Senate Bill sb2390
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    Florida Senate - 2005                                  SB 2390
    By Senator Campbell
    32-916C-05
  1                      A bill to be entitled
  2         An act relating to nursing home facilities;
  3         amending s. 400.021, F.S.; defining additional
  4         terms related to nursing home facilities;
  5         amending s. 400.023, F.S.; requiring a resident
  6         or the resident's legal representative to
  7         include a certificate of compliance when a
  8         complaint alleging a violation of a resident's
  9         rights is filed with the clerk of court;
10         amending s. 400.0233, F.S.; requiring that the
11         presuit notice of a claim against a nursing
12         home facility be given to each prospective
13         defendant; requiring that certain specified
14         information be included with the notice;
15         providing that a defendant may request
16         voluntary binding arbitration; authorizing the
17         parties to toll designated time periods in
18         order to mediate issues of liability and
19         damages; amending s. 400.0234, F.S.; specifying
20         that failing to provide certain records waives
21         certain requirements; creating s. 400.02342,
22         F.S.; providing that any party may elect to
23         participate in voluntary binding arbitration;
24         providing procedures to initiate and conduct a
25         voluntary binding arbitration; requiring that a
26         claimant agree to a damage award; providing
27         exceptions and limitations; authorizing the
28         Division of Administrative Hearings to adopt
29         rules; authorizing the division to levy
30         specified sanctions; authorizing the division
31         to charge a party requesting binding
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 1         arbitration an administrative fee; permitting
 2         the parties to use private arbitrators;
 3         creating s. 400.02343, F.S.; requiring multiple
 4         defendants to a binding arbitration proceeding
 5         to apportion a damage award through a second
 6         arbitration proceeding; providing arbitration
 7         procedures for apportioning damage awards;
 8         providing that a participant has a cause of
 9         action for contribution from other defendants;
10         creating s. 400.02344, F.S.; providing
11         consequences for a claimant or defendant that
12         fails to offer or rejects an offer to
13         participate in binding arbitration; prescribing
14         limitations if a party wishes to proceed to
15         trial; creating s. 400.02345, F.S.; providing
16         procedures for determining if a specific claim
17         is subject to binding arbitration; creating s.
18         400.02347, F.S.; requiring a defendant to pay a
19         damage award within a specified time period;
20         creating s. 400.02348, F.S.; providing for an
21         appeal of an arbitration or apportionment
22         award; providing that an appeal does not stay
23         an arbitration or apportionment award;
24         permitting a party to an arbitration or
25         apportionment proceeding to enforce an
26         arbitration award or an apportionment of
27         financial responsibility; providing enforcement
28         procedures; providing exceptions; amending s.
29         400.141, F.S.; requiring a nursing home
30         facility to maintain general and professional
31         liability insurance with specified insurance
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 1         carriers; providing alternative methods to
 2         establish financial responsibility for claims
 3         filed against the nursing home; directing that
 4         the amount of financial responsibility be
 5         increased by the annual rate of inflation;
 6         providing exceptions; amending s. 400.151,
 7         F.S.; providing criteria for a resident's
 8         contract which include arbitration or
 9         dispute-resolution provisions; requiring
10         prominent notice of arbitration provisions;
11         requiring notice of which claims are subject to
12         arbitration; amending s. 409.907, F.S.;
13         prohibiting the Agency for Health Care
14         Administration from renewing a Medicaid
15         provider agreement with a chronically
16         poor-performing nursing home facility after a
17         specified date; providing that a chronically
18         poor-performing nursing home facility may not
19         participate in voluntary binding arbitration
20         after a specified date; amending s. 409.908,
21         F.S.; deleting obsolete provisions; requiring
22         the agency to recognize increases in the costs
23         of professional liability insurance by
24         providing a pass-through of professional
25         liability insurance in a specified amount;
26         authorizing the agency to impose an assessment
27         fee for quality assurance; amending s. 400.147,
28         F.S.; conforming a cross-reference; reenacting
29         s. 430.80(3)(h), F.S., relating to a teaching
30         nursing home pilot project, to incorporate the
31         amendment made to s. 400.141, F.S., in a
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 1         reference thereto; requiring that arbitration
 2         limits be adjusted annually for inflation;
 3         providing legislative intent that the Agency
 4         for Health Care Administration not renew a
 5         Medicaid provider agreement with a nursing home
 6         facility that has a pattern of harming its
 7         residents; directing the agency to consult with
 8         certain specified private organizations to
 9         identify and improve poor-performing nursing
10         homes; requiring the agency to prepare a report
11         of the Medicaid Up-or-Out Program; providing
12         legislative intent that a study be conducted by
13         the Institute on Aging at the University of
14         South Florida of all federal and state
15         enforcement sanctions and remedies available to
16         the agency to use with nursing home facilities;
17         providing the subjects to be studied; requiring
18         that a report of the findings of the study be
19         submitted by a specified date; requiring the
20         Agency for Health Care Administration to
21         establish a health care quality improvement
22         system for nursing home facilities; providing
23         guidelines; requiring each nursing home
24         facility to pay an annual assessment on each
25         licensed bed after a specified date; providing
26         for the use of the funds collected; providing a
27         method by which the assessment will be
28         determined; providing for nonseverability;
29         providing effective dates.
30  
31  Be It Enacted by the Legislature of the State of Florida:
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 1         Section 1.  Section 400.021, Florida Statutes, is
 2  amended to read:
 3         400.021  Definitions.--When used in this part, unless
 4  the context otherwise requires, the term:
 5         (1)  "Administrator" means the licensed individual who
 6  has the general administrative charge of a facility.
 7         (2)  "Agency" means the Agency for Health Care
 8  Administration, which is the licensing agency under this part.
 9         (3)  "Bed reservation policy" means the number of
10  consecutive days and the number of days per year that a
11  resident may leave the nursing home facility for overnight
12  therapeutic visits with family or friends or for
13  hospitalization for an acute condition before the licensee may
14  discharge the resident due to his or her absence from the
15  facility.
16         (4)  "Board" means the Board of Nursing Home
17  Administrators.
18         (5)  "Claim for resident's rights violation or
19  negligence" means a negligence claim alleging injury to or the
20  death of a resident arising out of an asserted violation of
21  the rights of a resident under s. 400.022 or an asserted
22  deviation from the applicable standard of care. At the time of
23  the filing of the notice of claim and based on information
24  provided to the claimant or claimant's representative, all
25  known incidents,regardless of origin, alleged to have caused
26  injury or damages to the resident must be included. This
27  subsection does not abrogate the rights of parties to amend
28  claims subject to the Florida Rules of Civil Procedure. No
29  further presuit requirement will be applicable if the new
30  information should have been provided to the claimant or the
31  claimant's representative.
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 1         (6)  "Claimant" means a person, including a decedent's
 2  estate, filing a claim for a violation of the rights of a
 3  resident or negligence under this chapter. All persons
 4  claiming to have sustained damages as a result of the bodily
 5  injury or death of a resident are considered a single claimant
 6  with the exception of minor children.
 7         (7)(5)  "Controlling interest" means:
 8         (a)  The applicant for licensure or a licensee;
 9         (b)  A person or entity that serves as an officer of,
10  is on the board of directors of, or has a 5 percent or greater
11  ownership interest in the management company or other entity,
12  related or unrelated, which the applicant or licensee may
13  contract with to operate the facility; or
14         (c)  A person or entity that serves as an officer of,
15  is on the board of directors of, or has a 5 percent or greater
16  ownership interest in the applicant or licensee.
17  
18  The term does not include a voluntary board member.
19         (8)(6)  "Custodial service" means care for a person
20  which entails observation of diet and sleeping habits and
21  maintenance of a watchfulness over the general health, safety,
22  and well-being of the aged or infirm.
23         (9)(7)  "Department" means the Department of Children
24  and Family Services.
25         (10)  "Economic damages" means a financial loss that
26  would not have occurred but for the injury giving rise to that
27  cause of action. The term includes, but is not limited to,
28  past and future medical expenses, 80 percent of the claimant's
29  wage loss, and the loss of earning capacity to the extent the
30  claimant is entitled to recover these damages under general
31  
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    32-916C-05
 1  law, including the Wrongful Death Act, s. 46.021, or s.
 2  400.023.
 3         (11)(8)  "Facility" means any institution, building,
 4  residence, private home, or other place, whether operated for
 5  profit or not, including a place operated by a county or
 6  municipality, which undertakes through its ownership or
 7  management to provide for a period exceeding 24-hour nursing
 8  care, personal care, or custodial care for three or more
 9  persons not related to the owner or manager by blood or
10  marriage, who by reason of illness, physical infirmity, or
11  advanced age require such services, but does not include any
12  place providing care and treatment primarily for the acutely
13  ill. A facility offering services for fewer than three persons
14  is within the meaning of this definition if it holds itself
15  out to the public to be an establishment which regularly
16  provides such services.
17         (12)  "Financial responsibility" means demonstrating
18  the minimum financial responsibility requirements as provided
19  in s. 400.141(20).
20         (13)(9)  "Geriatric outpatient clinic" means a site for
21  providing outpatient health care to persons 60 years of age or
22  older, which is staffed by a registered nurse or a physician
23  assistant.
24         (14)(10)  "Geriatric patient" means any patient who is
25  60 years of age or older.
26         (15)  "Incident" means any event, action, or conduct
27  alleged to have caused injury or damages to the resident while
28  in the control of the facility.
29         (16)  "Insurer" means any self-insurer authorized under
30  s. 627.357, liability insurance carrier, joint underwriting
31  association, or uninsured prospective defendant.
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 1         (17)(11)  "Local ombudsman council" means a local
 2  long-term care ombudsman council established under pursuant to
 3  s. 400.0069, located within the Older Americans Act planning
 4  and service areas.
 5         (18)  "Noneconomic damages" means nonfinancial losses
 6  that would not have occurred but for the injury giving rise to
 7  the cause of action, including bodily injury, pain and
 8  suffering, disability, scarring, inconvenience, physical
 9  impairment, mental anguish, disfigurement, loss of capacity
10  for enjoyment of life, and other nonfinancial losses to the
11  extent the claimant is entitled to recover such damages under
12  general law, including such noneconomic damages under the
13  Wrongful Death Act, s. 46.021, or s. 400.023.
14         (19)(12)  "Nursing home bed" means an accommodation
15  which is ready for immediate occupancy, or is capable of being
16  made ready for occupancy within 48 hours, excluding provision
17  of staffing; and which conforms to minimum space requirements,
18  including the availability of appropriate equipment and
19  furnishings within the 48 hours, as specified by rule of the
20  agency, for the provision of services specified in this part
21  to a single resident.
