| 1 | A bill to be entitled |
| 2 | An act relating to health care; amending s. 400.461, F.S.; |
| 3 | revising the purpose of part IV of ch. 400, F.S., to |
| 4 | include the licensure of nurse registries; amending s. |
| 5 | 400.462, F.S.; revising definitions; defining the terms |
| 6 | "admission," "advanced registered nurse practitioner," |
| 7 | "direct employee," and "physician assistant" for purposes |
| 8 | of part IV of ch. 400, F.S.; amending s. 400.464, F.S., |
| 9 | relating to licensure of home health agencies; revising |
| 10 | the licensure period; revising and providing additional |
| 11 | administrative, civil, and criminal penalties, sanctions, |
| 12 | and fines; amending s. 400.471, F.S.; revising |
| 13 | requirements for license application by a home health |
| 14 | agency; authorizing the Agency for Health Care |
| 15 | Administration to revoke a license under certain |
| 16 | circumstances; authorizing administrative fines; amending |
| 17 | s. 400.487, F.S.; revising requirements for home health |
| 18 | agency service agreements and treatment orders; amending |
| 19 | s. 400.491, F.S., relating to clinical records; revising |
| 20 | the ownership of patient records generated by a home |
| 21 | health agency; changing the timeframe for a home health |
| 22 | agency to retain patient records; providing for the |
| 23 | disposition of patient records when a home health agency |
| 24 | ceases business; deleting a requirement for a service |
| 25 | provision plan pertaining to nonskilled care; deleting |
| 26 | requirements for maintaining such records; amending s. |
| 27 | 400.494, F.S.; providing for the continued confidentiality |
| 28 | of patient information in compliance with federal law; |
| 29 | providing for disclosure in accordance with certain |
| 30 | specified state laws; deleting a requirement for written |
| 31 | consent of the patient or the patient's guardian for |
| 32 | disclosure of confidential patient information; deleting |
| 33 | an exemption provided for the Medicaid Fraud Control Unit |
| 34 | of the Department of Legal Affairs; amending s. 400.506, |
| 35 | F.S.; revising requirements governing nurse registries; |
| 36 | increasing license fee; increasing the period of |
| 37 | licensure; authorizing administrative penalties; revising |
| 38 | criminal penalties and sanctions; revising certain |
| 39 | requirements pertaining to health care professionals that |
| 40 | provide services on behalf of a nurse registry; amending |
| 41 | s. 400.512, F.S., relating to employment screening; |
| 42 | revising the date on which an annual affidavit must be |
| 43 | signed which verifies that certain personnel of a home |
| 44 | health agency, a nurse registry, or homemaker service have |
| 45 | been screened; amending s. 400.515, F.S.; providing |
| 46 | additional circumstances under which the agency may |
| 47 | petition for an injunction; providing an effective date. |
| 48 |
|
| 49 | Be It Enacted by the Legislature of the State of Florida: |
| 50 |
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| 51 | Section 1. Subsection (2) of section 400.461, Florida |
| 52 | Statutes, is amended to read: |
| 53 | 400.461 Short title; purpose.-- |
| 54 | (2) The purpose of this part is to provide for the |
| 55 | licensure of every home health agency and nurse registry and to |
| 56 | provide for the development, establishment, and enforcement of |
| 57 | basic standards that will ensure the safe and adequate care of |
| 58 | persons receiving health services in their own homes. |
| 59 | Section 2. Section 400.462, Florida Statutes, is amended |
| 60 | to read: |
| 61 | 400.462 Definitions.--As used in this part, the term: |
| 62 | (1) "Administrator" means a direct employee, as defined in |
| 63 | subsection (9) of the home health agency or a related |
| 64 | organization, or of a management company that has a contract to |
| 65 | manage the home health agency, to whom the governing body has |
| 66 | delegated the responsibility for day-to-day administration of |
| 67 | the home health agency. The administrator must be a licensed |
| 68 | physician, physician assistant, or registered nurse licensed to |
| 69 | practice in this state or an individual having at least 1 year |
| 70 | of supervisory or administrative experience in home health care |
| 71 | or in a facility licensed under chapter 395 or under part II or |
| 72 | part III of this chapter. An administrator may manage a maximum |
| 73 | of five licensed home health agencies located within one agency |
| 74 | service district or within an immediately contiguous county. If |
| 75 | the home health agency is licensed under this chapter and is |
| 76 | part of a retirement community that provides multiple levels of |
| 77 | care, an employee of the retirement community may administer the |
| 78 | home health agency and up to a maximum of four entities licensed |
| 79 | under this chapter that are owned, operated, or managed by the |
| 80 | same corporate entity. An administrator shall designate, in |
| 81 | writing, for each licensed entity, a qualified alternate |
