 months. A report summarizing the results of the

  5  study shall be submitted by the board and the agency to the

  6  Speaker of the House of Representatives and the President of

  7  the Senate by January 1, 2001. If the study determines that

  8  such dispensing machines would benefit residents of nursing

  9  facilities and should be allowed, the report shall identify

10  those specific statutory changes necessary to allow nursing

11  facilities to use automated medication dispensing machines.

12         Section 62.  It is the intent of the Legislature that

13  the reenactment of statutes provided in this act is remedial

14  in nature and is not intended to conflict with any amendment

15  provided in this act to any of the statutes reenacted, but

16  merely serves to settle and provide relief from uncertainty

17  with respect to the provisions of chapter 2000-350, Laws of

18  Florida, relating to nursing homes and related health care

19  facilities, which chapter law may contain more than one

20  subject.

21         Section 63.  Effective July 1, 2001, the sum of

22  $948,782 is appropriated from the General Revenue Fund to the

23  Department of Elderly Affairs for the purpose of paying the

24  salaries and other administrative expenses of the Office of

25  State Long-Term Care Ombudsman to carry out the provisions of

26  this act during the 2001-2002 fiscal year.

27         Section 64.  Effective July 1, 2001, there is

28  appropriated from the General Revenue Fund for the Statewide

29  Public Guardianship Office established in part II, chapter

30  744, Florida Statutes, the sum of $100,000. The office shall

31  use the funds for training and for costs associated with

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  1  providing assistance to judicial circuits in development of

  2  local public guardianship programs, including public

  3  guardianship services for residents of long-term care

  4  facilities licensed under chapter 400, Florida Statutes.

  5         Section 65.  Except as otherwise provided herein, this

  6  act shall take effect upon becoming a law.

  7

  8

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

  2                          HOUSE SUMMARY

  3
      Provides requirements and procedures for civil actions to
  4    enforce the rights of nursing home and assisted living
      facility residents, including requirements for notice,
  5    investigation, arbitration, and appeal. Establishes
      "whistleblower" protections prohibiting retaliatory
  6    action against an employee who discloses certain
      information concerning a nursing home or assisted living
  7    facility, and provides rewards and penalties. Requires
      nursing homes to allow residents to install electronic
  8    monitoring devices in their rooms, and provides
      requirements and penalties. Revises requirements for
  9    nursing home license applications and grounds for denial.
      Provides or expands requirements relating to staff on
10    duty, assessment and care of residents, resident
      grievance procedures, recordkeeping, and reporting to the
11    Agency for Health Care Administration. Revises
      qualifications for nursing home personnel, including
12    medical directors, nursing personnel, and temporary
      nursing assistants. Provides for competency review,
13    inservice training, and competency designations for
      certified nursing assistants. Directs the Board of
14    Nursing to provide for commendations for professional
      nurses. Requires wage and benefit increases for nursing
15    home direct care staff. Expands grounds for
      administrative and other actions against a nursing home,
16    revises classifications of deficient practices, and
      revises penalties. Requires nursing homes to establish
17    internal risk management programs, and provides
      requirements for implementation, including reporting of
18    adverse incidents and access to and review of records.
      Provides penalties for altering, defacing, or falsifying
19    assisted living facility records. Revises Medicaid
      long-term care reimbursement requirements to provide for
20    direct care and indirect care subcomponents and cost
      reporting. Provides requirements for contracts for
21    independent evaluation of long-term care community
      diversion projects, and transfers contract responsibility
22    from the Department of Elderly Affairs to the agency.
      Requires the Auditor General to develop a standard chart
23    of accounts for Medicaid long-term care cost reporting.
      Requires the agency to amend the Medicaid Long-Term Care
24    Reimbursement Plan to include specified provisions.
      Reenacts nursing home law enacted by ch. 2000-350, Laws
25    of Florida, to settle a constitutional question. Provides
      appropriations. See bill for details.
26

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