22         (20)(13)  "Nursing home facility" means any facility
23  which provides nursing services as defined in part I of
24  chapter 464 and which is licensed according to this part.
25         (21)(14)  "Nursing service" means such services or acts
26  as may be rendered, directly or indirectly, to and in behalf
27  of a person by individuals as defined in s. 464.003.
28         (22)(15)  "Planning and service area" means the
29  geographic area in which the Older Americans Act programs are
30  administered and services are delivered by the Department of
31  Elderly Affairs.
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 1         (23)(16)  "Respite care" means admission to a nursing
 2  home for the purpose of providing a short period of rest or
 3  relief or emergency alternative care for the primary caregiver
 4  of an individual receiving care at home who, without
 5  home-based care, would otherwise require institutional care.
 6         (24)(17)  "Resident care plan" means a written plan
 7  developed, maintained, and reviewed not less than quarterly by
 8  a registered nurse, with participation from other facility
 9  staff and the resident or his or her designee or legal
10  representative, which includes a comprehensive assessment of
11  the needs of an individual resident; the type and frequency of
12  services required to provide the necessary care for the
13  resident to attain or maintain the highest practicable
14  physical, mental, and psychosocial well-being; a listing of
15  services provided within or outside the facility to meet those
16  needs; and an explanation of service goals. The resident care
17  plan must be signed by the director of nursing or another
18  registered nurse employed by the facility to whom
19  institutional responsibilities have been delegated and by the
20  resident, the resident's designee, or the resident's legal
21  representative. The facility may not use an agency or
22  temporary registered nurse to satisfy the foregoing
23  requirement and must document the institutional
24  responsibilities that have been delegated to the registered
25  nurse.
26         (25)(18)  "Resident designee" means a person, other
27  than the owner, administrator, or employee of the facility,
28  designated in writing by a resident or a resident's guardian,
29  if the resident is adjudicated incompetent, to be the
30  resident's representative for a specific, limited purpose.
31  
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 1         (26)(19)  "State ombudsman council" means the State
 2  Long-Term Care Ombudsman Council established under pursuant to
 3  s. 400.0067.
 4         (27)(20)  "Voluntary board member" means a director of
 5  a not-for-profit corporation or organization who serves solely
 6  in a voluntary capacity for the corporation or organization,
 7  does not receive any remuneration for his or her services on
 8  the board of directors, and has no financial interest in the
 9  corporation or organization. The agency shall recognize a
10  person as a voluntary board member following submission of a
11  statement to the agency by the director and the not-for-profit
12  corporation or organization which affirms that the director
13  conforms to this definition. The statement affirming the
14  status of the director must be submitted to the agency on a
15  form provided by the agency.
16         Section 2.  Subsections (4) and (6) of section 400.023,
17  Florida Statutes, are amended to read:
18         400.023  Civil enforcement.--
19         (4)  A licensee is liable for In any claim for
20  resident's rights violation or negligence by a nurse licensed
21  under part I of chapter 464 who is practicing under the
22  direction of the licensee. The, such nurse shall have the duty
23  to exercise care consistent with the prevailing professional
24  standard of care for a nurse. The prevailing professional
25  standard of care for a nurse shall be that level of care,
26  skill, and treatment which, in light of all relevant
27  surrounding circumstances, is recognized as acceptable and
28  appropriate by reasonably prudent similar nurses.
29         (6)  The resident or the resident's legal
30  representative shall serve a copy of any complaint alleging in
31  whole or in part a violation of any rights specified in this
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 1  part to the Agency for Health Care Administration at the time
 2  of filing the initial complaint with the clerk of the court
 3  for the county in which the action is pursued. The initial
 4  complaint must contain a certificate certifying compliance
 5  with this subsection. The requirement of providing a copy of
 6  the complaint to the agency and certifying compliance with
 7  this subsection does not impair the resident's legal rights or
 8  ability to seek relief for his or her claim.
 9         Section 3.  Section 400.0233, Florida Statutes, is
10  amended to read:
11         400.0233  Presuit notice; investigation; notification
12  of violation of resident's rights or alleged negligence;
13  claims evaluation procedure; informal discovery; review;
14  settlement offer; mediation.--
15         (1)  As used in this section, the term:
16         (a)  "Claim for resident's rights violation or
17  negligence" means a negligence claim alleging injury to or the
18  death of a resident arising out of an asserted violation of
19  the rights of a resident under s. 400.022 or an asserted
20  deviation from the applicable standard of care.
21         (b)  "Insurer" means any self-insurer authorized under
22  s. 627.357, liability insurance carrier, joint underwriting
23  association, or uninsured prospective defendant.
24         (1)(2)  A claimant's initial notice Prior to filing a
25  claim for a violation of a resident's rights or a claim for
26  negligence, a claimant alleging injury to or the death of a
27  resident shall be provided to notify each prospective
28  defendant by certified mail, return receipt requested,
29  asserting a of an asserted violation of a resident's rights
30  provided in s. 400.022 or deviation from the standard of care.
31  The Such notification must be made before filing a claim and
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 1  it must shall include an identification of the rights the
 2  prospective defendant has violated and the negligence alleged
 3  to have caused the incident or incidents and a brief
 4  description of the injuries sustained by the resident which
 5  are reasonably identifiable at the time of notice. The notice
 6  shall contain a certificate of counsel that counsel's
 7  reasonable investigation gave rise to a good faith belief that
 8  grounds exist for an action against each prospective
 9  defendant. The notice of intent must contain a
10  medical-information release that allows a defendant, or his or
11  her legal representative, to obtain all medical records
12  potentially relevant to the claimant's alleged injury,
13  including all records of nonparty care, death certificates,
14  autopsy records, and other records related to the claim. If
15  the initial notice of claim does not contain a medical release
16  as required in this subsection, the time for the defendant to
17  submit a written response under paragraph (2)(b) is tolled
18  until the release is given to the defendant. Once the
19  defendant receives the release from the claimant, the
20  defendant has the remainder of the 75-day time period in which
21  to exercise the options described in paragraph (b).
22         (2)(a)(3)(a)  A No suit may not be filed for a period
23  of 75 days after notice is mailed to any prospective
24  defendant. During the 75-day period, the prospective
25  defendants or their insurers shall conduct an evaluation of
26  the claim to determine the liability of each defendant and to
27  evaluate the damages of the claimants. Each defendant or
28  insurer of the defendant shall have a procedure for the prompt
29  evaluation of claims during the 75-day period. The procedure
30  must shall include one or more of the following:
31  
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 1         1.  Internal review by a duly qualified facility risk
 2  manager or claims adjuster;
 3         2.  Internal review by counsel for each prospective
 4  defendant;
 5         3.  A quality assurance committee authorized under any
 6  applicable state or federal statutes or regulations; or
 7         4.  Any other similar procedure that fairly and
 8  promptly evaluates the claims.
 9  
10  Each defendant or insurer of the defendant shall evaluate the
11  claim in good faith.
12         (b)  At or before the end of the 75 days, the defendant
13  or insurer of the defendant shall provide the claimant with a
14  written response:
15         1.  Rejecting the claim; or
16         2.  Making a settlement offer; or
17         3.  Making an offer to voluntarily arbitrate under s.
18  400.02342 in which liability is admitted and binding
19  arbitration is conducted only on the issue of damages. The
20  offer to arbitrate may be made contingent upon limiting
21  general damages. A request for voluntary binding arbitration
22  does not prevent the parties from continued settlement
23  discussions or settlement offers.
24         (c)  The response shall be delivered to the claimant if
25  not represented by counsel or to the claimant's attorney, by
26  certified mail, return receipt requested.  Failure of the
27  prospective defendant or insurer of the defendant to reply to
28  the notice within 75 days after receipt is shall be deemed a
29  rejection of the claim for purposes of this section.
30         (3)(4)  The notification of a violation of a resident's
31  rights or alleged negligence shall be served within the
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 1  applicable statute of limitations period; however, during the
 2  75-day period, the statute of limitations is tolled as to all
 3  prospective defendants. Upon stipulation by the parties, the
 4  75-day period may be extended and the statute of limitations
 5  is tolled during any such extension.  Upon receiving written
 6  notice by certified mail, return receipt requested, of
 7  termination of negotiations in an extended period, the
 8  claimant has shall have 60 days or the remainder of the period
 9  of the statute of limitations, whichever is greater, within
10  which to file suit.
11         (4)(5)  No statement, discussion, written document,
12  report, or other work product generated by presuit claims
13  evaluation procedures under this section is discoverable or
14  admissible in any civil action for any purpose by the opposing
15  party.  All participants, including, but not limited to,
16  physicians, investigators, witnesses, and employees or
17  associates of the defendant, are immune from civil liability
18  arising from participation in the presuit claims evaluation
19  procedure.  Any licensed physician or registered nurse may be
20  retained by either party to provide an opinion regarding the
21  reasonable basis of the claim.  The presuit opinions of the
22  expert are not discoverable or admissible in any civil action
23  for any purpose by the opposing party.
24         (5)(6)  Upon receipt by a prospective defendant of a
25  notice of claim, the parties shall make discoverable
26  information available without formal discovery as provided in
27  subsection (6) (7).
28         (6)(7)  Informal discovery may be used by a party to
29  obtain unsworn statements and the production of documents or
30  things as follows:
31  
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 1         (a)  Unsworn statements.--Any party may require other
 2  parties to appear for the taking of an unsworn statement.
 3  These Such statements may be used only for the purpose of
 4  claims evaluation and are not discoverable or admissible in
 5  any civil action for any purpose by any party.  A party
 6  seeking to take the unsworn statement of any party must give
 7  reasonable notice in writing to all parties.  The notice must
 8  state the time and place for taking the statement and the name
 9  and address of the party to be examined.  Unless otherwise
10  impractical, the examination of any party must be done at the
11  same time by all other parties.  Any party may be represented
12  by counsel at the taking of an unsworn statement.  An unsworn
13  statement may be recorded electronically, stenographically, or
14  on videotape.  The taking of unsworn statements is subject to
15  the provisions of the Florida Rules of Civil Procedure and may
16  be terminated for abuses.