| 82 | administrator to serve during absences. |
| 83 | (2) "Admission" means a decision by the home health |
| 84 | agency, during or after an evaluation visit to the patient's |
| 85 | home, that there is reasonable expectation that the patient's |
| 86 | medical, nursing, and social needs for skilled care can be |
| 87 | adequately met by the agency in the patient's place of |
| 88 | residence. |
| 89 | (3) "Advanced registered nurse practitioner" means a |
| 90 | person licensed in this state to practice professional nursing |
| 91 | and certified in advanced or specialized nursing practice, as |
| 92 | defined in s. 464.003. |
| 93 | (4)(2) "Agency" means the Agency for Health Care |
| 94 | Administration. |
| 95 | (5)(3) "Certified nursing assistant" means any person who |
| 96 | has been issued a certificate under part II of chapter 464. The |
| 97 | licensed home health agency or licensed nurse registry shall |
| 98 | ensure that the certified nursing assistant or home health aide |
| 99 | employed by or under contract with the home health agency or |
| 100 | licensed nurse registry is adequately trained to perform the |
| 101 | tasks of a home health aide in the home setting. |
| 102 | (6)(4) "Client" means an elderly, handicapped, or |
| 103 | convalescent individual who receives personal care services, |
| 104 | companion services, or homemaker services in the individual's |
| 105 | home or place of residence. |
| 106 | (7)(5) "Companion" or "sitter" means a person who spends |
| 107 | time with cares for an elderly, handicapped, or convalescent |
| 108 | individual and accompanies such individual on trips and outings |
| 109 | and may prepare and serve meals to such individual. A companion |
| 110 | may not provide hands-on personal care to a client. |
| 111 | (8)(6) "Department" means the Department of Children and |
| 112 | Family Services. |
| 113 | (9) "Direct employee" means an employee for whom one of |
| 114 | the following entities pays withholding taxes: a home health |
| 115 | agency; a management company that has a contract to manage the |
| 116 | home health agency on a day-to-day basis; or an employee leasing |
| 117 | company that has a contract with the home health agency to |
| 118 | handle the payroll and payroll taxes for the home health agency. |
| 119 | (10)(7) "Director of nursing" means a registered nurse who |
| 120 | is a and direct employee, as defined in subsection (9), of the |
| 121 | agency and or related business entity who is a graduate of an |
| 122 | approved school of nursing and is licensed in this state; who |
| 123 | has at least 1 year of supervisory experience as a registered |
| 124 | nurse in a licensed home health agency, a facility licensed |
| 125 | under chapter 395, or a facility licensed under part II or part |
| 126 | III of this chapter; and who is responsible for overseeing the |
| 127 | professional nursing and home health aid delivery of services of |
| 128 | the agency. A director of nursing An employee may be the |
| 129 | director of nursing of a maximum of five licensed home health |
| 130 | agencies operated by a related business entity and located |
| 131 | within one agency service district or within an immediately |
| 132 | contiguous county. If the home health agency is licensed under |
| 133 | this chapter and is part of a retirement community that provides |
| 134 | multiple levels of care, an employee of the retirement community |
| 135 | may serve as the director of nursing of the home health agency |
| 136 | and of up to four entities licensed under this chapter which are |
| 137 | owned, operated, or managed by the same corporate entity. A |
| 138 | director of nursing shall designate, in writing, for each |
| 139 | licensed entity, a qualified alternate registered nurse to serve |
| 140 | during the absence of the director of nursing. |
| 141 | (11)(8) "Home health agency" means an organization that |
| 142 | provides home health services and staffing services. |
| 143 | (12)(9) "Home health agency personnel" means persons who |
| 144 | are employed by or under contract with a home health agency and |
| 145 | enter the home or place of residence of patients at any time in |
| 146 | the course of their employment or contract. |
| 147 | (13)(10) "Home health services" means health and medical |
| 148 | services and medical supplies furnished by an organization to an |
| 149 | individual in the individual's home or place of residence. The |
| 150 | term includes organizations that provide one or more of the |
| 151 | following: |
| 152 | (a) Nursing care. |
| 153 | (b) Physical, occupational, respiratory, or speech |
| 154 | therapy. |
| 155 | (c) Home health aide services. |
| 156 | (d) Dietetics and nutrition practice and nutrition |
| 157 | counseling. |
| 158 | (e) Medical supplies, restricted to drugs and biologicals |
| 159 | prescribed by a physician. |
| 160 | (14)(11) "Home health aide" means a person who is trained |
| 161 | or qualified, as provided by rule, and who provides hands-on |
