Senate Bill sb0276e1
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 276 First Engrossed
1 A bill to be entitled
2 An act relating to nursing homes and related
3 health care facilities; amending s. 400.235,
4 F.S.; revising membership and terms of office
5 of the Governor's Panel on Excellence in
6 Long-Term Care; providing for selection of a
7 panel chairperson; amending s. 400.4195, F.S.;
8 providing conditions under which the
9 prohibition against payment of referral fees by
10 assisted living facilities does not apply;
11 authorizing the Agency for Health Care
12 Administration to adopt rules; amending s.
13 817.505, F.S.; providing that certain penalties
14 for patient brokering do not apply under such
15 conditions; providing an effective date.
16
17 Be It Enacted by the Legislature of the State of Florida:
18
19 Section 1. Paragraph (a) of subsection (3) of section
20 400.235, Florida Statutes, is amended to read:
21 400.235 Nursing home quality and licensure status;
22 Gold Seal Program.--
23 (3)(a)1. The Gold Seal Program shall be developed and
24 implemented by the Governor's Panel on Excellence in Long-Term
25 Care, which shall operate under the authority of the Executive
26 Office of the Governor. The panel shall be composed of the
27 following members:
28 a. A consumer advocate for senior citizens, appointed
29 by the Governor.
30
31
1
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 276 First Engrossed
1 b. Two persons having expertise in the field of
2 quality management, service-delivery excellence, or
3 public-sector accountability, appointed by the Governor.
4 c. A consumer advocate for senior citizens, appointed
5 by the Secretary of Elderly Affairs.
6 d. An active member of a nursing facility family and
7 resident care council, appointed by the Secretary of Elderly
8 Affairs.
9 e. A member of the University Consortium on Aging,
10 appointed by the Secretary of Elderly Affairs.
11 f. The State Long-Term Care Ombudsman.
12 g. A consumer advocate for senior citizens, appointed
13 by the Florida Life Care Residents Association.
14 h. A consumer advocate for senior citizens, appointed
15 by the Secretary of Health.
16 i. A consumer advocate for senior citizens, appointed
17 by the Secretary of the Agency for Health Care Administration.
18 j. The Deputy Secretary for Medicaid of the Agency for
19 Health Care Administration.
20 k. One person appointed by the Florida Association of
21 Homes for the Aging.
22 l. One person appointed by the Florida Health Care
23 Association.
24 m. A member of the Florida Silver Hair Legislature,
25 appointed by the Florida Silver Hair Legislature.
26 n. A member of the Florida Alliance for Retired
27 Americans, appointed by the Florida Alliance for Retired
28 Americans.
29 o. An elder-law attorney appointed by The Florida Bar.
30
31
2
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 276 First Engrossed
1 Persons serving on the panel on the effective date of this act
2 shall continue to serve and persons shall be appointed
3 according to the criteria described in sub-subparagraphs m.,
4 n., and o. for terms beginning October 1, 2002; however, for
5 the dual purpose of staggering the terms of the members and
6 maintaining continuity, the terms of the panel members serving
7 on the effective date of this act who were appointed according
8 to the criteria described in sub-subparagraphs b., d., g., i.,
9 and k. expire September 30, 2002, and terms of the panel
10 members serving on the effective date of this act who were
11 appointed according to the criteria described in
12 sub-subparagraphs a., c., e., h., and l. expire September 30,
13 2003. Thereafter, each appointive member shall be appointed
14 for a 4-year term in the same manner as the original
15 appointment. A person may not be appointed to serve more than
16 two consecutive 4-year terms. However, an appointee serving on
17 the effective date of this act is not eligible for
18 reappointment.
19 2. Panel members shall select the panel chairperson to
20 serve a 3-year term by a majority vote at the panel's first
21 meeting after all panel members have been appointed.
22 3. For the purposes of this paragraph, the term
23 "consumer advocate for senior citizens" means a person who:
24 a. Does not receive more than 20 percent of his or her
25 personal income from any business involved in the delivery of
26 long-term care services, from any attorney or law firm that
27 represents nursing home facilities or nursing home residents
28 in personal injury actions, or from any affiliated membership
29 organizations or corporations;
30
31
3
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 276 First Engrossed
1 b. Is not an employee of the Agency for Health Care
2 Administration, the Department of Health, or the Department of
3 Elderly Affairs; and
4 c. Is either a member of an organized senior advocacy
5 group or has had or currently has a relative in a nursing
6 home. three persons appointed by the Governor, to include a
7 consumer advocate for senior citizens and two persons with
8 expertise in the fields of quality management, service
9 delivery excellence, or public sector accountability; three
10 persons appointed by the Secretary of Elderly Affairs, to
11 include an active member of a nursing facility family and
12 resident care council and a member of the University
13 Consortium on Aging; the State Long-Term Care Ombudsman; one
14 person appointed by the Florida Life Care Residents
15 Association; one person appointed by the Secretary of Health;
16 two persons appointed by the Secretary of Health Care
17 Administration; one person appointed by the Florida
18 Association of Homes for the Aging; and one person appointed
19 by the Florida Health Care Association. Vacancies on the panel
20 shall be filled in the same manner as the original
21 appointments.
22 Section 2. Section 400.4195, Florida Statutes, is
23 amended to read:
24 400.4195 Rebates prohibited; penalties.--
25 (1) Except as provided in subsection (2), it is
26 unlawful for any assisted living facility, or any person or
27 agency employed by or contracting with the facility, licensed
28 under this part to contract or promise to pay or receive any
29 commission, bonus, kickback, or rebate or engage in any
30 split-fee arrangement in any form whatsoever with any health
31 care practitioner, health care facility, or other physician,
4
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 276 First Engrossed
1 surgeon, organization, agency, or person, either directly or
2 indirectly, for residents referred to an assisted living
3 facility licensed under this part.