17         (b)  Documents or things.--Any party may request
18  discovery of relevant documents or things.  The documents or
19  things must be produced, at the expense of the requesting
20  party, within 20 days after the date of receipt of the
21  request.  A party is required to produce relevant and
22  discoverable documents or things within that party's
23  possession or control, if in good faith it can reasonably be
24  done within the timeframe of the claims evaluation process.
25         (7)(8)  Each request for and notice concerning informal
26  discovery under pursuant to this section must be in writing,
27  and a copy thereof must be sent to all parties. The Such a
28  request or notice must bear a certificate of service
29  identifying the name and address of the person to whom the
30  request or notice is served, the date of the request or
31  notice, and the manner of service thereof.
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 1         (8)(9)  If a prospective defendant makes a written
 2  settlement offer, the claimant shall have 15 days from the
 3  date of receipt to accept the offer. An offer shall be deemed
 4  rejected unless accepted by delivery of a written notice of
 5  acceptance.
 6         (9)(10)  To the extent not inconsistent with this part,
 7  the provisions of the Florida Mediation Code, Florida Rules of
 8  Civil Procedure, shall be applicable to these such
 9  proceedings.
10         (10)(11)  Within 30 days After the claimant's receipt
11  of the defendant's response to the claim, the parties or their
12  designated representatives may stipulate to toll the statute
13  of limitations for 90 days in order to shall meet in mediation
14  to discuss the issues of liability and damages in accordance
15  with the mediation rules of practice and procedures adopted by
16  the Supreme Court. Upon stipulation of the parties, this
17  90-day 30-day period may be extended and the statute of
18  limitations is tolled during the mediation and any such
19  extension. At the conclusion of mediation, the claimant shall
20  have 60 days or the remainder of the period of the statute of
21  limitations, whichever is greater, within which to file suit.
22         Section 4.  Section 400.0234, Florida Statutes, is
23  amended to read:
24         400.0234  Availability of facility records for
25  investigation of resident's rights violations and defenses;
26  penalty.--
27         (1)  Failure to provide complete copies of a resident's
28  records, including, but not limited to, all medical records
29  and the resident's chart, within the control or possession of
30  the facility in accordance with s. 400.145 shall constitute
31  evidence of failure of that party to comply with good faith
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 1  discovery requirements and shall waive the good faith
 2  certificate, and presuit notice, voluntary binding
 3  arbitration, and mediation requirements under this part by the
 4  requesting party.
 5         (2)  No facility shall be held liable for any civil
 6  damages as a result of complying with this section.
 7         Section 5.  Section 400.02342, Florida Statutes, is
 8  created to read:
 9         400.02342  Voluntary binding arbitration of claims for
10  resident's rights violation or negligence.--
11         (1)  Voluntary binding arbitration under this part does
12  not apply to causes of action involving the state or its
13  agencies or subdivisions, or the officers, employees, or
14  agents thereof under s. 768.28.
15         (2)  Any party may elect, with respect only to a claim
16  arising out of the rendering of, or the failure to render,
17  nursing home services to voluntarily submit the issue of
18  damages to binding arbitration and have the issue determined
19  by an arbitration panel. For purposes of arbitration under
20  this part, the term "nursing home services" means those
21  services that are rendered to a resident as a result of his or
22  her needs or conditions and that would be customarily within
23  the scope of care provided by the nursing facility, including:
24         (a)  Skin care;
25         (b)  Mobility and walking assistance;
26         (c)  Nourishment;
27         (d)  Hydration;
28         (e)  Infection prevention;
29         (f)  Skilled therapy;
30         (g)  Skilled nursing services; and
31         (h)  Fall prevention.
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 1         (3)  Any party may initiate the process to elect
 2  voluntary binding arbitration. The election process is
 3  initiated when a party serves a request for voluntary binding
 4  arbitration of damages on the opposing party. The notice of
 5  election must be served no later than the conclusion of the
 6  75-day pre-suit waiting period in accordance with s.
 7  400.0233(2)(b) or the remainder of the period of the statute
 8  of limitations, whichever is greater, or no later than 30 days
 9  after the filing date of an amended complaint containing new
10  claims that are subject to an offer of voluntary binding
11  arbitration. The evidentiary standard for voluntary binding
12  arbitration of claims arising out of the rendering of, or the
13  failure to render, nursing home services is by a greater
14  weight of the evidence as in s. 400.023(2) and chapter 90.
15         (4)  The opposing party may accept the offer of
16  voluntary binding arbitration no later than 30 days after
17  receiving the other party's request for arbitration.
18  Acceptance within the time period is a binding commitment to
19  comply with the decision of the arbitration panel as to the
20  appropriate level of damages, if any, which may be awarded.
21         (5)  The arbitration panel must include three
22  arbitrators: one selected by the claimant, one selected by the
23  defendant, and an administrative law judge furnished by the
24  Division of Administrative Hearings. The administrative law
25  judge shall serve as the chief arbitrator. If the claim
26  involves multiple claimants or multiple defendants, one
27  arbitrator must be selected by the side with multiple parties
28  as the choice of those parties. If the multiple parties cannot
29  reach agreement as to their arbitrator, each of the multiple
30  parties must submit a nominee to the director of the division
31  
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 1  who shall choose the arbitrator for the side having multiple
 2  parties.
 3         (6)  Discovery in voluntary binding arbitration cases
 4  is governed by the Florida Rules of Civil Procedure.
 5         (7)  The arbitrators shall be independent of all
 6  parties, witnesses, and legal counsel, and an officer,
 7  director, affiliate, subsidiary, or employee of a party,
 8  witness, or legal counsel may not serve as an arbitrator in
 9  the proceeding.
10         (8)  The rate of compensation for arbitrators, other
11  than the administrative law judge, shall be set by the
12  division and may not exceed the ordinary and customary fees
13  paid to court-approved mediators in the circuit in which the
14  claim would be filed. The costs of compensation for the
15  arbitrators must be borne by the party requesting arbitration.
16         (9)  A party participating in arbitration under this
17  section may not use any other forum against a participating
18  defendant during the course of the arbitration.
19         (10)  A participating claimant agrees that damages be
20  awarded according to this part, subject to the following
21  limitations:
22         (a)  The defendant has offered not to contest liability
23  and causation and has agreed to arbitration on the issue of
24  damages as provided in this section.
25         (b)  Net economic damages, if any, are awardable,
26  including, but not limited to, past and future medical and
27  health care expenses, offset by collateral source payments, to
28  the extent that the claimant is entitled to recover damages
29  under general law, including the Wrongful Death Act, s.
30  46.021, or s. 400.023.
31  
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 1         (c)  Total noneconomic damages, if any, which may be
 2  awarded for the claim arising out of the care and services
 3  rendered to a nursing home resident, including any claim
 4  available under the Wrongful Death Act, s. 46.021, or s.
 5  400.023, are limited to a maximum of $500,000, regardless of
 6  the number of individual claimants or defendants.
 7         (d)  Punitive damages may not be awarded.
 8         (e)  The defendant is responsible for the payment of
 9  interest on all accrued damages with respect to which interest
10  would be awarded at trial.
11         (f)  The party requesting binding arbitration shall pay
12  the fees of the arbitrators and the costs of the division
13  associated with arbitration, as assessed by the division. If
14  the division determines that the plaintiff is indigent and
15  unable to pay, the defendant shall pay the fees and costs as
16  assessed by the division, and the defendant shall have a claim
17  for reimbursement against the estate of the plaintiff.
18         (g)  A defendant who agrees to particate in arbitration
19  under this section is jointly and severally liable for all
20  damages assessed under this section.
21         (h)  A defendant's obligation to pay the claimant's
22  damages applies only to arbitration under this part. A
23  defendant's or claimant's offer to arbitrate may not be used
24  in evidence or in argument during any subsequent litigation of
25  the claim following rejection thereof.
26         (i)  The fact of making or rejecting an offer to
27  arbitrate is not admissible as evidence of liability in any
28  collateral or subsequent proceeding on the claim.
29         (j)  An offer by a claimant to arbitrate must be made
30  to each defendant against whom the claimant has made a claim.
31  An offer by a defendant to arbitrate must be made to each
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 1  claimant. A defendant who rejects a claimant's offer to
 2  arbitrate is subject to s. 400.02344(3). A claimant who
 3  rejects a defendant's offer to arbitrate is subject to s.
 4  400.02344(4).
 5         (k)  The hearing must be conducted by all the
 6  arbitrators, but a majority may determine any question of fact
 7  and render a final decision. The chief arbitrator shall decide
 8  all evidentiary matters in accordance with the Florida
 9  Evidence Code and the Florida Rules of Civil Procedure. The
10  chief arbitrator shall file a copy of the final decision with
11  the clerk of the Agency for Health Care Administration. If any
12  member of the arbitration panel becomes unavailable, and as a
13  result of the unavailability the panel is unable to reach a
14  final majority decision, the chief arbitrator shall dissolve
15  the arbitration panel, declare misarbitration and empanel a
16  new arbitration panel under subsection (4).
17         (l)  This part does not preclude settlement at any time
18  by mutual agreement of the parties.
19         (m)  If an award of damages is made to a claimant by
20  the arbitration panel, the defendant must pay the damages no
21  later than 20 days after entry of the decision of the
22  arbitration panel.
23         (n)  Damages and costs that are not paid within 20 days
24  are subject to postjudgment interest.
25         (o)  This part does not relieve a defendant who
26  voluntarily participates in binding arbitration from timely
27  paying damages and costs awarded by an arbitration panel.
28         (11)  Any issue between the defendant and the
29  defendant's insurer or self-insurer as to who shall control
30  the defense of the claim and any responsibility for payment of
31  an arbitration award shall be determined under existing
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 1  principles of law, except that the insurer or self insurer may
 2  not offer to arbitrate or accept a claimant's offer to
 3  arbitrate without the written consent of the defendant.