| 162 | personal care, performs simple procedures as an extension of |
| 163 | therapy or nursing services, assists in ambulation or exercises, |
| 164 | or assists in administering medications as permitted in rule and |
| 165 | for which the person has received training established by the |
| 166 | agency under s. 400.497(1). |
| 167 | (15)(12) "Homemaker" means a person who performs household |
| 168 | chores that include housekeeping, meal planning and preparation, |
| 169 | shopping assistance, and routine household activities for an |
| 170 | elderly, handicapped, or convalescent individual. A homemaker |
| 171 | may not provide hands-on personal care to a client. |
| 172 | (16)(13) "Home infusion therapy provider" means an |
| 173 | organization that employs, contracts with, or refers a licensed |
| 174 | professional who has received advanced training and experience |
| 175 | in intravenous infusion therapy and who administers infusion |
| 176 | therapy to a patient in the patient's home or place of |
| 177 | residence. |
| 178 | (17)(14) "Home infusion therapy" means the administration |
| 179 | of intravenous pharmacological or nutritional products to a |
| 180 | patient in his or her home. |
| 181 | (18)(15) "Nurse registry" means any person that procures, |
| 182 | offers, promises, or attempts to secure health-care-related |
| 183 | contracts for registered nurses, licensed practical nurses, |
| 184 | certified nursing assistants, home health aides, companions, or |
| 185 | homemakers, who are compensated by fees as independent |
| 186 | contractors, including, but not limited to, contracts for the |
| 187 | provision of services to patients and contracts to provide |
| 188 | private duty or staffing services to health care facilities |
| 189 | licensed under chapter 395 or this chapter or other business |
| 190 | entities. |
| 191 | (19)(16) "Organization" means a corporation, government or |
| 192 | governmental subdivision or agency, partnership or association, |
| 193 | or any other legal or commercial entity, any of which involve |
| 194 | more than one health care professional discipline; or a health |
| 195 | care professional and a home health aide or certified nursing |
| 196 | assistant; more than one home health aide; more than one |
| 197 | certified nursing assistant; or a home health aide and a |
| 198 | certified nursing assistant. The term does not include an entity |
| 199 | that provides services using only volunteers or only individuals |
| 200 | related by blood or marriage to the patient or client. |
| 201 | (20)(17) "Patient" means any person who receives home |
| 202 | health services in his or her home or place of residence. |
| 203 | (21)(18) "Personal care" means assistance to a patient in |
| 204 | the activities of daily living, such as dressing, bathing, |
| 205 | eating, or personal hygiene, and assistance in physical |
| 206 | transfer, ambulation, and in administering medications as |
| 207 | permitted by rule. |
| 208 | (22)(19) "Physician" means a person licensed under chapter |
| 209 | 458, chapter 459, chapter 460, or chapter 461. |
| 210 | (23) "Physician assistant" means a person who is a |
| 211 | graduate of an approved program or its equivalent, or meets |
| 212 | standards approved by the boards, and is licensed to perform |
| 213 | medical services delegated by the supervising physician, as |
| 214 | defined in s. 458.347 or s. 459.022. |
| 215 | (24)(20) "Skilled care" means nursing services or |
| 216 | therapeutic services required by law to be delivered by a health |
| 217 | care professional who is licensed under part I of chapter 464; |
| 218 | part I, part III, or part V of chapter 468; or chapter 486 and |
| 219 | who is employed by or under contract with a licensed home health |
| 220 | agency or is referred by a licensed nurse registry. |
| 221 | (25)(21) "Staffing services" means services provided to a |
| 222 | health care facility or other business entity on a temporary |
| 223 | basis by licensed health care personnel and by, including |
| 224 | certified nursing assistants and home heath aides who are |
| 225 | employed by, or work under the auspices of, a licensed home |
| 226 | health agency or who are registered with a licensed nurse |
| 227 | registry. Staffing services may be provided anywhere within the |
| 228 | state. |
| 229 | Section 3. Subsections (1) and (4) of section 400.464, |
| 230 | Florida Statutes, are amended to read: |
| 231 | 400.464 Home health agencies to be licensed; expiration of |
| 232 | license; exemptions; unlawful acts; penalties.-- |
| 233 | (1) Any home health agency must be licensed by the agency |
| 234 | to operate in this state. A license issued to a home health |
| 235 | agency, unless sooner suspended or revoked, expires 2 years 1 |
| 236 | year after its date of issuance. |
| 237 | (4)(a) An organization may not provide, offer, or |
| 238 | advertise home health services to the public unless the |
| 239 | organization has a valid license or is specifically exempted |
| 240 | under this part. An organization that offers or advertises to |