4 (2)(a) A facility may employ or contract with persons
5 or agencies to market the facility for a fee or commission not
6 based on the volume or value of referrals to the facility.
7 Fees or commissions may be based on the volume or value of
8 referrals to the facility when:
9 (1) The payment is not subject to the provisions of 42
10 U.S.C. s. 1320a-7b;
11 (2) Payment to the contract provider is made under a
12 nonexclusive contract;
13 (3) The contract provider represents multiple
14 facilities with different owners;, provided
15 (4) The employee or contract provider clearly
16 indicates to all clients prior to referral that he or she
17 represents and is being compensated by the facility, in
18 addition to all other facilities represented by the person or
19 agency;
20 5. The employee or contract provider:
21 a. Is not a health care practitioner or employee,
22 vendor, or other contract provider of a health care facility
23 in a position to make referrals to an assisted living
24 facility;
25 b. Is not employed by a health care facility, social
26 service agency, or any other organization in a position to
27 make referrals to an assisted living facility;
28 c. Does not have an ownership interest in an assisted
29 living facility and is not related to a person with an
30 ownership interest in an assisted living facility;
31
5
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 276 First Engrossed
1 d. Does not contract with or pay a health care
2 facility, its employees, vendors, or other contract providers
3 for access to internal or external processes for discharge of
4 disabled persons over the age of 18 or frail and elderly
5 persons to assisted living facilities;
6 e. Cannot offer the client or referral any money or
7 gift of value as an enticement for services;
8 6. A level 2 background screening must be conducted
9 for the contract provider or related employees for the
10 purposes of conducting screening under chapter 435;
11 7. Referral is made to a licensed facility;
12 8. The contract does not require the facility or the
13 individual being referred to use any other services affiliated
14 with or owned in whole or in part by the contract provider;
15 9. The person referred remains a resident of the
16 facility for at least 90 days.
17 (b) As used in this section, the term:
18 1. "Facility" means an assisted living facility, as
19 defined in s. 400.402;
20 2. "Contract provider" means a person, agency,
21 organization, or corporation that contracts with a facility to
22 market that facility to potential residents;
23 3. "Health care facility" means the office of a health
24 care practitioner, a hospital licensed under chapter 395, a
25 long-term care hospital licensed under chapter 395 which meets
26 the requirements of 42 CFR s. 412.23(e), a skilled nursing
27 facility, a hospice, as defined in part IV of chapter 400, an
28 intermediate care facility for the developmentally disabled
29 licensed under chapter 393, or a community mental health
30 center licensed under chapter 394. A facility relying solely
31
6
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 276 First Engrossed
1 on spiritual means through prayer for healing is not a health
2 care facility;
3 4. "Health care practitioner" means a medical doctor
4 licensed under chapter 458, a doctor of osteopathy licensed
5 under chapter 459, a doctor of chiropractic medicine licensed
6 under chapter 460, a doctor of podiatric medicine licensed
7 under chapter 461, a doctor of dentistry licensed under
8 chapter 466, or another health care professional regulated by
9 the Department of Health;
10 (c)1. All contract providers must register with the
11 agency. If the agency determines that a contract provider does
12 not meet the requirements of this section, the registration
13 shall be denied. If a registrant fails to comply with this
14 section, the agency may revoke or suspend the registration.
15 2. As part of the registration process, the agency may
16 adopt by rule requirements for:
17 a. Reporting of activity by a contract provider; and
18 b. A process by which consumers or facilities may
19 register a complaint with the agency alleging a violation of
20 this section.
21 3. The agency may adopt by rule any necessary fee
22 structure to cover the cost of administering the registration
23 and reporting requirements.
24 (d)1. If the agency finds that any ground exists for
25 the revocation or suspension of a contract provider's
26 registration, the agency may, in lieu of revocation or
27 suspension, impose a fine upon the contract provider.
28 a. With respect to any nonwillful violation, the fine
29 may not exceed $1,000 per violation, not to exceed a total of
30 $10,000 for all nonwillful violations arising out of the same
31 action.
7
CODING: Words stricken are deletions; words underlined are additions.
CS for SB 276 First Engrossed
1 b. With respect to any knowing and willful violation,
2 the fine may not exceed $10,000 for each violation, not to
3 exceed a total of $100,000 for all knowing and willful
4 violations arising out of the same action.
5 2. The agency must adopt by rule penalty categories
6 that specify varying ranges of monetary fines for willful and
7 nonwillful violations.
8 3. The agency may also refer the contract provider to
9 the appropriate law enforcement agency for enforcement under
10 subsection (5).
11 (3) A person or agency independent of and not under
12 contract with a the facility may provide placement or referral
13 services for a fee to individuals seeking assistance in
14 finding a suitable facility; however, any fee paid for
15 placement or referral services must be paid by the individual
16 looking for a facility, not by the facility.
17 (4) The agency shall adopt rules to implement this
18 section.
19 (5)(2) A violation of this section shall be considered
20 patient brokering and is punishable as provided in s. 817.505.
21 Section 3. Paragraph (j) is added to subsection (3) of
22 section 817.505, Florida Statutes, to read:
23 817.505 Patient brokering prohibited; exceptions;
24 penalties.--
25 (3) This section shall not apply to:
26 (j) Services authorized in s. 400.4195(2).
27 Section 4. This act shall take effect upon becoming a
28 law.
29
30
31
8
CODING: Words stricken are deletions; words underlined are additions.