 4         (12)(a)  The Division of Administrative Hearings may
 5  adopt rules to implement this section.
 6         (b)  Rules adopted by the division under this section,
 7  s. 120.54, or s. 120.65, may authorize a reasonable sanction,
 8  except contempt, including, but not limited to, any sanction
 9  authorized by s. 57.105, against a party for violating a rule
10  of the division or failing to comply with an order issued by
11  an administrative law judge which is not under judicial
12  review.
13         (13)  The division may charge the party requesting
14  binding arbitration an administrative fee for conducting the
15  arbitration. The administrative fee may not exceed $1,000.
16         (14)  This section does not prevent the parties from
17  using a private arbitrator or arbitrators, in which instance
18  the same procedures and limitations set forth in this section
19  apply.
20         Section 6.  Section 400.02343, Florida Statutes, is
21  created to read:
22         400.02343  Arbitration to apportion financial
23  responsibility among multiple defendants.--
24         (1)  This section applies when more than one defendant
25  participates in voluntary binding arbitration under s.
26  400.02342.
27         (2)(a)  Defendants who agreed to voluntary binding
28  arbitration must submit any dispute amongst themselves
29  concerning apportionment of financial responsibility to a
30  separate binding arbitration proceeding. The defendants must
31  file a notice of the dispute with the administrative law judge
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 1  of the arbitration panel no later than 20 days after a
 2  determination of damages by the arbitration panel.
 3         (b)  The apportionment proceeding shall be conducted
 4  before a panel of three arbitrators. The panel must include
 5  the administrative law judge who presided in the arbitration
 6  proceeding and two nursing home arbitrators appointed by the
 7  defendants. If the defendants cannot agree on their selections
 8  to the apportionment panel, a list of not more than five
 9  nominees shall be submitted by each defendant to the director
10  of the Division of Administrative Hearings. The director shall
11  select the other arbitrators but may not select more than one
12  from the list of nominees of any defendant.
13         (3)  The administrative law judge shall serve as the
14  chief arbitrator. The judge shall convene the apportionment
15  panel no later than 65 days after the arbitration panel issues
16  a damage award.
17         (4)  The apportionment panel shall allocate financial
18  responsibility among all defendants named in the notice of an
19  asserted violation of a resident's rights or deviation from
20  the standard of care, regardless of whether the defendant had
21  submitted to arbitration. The defendants in the apportionment
22  proceeding are responsible to one another for their
23  proportionate share of the damage award, attorney's fees, and
24  costs awarded by the arbitration panel. All defendants in the
25  apportionment proceeding are jointly and severally liable for
26  any damages assessed in arbitration. The determination of the
27  percentage of fault of any nonarbitrating defendant is not
28  binding against that defendant but is admissible in any
29  subsequent legal proceeding.
30         (5)  Payment by a defendant of the damages awarded by
31  the arbitration panel in the arbitration proceeding
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 1  extinguishes the defendant's liability to the claimant for the
 2  incident described in the first arbitration and extinguishes
 3  the defendant's liability for contribution to any defendant
 4  who did not participate in arbitration.
 5         (6)  A defendant paying damages assessed under this
 6  section or s. 400.02342 has a cause of action for contribution
 7  against any arbitrating or nonarbitrating defendant whose
 8  negligence contributed to the injury.
 9         Section 7.  Section 400.02344, Florida Statutes, is
10  created to read:
11         400.02344  Effect of a failure to offer or accept
12  voluntary binding arbitration.--
13         (1)  A proceeding for voluntary binding arbitration is
14  an alternative to a jury trial and does not supersede the
15  right of any party to a jury trial.
16         (2)  If neither party requests or agrees to voluntary
17  binding arbitration, the claim shall proceed to trial or to
18  any available legal alternative such as offer of and demand
19  for judgment under s. 768.79 or offer of settlement under s.
20  45.061.
21         (3)  If a defendant rejects a claimant's offer to
22  participate in voluntary binding arbitration, the claim shall
23  proceed to trial as otherwise provided in this chapter without
24  limits on noneconomic damages. If the claimant prevails at
25  trial, the claimant is entitled to recover damages otherwise
26  provided by law, prejudgment interest, and reasonable
27  attorney's fees of up to 25 percent of the award when reduced
28  to present value.
29         (4)  If a claimant rejects a defendant's offer to enter
30  into voluntary binding arbitration:
31  
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 1         (a)  Damages are limited to net economic damages and
 2  noneconomic damages of no more than $750,000 per claim. The
 3  total noneconomic damages, if any, which may be awarded for
 4  the claim arising out of the care and services rendered to the
 5  resident, including any claim under the Wrongful Death Act,
 6  are limited to a maximum of $750,000, regardless of the number
 7  of individual claimants or defendants. The Legislature
 8  expressly finds that the conditional limit on noneconomic
 9  damages is warranted by the claimant's refusal to accept
10  arbitration and represents an appropriate balance between the
11  interests of all residents who ultimately pay for rights and
12  negligence losses and the interests of those residents who are
13  injured as a result of negligence and violations of rights.
14         (b)  Attorney's fees may not be awarded.
15         (c)  Net economic damages may be awarded, including,
16  but not limited to, past and future medical and health care
17  expenses, loss of wages, and loss of earning capacity, offset
18  by collateral source payments.
19         (d)  Punitive damages may be awarded under ss. 400.0237
20  and 400.0238.
21         (5)  Jury trial shall proceed in accordance with
22  existing principles of law.
23         Section 8.  Section 400.02345, Florida Statutes, is
24  created to read:
25         400.02345  Determination of whether claim is subject to
26  arbitration.--
27         (1)  A court of competent jurisdiction shall determine
28  if a claim is subject to voluntary arbitration under ss.
29  400.02342 and 400.02348 if the parties cannot agree. If a
30  court determines that a claim is subject to binding
31  arbitration, the parties must decide whether to voluntarily
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 1  arbitrate the claim no later than 30 days after the date the
 2  court enters its order. If the parties choose not to
 3  arbitrate, the limitations imposed by s. 400.02344 apply.
 4         (2)  If a plaintiff amends a complaint to allege facts
 5  that render the claim subject to binding arbitration under ss.
 6  400.02342 and 400.02348, the parties must decide whether to
 7  participate in binding arbitration no later than 30 days after
 8  the plaintiff files the amended complaint. If the parties
 9  choose not to arbitrate, the limitations imposed upon the
10  parties under ss. 400.02343 and 400.02344 apply.
11         Section 9.  Section 400.02347, Florida Statutes, is
12  created to read:
13         400.02347  Payment of arbitration award; interest.--
14         (1)  No later than 20 days after the arbitration panel
15  makes a finding of damages, if any, under s. 400.02342, a
16  defendant shall:
17         (a)  Pay the arbitration award to the claimant; and
18         (b)  Submit any dispute among multiple defendants to
19  arbitration under s. 400.02343.
20         (2)  Beginning 20 days after a damage award is issued
21  by the arbitration panel under s. 400.02342, the award shall
22  begin to accrue interest at the rate of 18 percent per year.
23         Section 10.  Section 400.02348, Florida Statutes, is
24  created to read:
25         400.02348  Appeal of arbitration awards and
26  apportionment of financial responsibility.--
27         (1)  An arbitration award and an apportionment of
28  financial responsibility are final agency action for purposes
29  of s. 120.68. An appeal must be taken to the district court of
30  appeal for the district in which the arbitration or
31  apportionment took place. The appeal is limited to a review of
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 1  the record and must proceed according to s. 120.68. The amount
 2  of an arbitration award or an order apportioning financial
 3  responsibility, the evidence in support of either, and the
 4  procedure by which either is determined are subject to
 5  judicial review only in a proceeding instituted under this
 6  section.
 7         (2)  An appeal does not stay an arbitration or
 8  apportionment award. An arbitration or apportionment panel,
 9  arbitration panel member, or circuit court may not stay an
10  arbitration or apportionment award. A district court of appeal
11  may stay an award to prevent manifest injustice, but a
12  district court of appeal may not abrogate the provisions of s.
13  400.02347(2).
14         (3)  A party to an arbitration proceeding may enforce
15  an arbitration award or an apportionment of financial
16  responsibility by filing a petition in the circuit court for
17  the circuit in which the arbitration or apportionment took
18  place. A petition may not be granted unless the time for
19  appeal has expired. If an appeal has been taken, a petition
20  may not be granted with respect to an arbitration award or an
21  apportionment of financial responsibility that has been
22  stayed.
23         (4)  If the petitioner establishes the authenticity of
24  the arbitration award or of the apportionment of financial
25  responsibility, shows that the time for appeal has expired,
26  and demonstrates that no stay is in place, the court shall
27  enter the orders and judgments as are required to carry out
28  the terms of the arbitration award or apportionment of
29  financial responsibility. The orders are enforceable by the
30  contempt powers of the court, and execution shall issue upon
31  the request of a party for the judgment.
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 1         Section 11.  Section 400.141, Florida Statutes, is
 2  amended to read:
 3         400.141  Administration and management of nursing home
 4  facilities.--Every licensed facility shall comply with all
 5  applicable standards and rules of the agency and shall:
 6         (1)  Be under the administrative direction and charge
 7  of a licensed administrator.
 8         (2)  Appoint a medical director licensed pursuant to
 9  chapter 458 or chapter 459. The agency may establish by rule
10  more specific criteria for the appointment of a medical
11  director.
12         (3)  Have available the regular, consultative, and
13  emergency services of physicians licensed by the state.
14         (4)  Provide for resident use of a community pharmacy
15  as specified in s. 400.022(1)(q). Any other law to the
16  contrary notwithstanding, a registered pharmacist licensed in
17  Florida, that is under contract with a facility licensed under
18  this chapter, shall repackage a nursing facility resident's
19  bulk prescription medication which has been packaged by
20  another pharmacist licensed in any state in the United States
21  into a unit dose system compatible with the system used by the
22  nursing facility, if the pharmacist is requested to offer such
23  service. In order to be eligible for the repackaging, a
24  resident or the resident's spouse must receive prescription
25  medication benefits provided through a former employer as part
26  of his or her retirement benefits, a qualified pension plan as
27  specified in s. 4972 of the Internal Revenue Code, a federal
28  retirement program as specified under 5 C.F.R. s. 831, or a
29  long-term care policy as defined in s. 627.9404(1). A
30  pharmacist who correctly repackages and relabels the
31  medication and the nursing facility which correctly
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 1  administers such repackaged medication under the provisions of
 2  this subsection shall not be held liable in any civil or
 3  administrative action arising from the repackaging. In order
 4  to be eligible for the repackaging, a nursing facility
 5  resident for whom the medication is to be repackaged shall
 6  sign an informed consent form provided by the facility which
 7  includes an explanation of the repackaging process and which
 8  notifies the resident of the immunities from liability
 9  provided herein. A pharmacist who repackages and relabels
10  prescription medications, as authorized under this subsection,
11  may charge a reasonable fee for costs resulting from the
12  implementation of this provision.