| 241 | the public any service for which licensure or registration is |
| 242 | required under this part must include in the advertisement the |
| 243 | license number or registration regulation number issued to the |
| 244 | organization by the agency. The agency shall assess a fine of |
| 245 | not less than $100 to any licensee or registrant who fails to |
| 246 | include the license or registration number when submitting the |
| 247 | advertisement for publication, broadcast, or printing. The fine |
| 248 | for a second or subsequent offense is $500. The holder of a |
| 249 | license issued under this part may not advertise or indicate to |
| 250 | the public that it holds a home health agency or nurse registry |
| 251 | license other than the one it has been issued. |
| 252 | (b) The operation or maintenance of an unlicensed home |
| 253 | health agency or the performance of any home health services in |
| 254 | violation of this part is declared a nuisance, inimical to the |
| 255 | public health, welfare, and safety. The agency or any state |
| 256 | attorney may, in addition to other remedies provided in this |
| 257 | part, bring an action for an injunction to restrain such |
| 258 | violation, or to enjoin the future operation or maintenance of |
| 259 | the home health agency or the provision of home health services |
| 260 | in violation of this part, until compliance with this part or |
| 261 | the rules adopted under this part has been demonstrated to the |
| 262 | satisfaction of the agency. |
| 263 | (c)(b) A person who violates paragraph (a) is subject to |
| 264 | an injunctive proceeding under s. 400.515. A violation of |
| 265 | paragraph (a) is a deceptive and unfair trade practice and |
| 266 | constitutes a violation of the Florida Deceptive and Unfair |
| 267 | Trade Practices Act under part II of chapter 501. |
| 268 | (d)(c) A person who violates the provisions of paragraph |
| 269 | (a) commits a felony misdemeanor of the third second degree, |
| 270 | punishable as provided in s. 775.082, or s. 775.083, or s. |
| 271 | 775.084. Any person who commits a second or subsequent violation |
| 272 | commits a misdemeanor of the first degree, punishable as |
| 273 | provided in s. 775.082 or s. 775.083. Each day of continuing |
| 274 | violation constitutes a separate offense. |
| 275 | (e) Any person who owns, operates, or maintains an |
| 276 | unlicensed home health agency and who, within 10 working days |
| 277 | after receiving notification from the agency, fails to cease |
| 278 | operation and apply for a license under this part commits a |
| 279 | felony of the third degree, punishable as provided in s. |
| 280 | 775.082, s. 775.083, or s. 775.084. Each day of continued |
| 281 | operation is a separate offense. |
| 282 | (f) Any home health agency that fails to cease operation |
| 283 | after agency notification may be fined $500 for each day of |
| 284 | noncompliance. |
| 285 | Section 4. Section 400.471, Florida Statutes, is amended |
| 286 | to read: |
| 287 | 400.471 Application for license; fee; provisional license; |
| 288 | temporary permit.-- |
| 289 | (1) Application for an initial license or for renewal of |
| 290 | an existing license must be made under oath to the agency on |
| 291 | forms furnished by it and must be accompanied by the appropriate |
| 292 | license fee as provided in subsection (10) (8). The agency must |
| 293 | take final action on an initial licensure application within 60 |
| 294 | days after receipt of all required documentation. |
| 295 | (2) The initial applicant must file with the application |
| 296 | satisfactory proof that the home health agency is in compliance |
| 297 | with this part and applicable rules, including: |
| 298 | (a) A listing of services to be provided., either directly |
| 299 | by the applicant or through contractual arrangements with |
| 300 | existing providers; |
| 301 | (b) The number and discipline of professional staff to be |
| 302 | employed.; and |
| 303 | (c) Proof of financial ability to operate. |
| 304 | (d) Completion of questions concerning volume data on the |
| 305 | renewal application as determined by rule. |
| 306 | (3) An applicant for initial licensure must demonstrate |
| 307 | financial ability to operate by submitting a balance sheet and |
| 308 | income and expense statement for the first 2 years of operation |
| 309 | which provide evidence of having sufficient assets, credit, and |
| 310 | projected revenues to cover liabilities and expenses. The |
| 311 | applicant shall have demonstrated financial ability to operate |
| 312 | if the applicant's assets, credit, and projected revenues meet |
| 313 | or exceed projected liabilities and expenses. All documents |
| 314 | required under this subsection must be prepared in accordance |
| 315 | with generally accepted accounting principles, and must be |
| 316 | compiled the financial statement must be signed by a certified |
| 317 | public accountant. |
| 318 | (4) Each applicant for licensure must comply with the |
| 319 | following requirements: |
| 320 | (a) Upon receipt of a completed, signed, and dated |