13         (5)  Provide for the access of the facility residents
14  to dental and other health-related services, recreational
15  services, rehabilitative services, and social work services
16  appropriate to their needs and conditions and not directly
17  furnished by the licensee.  When a geriatric outpatient nurse
18  clinic is conducted in accordance with rules adopted by the
19  agency, outpatients attending such clinic shall not be counted
20  as part of the general resident population of the nursing home
21  facility, nor shall the nursing staff of the geriatric
22  outpatient clinic be counted as part of the nursing staff of
23  the facility, until the outpatient clinic load exceeds 15 a
24  day.
25         (6)  Be allowed and encouraged by the agency to provide
26  other needed services under certain conditions. If the
27  facility has a standard licensure status, and has had no class
28  I or class II deficiencies during the past 2 years or has been
29  awarded a Gold Seal under the program established in s.
30  400.235, it may be encouraged by the agency to provide
31  services, including, but not limited to, respite and adult day
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 1  services, which enable individuals to move in and out of the
 2  facility.  A facility is not subject to any additional
 3  licensure requirements for providing these services. Respite
 4  care may be offered to persons in need of short-term or
 5  temporary nursing home services. Respite care must be provided
 6  in accordance with this part and rules adopted by the agency.
 7  However, the agency shall, by rule, adopt modified
 8  requirements for resident assessment, resident care plans,
 9  resident contracts, physician orders, and other provisions, as
10  appropriate, for short-term or temporary nursing home
11  services.  The agency shall allow for shared programming and
12  staff in a facility which meets minimum standards and offers
13  services pursuant to this subsection, but, if the facility is
14  cited for deficiencies in patient care, may require additional
15  staff and programs appropriate to the needs of service
16  recipients. A person who receives respite care may not be
17  counted as a resident of the facility for purposes of the
18  facility's licensed capacity unless that person receives
19  24-hour respite care. A person receiving either respite care
20  for 24 hours or longer or adult day services must be included
21  when calculating minimum staffing for the facility. Any costs
22  and revenues generated by a nursing home facility from
23  nonresidential programs or services shall be excluded from the
24  calculations of Medicaid per diems for nursing home
25  institutional care reimbursement.
26         (7)  If the facility has a standard license or is a
27  Gold Seal facility, exceeds the minimum required hours of
28  licensed nursing and certified nursing assistant direct care
29  per resident per day, and is part of a continuing care
30  facility licensed under chapter 651 or a retirement community
31  that offers other services under pursuant to part III, part
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 1  IV, or part V on a single campus, be allowed to share
 2  programming and staff. At the time of inspection and in the
 3  semiannual report required pursuant to subsection (15), a
 4  continuing care facility or retirement community that uses
 5  this option must demonstrate through staffing records that
 6  minimum staffing requirements for the facility were met.
 7  Licensed nurses and certified nursing assistants who work in
 8  the nursing home facility may be used to provide services
 9  elsewhere on campus if the facility exceeds the minimum number
10  of direct care hours required per resident per day and the
11  total number of residents receiving direct care services from
12  a licensed nurse or a certified nursing assistant does not
13  cause the facility to violate the staffing ratios required
14  under s. 400.23(3)(a). Compliance with the minimum staffing
15  ratios shall be based on total number of residents receiving
16  direct care services, regardless of where they reside on
17  campus. If the facility receives a conditional license, it may
18  not share staff until the conditional license status ends.
19  This subsection does not restrict the agency's authority under
20  federal or state law to require additional staff if a facility
21  is cited for deficiencies in care which are caused by an
22  insufficient number of certified nursing assistants or
23  licensed nurses. The agency may adopt rules for the
24  documentation necessary to determine compliance with this
25  provision.
26         (8)  Maintain the facility premises and equipment and
27  conduct its operations in a safe and sanitary manner.
28         (9)  If the licensee furnishes food service, provide a
29  wholesome and nourishing diet sufficient to meet generally
30  accepted standards of proper nutrition for its residents and
31  provide such therapeutic diets as may be prescribed by
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 1  attending physicians.  In making rules to implement this
 2  subsection, the agency shall be guided by standards
 3  recommended by nationally recognized professional groups and
 4  associations with knowledge of dietetics.
 5         (10)  Keep full records of resident admissions and
 6  discharges; medical and general health status, including
 7  medical records, personal and social history, and identity and
 8  address of next of kin or other persons who may have
 9  responsibility for the affairs of the residents; and
10  individual resident care plans including, but not limited to,
11  prescribed services, service frequency and duration, and
12  service goals.  The records shall be open to inspection by the
13  agency.
14         (11)  Keep such fiscal records of its operations and
15  conditions as may be necessary to provide information under
16  pursuant to this part.
17         (12)  Furnish copies of personnel records for employees
18  affiliated with the such facility, to any other facility
19  licensed by this state requesting this information pursuant to
20  this part. The Such information contained in the records may
21  include, but is not limited to, disciplinary matters and any
22  reason for termination. Any facility releasing such records
23  under pursuant to this part shall be considered to be acting
24  in good faith and may not be held liable for information
25  contained in such records, absent a showing that the facility
26  maliciously falsified such records.
27         (13)  Publicly display a poster provided by the agency
28  containing the names, addresses, and telephone numbers for the
29  state's abuse hotline, the State Long-Term Care Ombudsman, the
30  Agency for Health Care Administration consumer hotline, the
31  Advocacy Center for Persons with Disabilities, the Florida
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 1  Statewide Advocacy Council, and the Medicaid Fraud Control
 2  Unit, with a clear description of the assistance to be
 3  expected from each.
 4         (14)  Submit to the agency the information specified in
 5  s. 400.071(2)(e) for a management company within 30 days after
 6  the effective date of the management agreement.
 7         (15)  Submit semiannually to the agency, or more
 8  frequently if requested by the agency, information regarding
 9  facility staff-to-resident ratios, staff turnover, and staff
10  stability, including information regarding certified nursing
11  assistants, licensed nurses, the director of nursing, and the
12  facility administrator. For purposes of this reporting:
13         (a)  Staff-to-resident ratios must be reported in the
14  categories specified in s. 400.23(3)(a) and applicable rules.
15  The ratio must be reported as an average for the most recent
16  calendar quarter.
17         (b)  Staff turnover must be reported for the most
18  recent 12-month period ending on the last workday of the most
19  recent calendar quarter prior to the date the information is
20  submitted. The turnover rate must be computed quarterly, with
21  the annual rate being the cumulative sum of the quarterly
22  rates. The turnover rate is the total number of terminations
23  or separations experienced during the quarter, excluding any
24  employee terminated during a probationary period of 3 months
25  or less, divided by the total number of staff employed at the
26  end of the period for which the rate is computed, and
27  expressed as a percentage.
28         (c)  The formula for determining staff stability is the
29  total number of employees that have been employed for more
30  than 12 months, divided by the total number of employees
31  
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 1  employed at the end of the most recent calendar quarter, and
 2  expressed as a percentage.
 3         (d)  A nursing facility that has failed to comply with
 4  state minimum-staffing requirements for 2 consecutive days is
 5  prohibited from accepting new admissions until the facility
 6  has achieved the minimum-staffing requirements for a period of
 7  6 consecutive days. For the purposes of this paragraph, any
 8  person who was a resident of the facility and was absent from
 9  the facility for the purpose of receiving medical care at a
10  separate location or was on a leave of absence is not
11  considered a new admission. Failure to impose such an
12  admissions moratorium constitutes a class II deficiency.
13         (e)  A nursing facility which does not have a
14  conditional license may be cited for failure to comply with
15  the standards in s. 400.23(3)(a) only if it has failed to meet
16  those standards on 2 consecutive days or if it has failed to
17  meet at least 97 percent of those standards on any one day.
18         (f)  A facility which has a conditional license must be
19  in compliance with the standards in s. 400.23(3)(a) at all
20  times.
21  
22  Nothing in this section shall limit the agency's ability to
23  impose a deficiency or take other actions if a facility does
24  not have enough staff to meet the residents' needs.
25         (16)  Report monthly the number of vacant beds in the
26  facility which are available for resident occupancy on the day
27  the information is reported.
28         (17)  Notify a licensed physician when a resident
29  exhibits signs of dementia or cognitive impairment or has a
30  change of condition in order to rule out the presence of an
31  underlying physiological condition that may be contributing to
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 1  such dementia or impairment. The notification must occur
 2  within 30 days after the acknowledgment of the such signs by
 3  facility staff. If an underlying condition is determined to
 4  exist, the facility shall arrange, with the appropriate health
 5  care provider, the necessary care and services to treat the
 6  condition.
 7         (18)  If the facility implements a dining and
 8  hospitality attendant program, ensure that the program is
 9  developed and implemented under the supervision of the
10  facility director of nursing. A licensed nurse, licensed
11  speech or occupational therapist, or a registered dietitian
12  must conduct training of dining and hospitality attendants. A
13  person employed by a facility as a dining and hospitality
14  attendant must perform tasks under the direct supervision of a
15  licensed nurse.
16         (19)  Report to the agency any filing for bankruptcy
17  protection by the facility or its parent corporation,
18  divestiture or spin-off of its assets, or corporate
19  reorganization within 30 days after the completion of the such
20  activity.
21         (20)  Effective October 1, 2005, maintain general and
22  professional liability insurance coverage, written through
23  admitted carriers, surplus carriers, or offshore captives, in
24  an amount not less than $2,500 per licensed nursing home bed
25  that is in force at all times. In lieu of general and
26  professional liability insurance coverage, a state-designated
27  teaching nursing home and its affiliated assisted living
28  facilities created under s. 430.80 may demonstrate proof of
29  financial responsibility as provided in s. 430.80(3)(h); the
30  exception provided in this paragraph shall expire July 1,
31  
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 1  2005.The professional liability insurance coverage shall not
 2  allow for wasting of the policy with costs and attorney fees.
 3         (21)(a)  Effective October 1, 2005, in lieu of general
 4  and professional liability insurance coverage, demonstrate
 5  proof of financial responsibility in one of the following
 6  ways:
 7         1.  Establishing an escrow account consisting of cash
 8  or assets eligible for deposit in accordance with s. 625.52 in
 9  an annual amount not less than $2,500 per licensed nursing
10  home bed, to be funded in 12 monthly installments at the
11  inception of the escrow account; or
12         2.  Obtaining an unexpired, irrevocable letter of
13  credit, established under chapter 675, in an annual amount not
14  less than $2,500 per licensed nursing home bed. The letter of
15  credit shall be payable to the facility as beneficiary upon
16  presentment of a final judgment indicating liability and
17  awarding damages to be paid by the facility or upon
18  presentment of a settlement agreement signed by all parties to
19  the agreement when the final judgment or settlement is a
20  result of a liability claim against the facility. The letter
21  of credit shall be nonassignable and nontransferable. The
22  letter of credit shall be issued by any bank or savings
23  association organized and existing under the laws of this
24  state or any bank or savings association organized under the
25  laws of the United States which has its principal place of
26  business in this state or has a branch office that is
27  authorized under the laws of this state or of the United
28  States to receive deposits in this state.
29         (b)  In lieu of general and professional liability
30  insurance coverage, a state-designated teaching nursing home
31  and its affiliated assisted living facilities created under s.
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 1  430.80 may demonstrate proof of financial responsibility as
 2  provided in s. 430.80(3)(h).
 3         (c)  The required amount of general and professional
 4  liability insurance or financial responsibility shall be
 5  recalculated beginning January 1, 2007, and continue each
 6  January 1, by the rate of inflation for the preceding year,
 7  using the Consumer Price Index Urban B All Items, as published
 8  by the United States Bureau of Labor Statistics.
 9         (d)  General and professional liability coverage or
10  financial responsibility must be demonstrated at the time of
11  initial licensure and at the time of relicensure and in order
12  to maintain the license.
13         (e)  Notwithstanding any provision to the contrary, a
14  nursing home facility that is part of a continuing care
15  facility certified under chapter 651 and owned by the same
16  corporation may use the liability insurance or financial
17  responsibility that is in effect for the continuing care
18  facility as proof of compliance if the total amount of
19  coverage or financial responsibility is no less than the
20  minimum amount required for its nursing home facility based on
21  $2,500 per licensed nursing home bed under the requirements of
22  this section and as adjusted for inflation as provided in
23  paragraph (c).
24         (f)  A corporation that owns a nursing home facility
25  and offers other long-term care or housing services under the
26  same corporate entity or a holding company through which
27  nursing home care and other services are offered, including,
28  but not limited to, assisted living, home health, apartments
29  or units for independent living, or any combination thereof,
30  may use the liability insurance or financial responsibility in
31  effect for the corporation or holding company as proof of
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 1  compliance if the amount of coverage or financial
 2  responsibility is no less than the minimum amount required for
 3  its nursing home facility based on $2,500 per licensed nursing
 4  home bed under the requirements of this section and as
 5  adjusted for inflation as provided in paragraph (c).
 6         (22)(21)  Maintain in the medical record for each
 7  resident a daily chart of certified nursing assistant services
 8  provided to the resident. The certified nursing assistant who
 9  is caring for the resident must complete this record by the
10  end of his or her shift. This record must indicate assistance
11  with activities of daily living, assistance with eating, and
12  assistance with drinking, and must record each offering of
13  nutrition and hydration for those residents whose plan of care
14  or assessment indicates a risk for malnutrition or
15  dehydration.
16         (23)(22)  Before November 30 of each year, subject to
17  the availability of an adequate supply of the necessary
18  vaccine, provide for immunizations against influenza viruses
19  to all its consenting residents in accordance with the
20  recommendations of the United States Centers for Disease
21  Control and Prevention, subject to exemptions for medical
22  contraindications and religious or personal beliefs. Subject
23  to these exemptions, any consenting person who becomes a
24  resident of the facility after November 30 but before March 31
25  of the following year must be immunized within 5 working days
26  after becoming a resident. Immunization shall not be provided
27  to any resident who provides documentation that he or she has
28  been immunized as required by this subsection. This subsection
29  does not prohibit a resident from receiving the immunization
30  from his or her personal physician if he or she so chooses. A
31  resident who chooses to receive the immunization from his or
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 1  her personal physician shall provide proof of immunization to
 2  the facility. The agency may adopt and enforce any rules
 3  necessary to comply with or implement this subsection.
 4         (24)(23)  Assess all residents for eligibility for
 5  pneumococcal polysaccharide vaccination (PPV) and vaccinate
 6  residents when indicated within 60 days after the effective
 7  date of this act in accordance with the recommendations of the
 8  United States Centers for Disease Control and Prevention,
 9  subject to exemptions for medical contraindications and
10  religious or personal beliefs. Residents admitted after the
11  effective date of this act shall be assessed within 5 working
12  days of admission and, when indicated, vaccinated within 60
13  days in accordance with the recommendations of the United
14  States Centers for Disease Control and Prevention, subject to
15  exemptions for medical contraindications and religious or
16  personal beliefs. Immunization shall not be provided to any
17  resident who provides documentation that he or she has been
18  immunized as required by this subsection. This subsection does
19  not prohibit a resident from receiving the immunization from
20  his or her personal physician if he or she so chooses. A
21  resident who chooses to receive the immunization from his or
22  her personal physician shall provide proof of immunization to
23  the facility. The agency may adopt and enforce any rules
24  necessary to comply with or implement this subsection.
25         (25)(24)  Annually encourage and promote to its
26  employees the benefits associated with immunizations against
27  influenza viruses in accordance with the recommendations of
28  the United States Centers for Disease Control and Prevention.
29  The agency may adopt and enforce any rules necessary to comply
30  with or implement this subsection.
31  
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 1  Facilities that have been awarded a Gold Seal under the
 2  program established in s. 400.235 may develop a plan to
 3  provide certified nursing assistant training as prescribed by
 4  federal regulations and state rules and may apply to the
 5  agency for approval of their program.
 6         Section 12.  Subsection (3) is added to section
 7  400.151, Florida Statutes, to read:
 8         400.151  Contracts.--
 9         (3)  If a contract to which this section applies
10  contains a provision that provides for binding arbitration of
11  any dispute that may arise under, or is related to, the
12  duties, obligations, or services set forth in the contract,
13  the binding-arbitration provision must comply with the
14  following criteria:
15         (a)  The provision may not be contrary to this chapter.
16         (b)  The provision must be distinguishable from the
17  remainder of the contract by using uppercase and bold typeface
18  to denominate the provision as one providing for "DISPUTE
19  RESOLUTION" or alternatively, "ARBITRATION." The provision
20  must also use uppercase and bold typeface to notify the
21  resident that signing the contract means that the party agrees
22  to waive any right to a jury trial and consents to engage in
23  voluntary binding arbitration.
24         (c)  The provision must include a short, easily
25  understandable explanation of the arbitration process and what
26  claims are subject to arbitration. The provision must clearly
27  inform the resident, or the resident's designee, that he or
28  she has the right to consult an attorney and have the
29  agreement reviewed by an attorney of his or her choice. A
30  representative of the licensee must read the provision to the
31  resident and answer any questions asked by the resident. If a
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 1  resident requires special accommodations for reading or
 2  hearing the provision, the licensee must ensure that
 3  appropriate accommodations are made.
 4         (d)  The provision must comply with chapter 682,
 5  including, but not limited to, the right of the parties to
 6  participate in discovery, the right to counsel, the right to
 7  present evidence, the right to cross-examine witnesses, and
 8  present expert testimony.
 9         (e)  The contract's provision may not limit the amount
10  of the damages, if any, which may be awarded by the arbitrator
11  other than to state that the limitations set forth in section
12  400.023(1) apply to the contract. If a claimant seeks to
13  assert a claim for punitive damages, ss. 400.0237 and 400.0238
14  apply when determining whether such a claim may be brought and
15  the amount of damages, if any, which may be awarded.
16         (f)  The provision must state that the laws of this
17  state apply to any legal issue presented to the arbitration
18  panel and must state that the arbitration will be held in the
19  county where the nursing home facility is located.
20         (g)  The provision does not limit the resident from
21  bringing a claim in the arbitration based upon an alleged
22  deprivation of his or her resident rights as set forth in s.
23  400.022, and in accordance with the standards set forth in s.
24  400.023(2)-(5).
25         (h)  The resident, or, if the resident is unable to
26  sign the contract due to any physical or mental impairment,
27  the resident's health care surrogate, health care proxy,
28  spouse, or other person holding a power of attorney or durable
29  family power of attorney has 14 calendar days following the
30  date of signing the contract, excluding state-recognized
31  holidays, in which to rescind the arbitration provision, and
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 1  the rescission does not affect the other duties and
 2  obligations set forth in the agreement by and between the
 3  parties.
 4         (i)  The page on which the dispute-resolution or
 5  arbitration provision appears must include a signature line or
 6  other area where the resident, or resident's designee, can
 7  sign or initial that they have read the page and that the
 8  contents of the page have been explained to them.
 9         (j)  The provision may not require the resident or the
10  resident's designee to incur any initiation fees for the
11  binding-arbitration process which would be greater than the
12  filing fee applicable to the initiation of a civil action in
13  the circuit where the claim could be brought.
14         (k)  This subsection applies only to contracts having
15  arbitration provisions signed on or after July 1, 2005. This
16  subsection does not apply to continuing care contracts
17  governed under chapter 651.
18         Section 13.  Subsection (13) is added to section
19  409.907, Florida Statutes, to read:
20         409.907  Medicaid provider agreements.--The agency may
21  make payments for medical assistance and related services
22  rendered to Medicaid recipients only to an individual or
23  entity who has a provider agreement in effect with the agency,
24  who is performing services or supplying goods in accordance
25  with federal, state, and local law, and who agrees that no
26  person shall, on the grounds of handicap, race, color, or
27  national origin, or for any other reason, be subjected to
28  discrimination under any program or activity for which the
29  provider receives payment from the agency.
30         (13)(a)  Effective January 1, 2007, and notwithstanding
31  s. 409.905(8), the agency may not renew a Medicaid provider
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 1  agreement with a chronically poor-performing nursing home
 2  facility.
 3         (b)  Effective January 1, 2007, any nursing home
 4  facility determined to be chronically poor-performing may not
 5  participate in the voluntary binding arbitration provisions
 6  set forth in part II of chapter 400.
 7         Section 14.  Subsection (2) of section 409.908, Florida
 8  Statutes, is amended to read:
 9         409.908  Reimbursement of Medicaid providers.--Subject
10  to specific appropriations, the agency shall reimburse
11  Medicaid providers, in accordance with state and federal law,
12  according to methodologies set forth in the rules of the
13  agency and in policy manuals and handbooks incorporated by
14  reference therein.  These methodologies may include fee
15  schedules, reimbursement methods based on cost reporting,
16  negotiated fees, competitive bidding pursuant to s. 287.057,
17  and other mechanisms the agency considers efficient and
18  effective for purchasing services or goods on behalf of
19  recipients. If a provider is reimbursed based on cost
20  reporting and submits a cost report late and that cost report
21  would have been used to set a lower reimbursement rate for a
22  rate semester, then the provider's rate for that semester
23  shall be retroactively calculated using the new cost report,
24  and full payment at the recalculated rate shall be effected
25  retroactively. Medicare-granted extensions for filing cost
26  reports, if applicable, shall also apply to Medicaid cost
27  reports. Payment for Medicaid compensable services made on
28  behalf of Medicaid eligible persons is subject to the
29  availability of moneys and any limitations or directions
30  provided for in the General Appropriations Act or chapter 216.
31  Further, nothing in this section shall be construed to prevent
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 1  or limit the agency from adjusting fees, reimbursement rates,
 2  lengths of stay, number of visits, or number of services, or
 3  making any other adjustments necessary to comply with the
 4  availability of moneys and any limitations or directions
 5  provided for in the General Appropriations Act, provided the
 6  adjustment is consistent with legislative intent.
 7         (2)(a)1.  Reimbursement to nursing homes licensed under
 8  part II of chapter 400 and state-owned-and-operated
 9  intermediate care facilities for the developmentally disabled
10  licensed under chapter 393 must be made prospectively.
11         2.  Unless otherwise limited or directed in the General
12  Appropriations Act, reimbursement to hospitals licensed under
13  part I of chapter 395 for the provision of swing-bed nursing
14  home services must be made on the basis of the average
15  statewide nursing home payment, and reimbursement to a
16  hospital licensed under part I of chapter 395 for the
17  provision of skilled nursing services must be made on the
18  basis of the average nursing home payment for those services
19  in the county in which the hospital is located. When a
20  hospital is located in a county that does not have any
21  community nursing homes, reimbursement must be determined by
22  averaging the nursing home payments, in counties that surround
23  the county in which the hospital is located. Reimbursement to
24  hospitals, including Medicaid payment of Medicare copayments,
25  for skilled nursing services shall be limited to 30 days,
26  unless a prior authorization has been obtained from the
27  agency. Medicaid reimbursement may be extended by the agency
28  beyond 30 days, and approval must be based upon verification
29  by the patient's physician that the patient requires
30  short-term rehabilitative and recuperative services only, in
31  which case an extension of no more than 15 days may be
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 1  approved. Reimbursement to a hospital licensed under part I of
 2  chapter 395 for the temporary provision of skilled nursing
 3  services to nursing home residents who have been displaced as
 4  the result of a natural disaster or other emergency may not
 5  exceed the average county nursing home payment for those
 6  services in the county in which the hospital is located and is
 7  limited to the period of time which the agency considers
 8  necessary for continued placement of the nursing home
 9  residents in the hospital.
10         (b)  Subject to any limitations or directions provided
11  for in the General Appropriations Act, the agency shall
12  establish and implement a Florida Title XIX Long-Term Care
13  Reimbursement Plan (Medicaid) for nursing home care in order
14  to provide care and services in conformance with the
15  applicable state and federal laws, rules, regulations, and
16  quality and safety standards and to ensure that individuals
17  eligible for medical assistance have reasonable geographic
18  access to such care.
19         1.  Changes of ownership or of licensed operator do not
20  qualify for increases in reimbursement rates associated with
21  the change of ownership or of licensed operator. The agency
22  shall amend the Title XIX Long Term Care Reimbursement Plan to
23  provide that the initial nursing home reimbursement rates, for
24  the operating, patient care, and MAR components, associated
25  with related and unrelated party changes of ownership or
26  licensed operator filed on or after September 1, 2001, are
27  equivalent to the previous owner's reimbursement rate.
28         2.  The agency shall amend the long-term care
29  reimbursement plan and cost reporting system to create direct
30  care and indirect care subcomponents of the patient care
31  component of the per diem rate. These two subcomponents
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 1  together shall equal the patient care component of the per
 2  diem rate. Separate cost-based ceilings shall be calculated
 3  for each patient care subcomponent. The direct care
 4  subcomponent of the per diem rate shall be limited by the
 5  cost-based class ceiling, and the indirect care subcomponent
 6  shall be limited by the lower of the cost-based class ceiling,
 7  by the target rate class ceiling, or by the individual
 8  provider target. The agency shall adjust the patient care
 9  component effective January 1, 2002. The cost to adjust the
10  direct care subcomponent shall be net of the total funds
11  previously allocated for the case mix add-on. The agency shall
12  make the required changes to the nursing home cost reporting
13  forms to implement this requirement effective January 1, 2002.
14         3.  The direct care subcomponent shall include salaries
15  and benefits of direct care staff providing nursing services
16  including registered nurses, licensed practical nurses, and
17  certified nursing assistants who deliver care directly to
18  residents in the nursing home facility. This excludes nursing
19  administration, MDS, and care plan coordinators, staff
20  development, and staffing coordinator.
21         4.  All other patient care costs shall be included in
22  the indirect care cost subcomponent of the patient care per
23  diem rate. There shall be no costs directly or indirectly
24  allocated to the direct care subcomponent from a home office
25  or management company.
26         5.  On July 1 of each year, the agency shall report to
27  the Legislature direct and indirect care costs, including
28  average direct and indirect care costs per resident per
29  facility and direct care and indirect care salaries and
30  benefits per category of staff member per facility.
31  
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 1         6.  In order to offset the cost of general and
 2  professional liability insurance, the agency shall amend the
 3  plan to allow for interim rate adjustments to reflect
 4  increases in the cost of general or professional liability
 5  insurance for nursing homes. This provision shall be
 6  implemented to the extent existing appropriations are
 7  available.
 8         7.  Effective October 1, 2005, the agency shall amend
 9  the plan to recognize increases in professional liability
10  insurance costs incurred by a nursing home facility. The
11  agency shall provide a pass-through of professional liability
12  insurance, including contributions establishing financial
13  responsibility under s. 400.141(20), in an amount that does
14  not exceed $2,500 per licensed nursing home bed. Any portion
15  of the costs of professional liability insurance which exceed
16  $2,500 per bed is recognized as an operating cost and is
17  subject to the operating-cost ceiling and target.
18         8.  The agency may impose a quality assurance
19  assessment on all nursing home facilities licensed under part
20  II of chapter 400 as a provider contribution for making
21  payments, including federal matching funds, through the
22  methodologies for Medicaid nursing home reimbursement. Funds
23  received for this purpose must be accounted for separately and
24  may not be commingled with other state or local funds in any
25  manner.
26  
27  It is the intent of the Legislature that the reimbursement
28  plan achieve the goal of providing access to health care for
29  nursing home residents who require large amounts of care while
30  encouraging diversion services as an alternative to nursing
31  home care for residents who can be served within the
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 1  community. The agency shall base the establishment of any
 2  maximum rate of payment, whether overall or component, on the
 3  available moneys as provided for in the General Appropriations
 4  Act. The agency may base the maximum rate of payment on the
 5  results of scientifically valid analysis and conclusions
 6  derived from objective statistical data pertinent to the
 7  particular maximum rate of payment.
 8         Section 15.  Subsection (9) of section 400.147, Florida
 9  Statutes, is amended to read:
10         400.147  Internal risk management and quality assurance
11  program.--
12         (9)  By the 10th of each month, each facility subject
13  to this section shall report any notice received under s.
14  400.0233(1) pursuant to s. 400.0233(2) and each initial
15  complaint that was filed with the clerk of the court and
16  served on the facility during the previous month by a resident
17  or a resident's family member, guardian, conservator, or
18  personal legal representative. The report must include the
19  name of the resident, the resident's date of birth and social
20  security number, the Medicaid identification number for
21  Medicaid-eligible persons, the date or dates of the incident
22  leading to the claim or dates of residency, if applicable, and
23  the type of injury or violation of rights alleged to have
24  occurred.  Each facility shall also submit a copy of the
25  notices received under s. 400.0233(1) pursuant to s.
26  400.0233(2) and complaints filed with the clerk of the court.
27  This report is confidential as provided by law and is not
28  discoverable or admissible in any civil or administrative
29  action, except in such actions brought by the agency to
30  enforce the provisions of this part.
31  
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 1         Section 16.  For the purpose of incorporating the
 2  amendment made to section 400.141, Florida Statutes, in a
 3  reference thereto, paragraph (h) of subsection (3) of section
 4  430.80, Florida Statutes, is reenacted to read:
 5         430.80  Implementation of a teaching nursing home pilot
 6  project.--
 7         (3)  To be designated as a teaching nursing home, a
 8  nursing home licensee must, at a minimum:
 9         (h)  Maintain insurance coverage pursuant to s.
10  400.141(20) or proof of financial responsibility in a minimum
11  amount of $750,000. Such proof of financial responsibility may
12  include:
13         1.  Maintaining an escrow account consisting of cash or
14  assets eligible for deposit in accordance with s. 625.52; or
15         2.  Obtaining and maintaining pursuant to chapter 675
16  an unexpired, irrevocable, nontransferable and nonassignable
17  letter of credit issued by any bank or savings association
18  organized and existing under the laws of this state or any
19  bank or savings association organized under the laws of the
20  United States that has its principal place of business in this
21  state or has a branch office which is authorized to receive
22  deposits in this state. The letter of credit shall be used to
23  satisfy the obligation of the facility to the claimant upon
24  presentment of a final judgment indicating liability and
25  awarding damages to be paid by the facility or upon
26  presentment of a settlement agreement signed by all parties to
27  the agreement when such final judgment or settlement is a
28  result of a liability claim against the facility.
29         Section 17.  Adjustment of arbitration
30  limits.--Effective January 1, 2007, the arbitration limits set
31  forth in sections 400.02342(7) and 400.02344(4)(a), Florida
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 1  Statutes, shall be adjusted annually for inflation as measured
 2  by the Consumer Price Index for All Urban Consumers published
 3  by the Bureau of Labor Statistics of the United States
 4  Department of Labor.
 5         Section 18.  Chronically poor-performing nursing home
 6  facilities.--
 7         (1)  It is the intent of the Legislature that the
 8  Agency for Health Care Administration not renew Medicaid
 9  provider agreements with any nursing home facility that has a
10  pattern, over time, of actual harm or immediate jeopardy
11  citations in accordance with state and federal licensure and
12  certification requirements. These facilities, are known as
13  chronically poor-performing nursing home facilities. To abide
14  by the intent of the Legislature, the agency, after consulting
15  with the Florida Health Care Association, the Florida
16  Association of Homes for the Aged, and the American
17  Association of Retired Persons (AARP), shall:
18         (a)  Define a chronically poor-performing nursing
19  facility with a specific period of time for determining a
20  pattern.
21         (b)  Identify, notify, monitor, measure improvement,
22  and, when appropriate, implement nonrenewal of the Medicaid
23  agreements for chronically poor-performing nursing home
24  facilities.
25         (c)  Foster the improvement of chronically
26  poor-performing nursing home facilities by including time
27  limits for demonstrating measurable improvement, including
28  identifying criteria that measure the improvement.
29         (d)  Analyze and prepare a report regarding the
30  existing Medicaid Up-or-Out Program authorized in section
31  400.148, Florida Statutes, including the progress of
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 1  participating nursing home facilities, benefits of the
 2  program, and success in achieving the intended goals.
 3         (e)  Review all administrative procedures and barriers
 4  relating to identifying and eliminating chronically
 5  poor-performing nursing home facilities and make
 6  recommendations for necessary statutory changes to eliminate
 7  barriers.
 8         (2)  It is the intent of the Legislature that a study
 9  be conducted of all federal and state enforcement sanctions
10  and remedies available to the Agency for Health Care
11  Administration for use with nursing home facilities. The study
12  must include, but need not be limited to, a review and
13  evaluation of the agency's use over the past 5 years of
14  receivership, civil money penalties, and denial of payment for
15  new admissions. The study must also evaluate the state survey
16  process, including statewide consistency in survey findings by
17  state area office, the systemic costs for survey appeals, the
18  effectiveness and objectivity of the informal
19  dispute-resolution process in resolving disputes, and recent
20  experiences of reversals of final orders of the agency and
21  modifications of the state's administrative actions concerning
22  surveys and ratings. The results of the study shall be
23  presented to the Governor, the President of the Senate, and
24  the Speaker of the House of Representatives by February 1,
25  2006.
26         Section 19.  The Agency for Health Care Administration
27  must establish a health care quality improvement system for
28  nursing home facilities licensed in this state. The system
29  shall include, but need not be limited to, the following:
30         (1)  Guidelines for internal quality assurance
31  programs, including standards for:
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 1         (a)  Written quality assurance program descriptions.
 2         (b)  Responsibilities of the governing body for
 3  monitoring, evaluating, and improving care.
 4         (c)  An active quality assurance committee.
 5         (d)  Quality assurance program supervision.
 6         (e)  Requiring the program to have adequate resources
 7  to effectively carry out its specified activities.
 8         (f)  Provider participation in the quality assurance
 9  program.
10         (g)  Delegation of quality assurance program
11  activities.
12         (h)  Credentialing and recredentialing.
13         (i)  Enrollee rights and responsibilities.
14         (j)  Availability and accessibility to services and
15  care.
16         (k)  Accessibility and availability of medical records,
17  as well as proper recordkeeping and process for record review.
18         (l)  Utilization review.
19         (m)  A continuity of care system.
20         (n)  Quality assurance program documentation.
21         (o)  Coordination of quality assurance activity with
22  other management activity.
23         (2)  Guidelines requiring the entities to conduct
24  quality-of-care studies that:
25         (a)  Target specific conditions and specific health
26  service delivery issues for focused monitoring and evaluation.
27         (b)  Use clinical care standards or practice guidelines
28  to objectively evaluate the care the entity delivers or fails
29  to deliver for the targeted clinical conditions and health
30  services delivery issues.
31  
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 1         (c)  Use quality indicators derived from the clinical
 2  care standards or practice guidelines to screen and monitor
 3  care and services delivered.
 4         (3)  Guidelines for external quality review of each
 5  contractor which require: focused studies of patterns of care;
 6  individual care review in specific situations; and followup
 7  activities on previous pattern-of-care study findings and
 8  individual-care-review findings. In designing the external
 9  quality review function and determining how it is to operate
10  as part of the state's overall quality improvement system, the
11  agency shall construct its external quality review
12  organization and entity contracts to address each of the
13  following:
14         (a)  Delineating the role of the external quality
15  review organization.
16         (b)  Length of the external quality review organization
17  contract with the state.
18         (c)  Participation of the contracting entities in
19  designing external quality review organization review
20  activities.
21         (d)  Potential variation in the type of clinical
22  conditions and health services delivery issues to be studied
23  at each plan.
24         (e)  Determining the number of focused pattern-of-care
25  studies to be conducted for each plan.
26         (f)  Methods for implementing focused studies.
27         (g)  Individual care review.
28         (9)  Followup activities.
29         Section 20.  Assessments of nursing home facilities.--
30         (1)  Effective October 1, 2005, each nursing home
31  facility licensed under chapter 400, Florida Statutes, shall
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 1  pay an annual assessment for each licensed bed in the
 2  facility. The funds raised by the assessment are intended to
 3  ensure access to nursing home services by the state's elderly
 4  population. The funds raised by the assessment shall be used
 5  as provided in this section.
 6         (2)  The amount of the annual assessment shall be
 7  determined in the following manner:
 8         (a)  The initial annual assessment shall be $10 per bed
 9  per day. Thereafter, the assessment shall be adjusted annually
10  for inflation as measured by the Consumer Price Index for All
11  Urban Consumers published by the Bureau of Labor Statistics of
12  the United States Department of Labor.
13         (b)  The initial assessment shall be determined by the
14  Agency for Health Care Administration and shall be based on
15  the agency's determination of the needs that will be paid for
16  by the assessment and the ability of nursing home service
17  providers to pay the assessment.
18         (3)(a)  It is the intent of the Legislature that funds
19  derived from the assessment may not be used to supplement
20  existing funding of programs providing nursing home services,
21  but rather to enhance the services provided by the current
22  funding.
23         (b)  All funds collected from the assessment must be
24  used to meet the minimum certified nursing assistant staffing
25  of 2.9 hours of direct care per resident per day as required
26  by section 400.23(3), Florida Statutes.
27         Section 21.  If any portion of this act, including this
28  section, is found to be unconstitutional, the entire act shall
29  be null, void, and of no effect.
30         Section 22.  Except as otherwise expressly provided in
31  this act, this act shall take effect October 1, 2005.
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 1            *****************************************
 2                          SENATE SUMMARY
 3    Provides legislative findings and intent relating to
      liability insurance for nursing home facilities. Requires
 4    a resident or the resident's legal representative to
      include a certificate of compliance when a complaint
 5    alleging a violation of a resident's rights is filed with
      the clerk of court. Requires that the presuit notice be
 6    given to each prospective defendant. Requires that
      certain specified information be included with the
 7    notice. Provides that any party may elect to participate
      in voluntary binding arbitration. Provides the procedures
 8    to initiate and conduct a voluntary binding arbitration.
      Permits the parties to use private arbitrators. Requires
 9    multiple defendants to a binding arbitration proceeding
      to apportion a damage award amongst themselves through a
10    second arbitration proceeding. Providing that a
      participating defendant has a cause of action for
11    contribution from other defendants. Provides consequences
      for a claimant or defendant that fails to participate in
12    binding arbitration. Creates procedures to determine if a
      specific claim is subject to binding arbitration.
13    Requires a defendant to pay a damage award within a
      specified time period. Provides for an appeal of an
14    arbitration or apportionment award. Authorizes a party to
      an arbitration or apportionment proceeding to enforce an
15    arbitration award or an apportionment of financial
      responsibility. Requires a nursing home facility to
16    maintain general and professional liability insurance
      with specified insurance carriers. Provides alternative
17    methods to establish financial responsibility for claims
      filed against the nursing home. Provides criteria for a
18    resident's contract which include arbitration or dispute
      resolution provisions. Directs the Agency for Health Care
19    Administration not to renew a Medicaid provider agreement
      with a chronically poor-performing nursing home facility.
20    Requires the agency to recognize increases in
      professional liability insurance costs by providing a
21    pass-through of professional liability insurance in a
      specified amount. Requires that arbitration limits be
22    adjusted annually for inflation. Directs the agency to
      consult with certain specified private organizations to
23    identify and improve poor-performing nursing homes.
      Requires the agency to prepare a report of the Medicaid
24    "Up-or-Out Program." Provides legislative intent that a
      study be conducted of all federal and state enforcement
25    sanctions and remedies available to the agency to use
      with nursing home facilities. Requires a report of the
26    findings of the study to be submitted by a specified
      date. Requires each nursing home facility to pay an
27    annual assessment on each licensed bed after a specified
      date. Provides for the use of the funds collected.
28    Provides a method by which the assessment will be
      determined.  (See bill for details.)
29  
30  
31  
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