| 321 | application, the agency shall require background screening of |
| 322 | the applicant, in accordance with the level 2 standards for |
| 323 | screening set forth in chapter 435. As used in this subsection, |
| 324 | the term "applicant" means the administrator, or a similarly |
| 325 | titled person who is responsible for the day-to-day operation of |
| 326 | the licensed home health agency, and the financial officer, or |
| 327 | similarly titled individual who is responsible for the financial |
| 328 | operation of the licensed home health agency. |
| 329 | (b) The agency may require background screening for a |
| 330 | member of the board of directors of the licensee or an officer |
| 331 | or an individual owning 5 percent or more of the licensee if the |
| 332 | agency reasonably suspects that such individual has been |
| 333 | convicted of an offense prohibited under the level 2 standards |
| 334 | for screening set forth in chapter 435. |
| 335 | (c) Proof of compliance with the level 2 background |
| 336 | screening requirements of chapter 435 which has been submitted |
| 337 | within the previous 5 years in compliance with any other health |
| 338 | care or assisted living licensure requirements of this state is |
| 339 | acceptable in fulfillment of paragraph (a). Proof of compliance |
| 340 | with background screening which has been submitted within the |
| 341 | previous 5 years to fulfill the requirements of the Financial |
| 342 | Services Commission and the Office of Insurance Regulation |
| 343 | pursuant to chapter 651 as part of an application for a |
| 344 | certificate of authority to operate a continuing care retirement |
| 345 | community is acceptable in fulfillment of the Department of Law |
| 346 | Enforcement and Federal Bureau of Investigation background |
| 347 | check. |
| 348 | (d) A provisional license may be granted to an applicant |
| 349 | when each individual required by this section to undergo |
| 350 | background screening has met the standards for the Department of |
| 351 | Law Enforcement background check, but the agency has not yet |
| 352 | received background screening results from the Federal Bureau of |
| 353 | Investigation. A standard license may be granted to the licensee |
| 354 | upon the agency's receipt of a report of the results of the |
| 355 | Federal Bureau of Investigation background screening for each |
| 356 | individual required by this section to undergo background |
| 357 | screening which confirms that all standards have been met, or |
| 358 | upon the granting of a disqualification exemption by the agency |
| 359 | as set forth in chapter 435. Any other person who is required to |
| 360 | undergo level 2 background screening may serve in his or her |
| 361 | capacity pending the agency's receipt of the report from the |
| 362 | Federal Bureau of Investigation. However, the person may not |
| 363 | continue to serve if the report indicates any violation of |
| 364 | background screening standards and a disqualification exemption |
| 365 | has not been requested of and granted by the agency as set forth |
| 366 | in chapter 435. |
| 367 | (e) Each applicant must submit to the agency, with its |
| 368 | application, a description and explanation of any exclusions, |
| 369 | permanent suspensions, or terminations of the licensee or |
| 370 | potential licensee from the Medicare or Medicaid programs. Proof |
| 371 | of compliance with the requirements for disclosure of ownership |
| 372 | and control interest under the Medicaid or Medicare programs may |
| 373 | be accepted in lieu of this submission. |
| 374 | (f) Each applicant must submit to the agency a description |
| 375 | and explanation of any conviction of an offense prohibited under |
| 376 | the level 2 standards of chapter 435 by a member of the board of |
| 377 | directors of the applicant, its officers, or any individual |
| 378 | owning 5 percent or more of the applicant. This requirement does |
| 379 | not apply to a director of a not-for-profit corporation or |
| 380 | organization if the director serves solely in a voluntary |
| 381 | capacity for the corporation or organization, does not regularly |
| 382 | take part in the day-to-day operational decisions of the |
| 383 | corporation or organization, receives no remuneration for his or |
| 384 | her services on the corporation or organization's board of |
| 385 | directors, and has no financial interest and has no family |
| 386 | members with a financial interest in the corporation or |
| 387 | organization, provided that the director and the not-for-profit |
| 388 | corporation or organization include in the application a |
| 389 | statement affirming that the director's relationship to the |
| 390 | corporation satisfies the requirements of this paragraph. |
| 391 | (g) A license may not be granted to an applicant if the |
| 392 | applicant, administrator, or financial officer has been found |
| 393 | guilty of, regardless of adjudication, or has entered a plea of |
| 394 | nolo contendere or guilty to, any offense prohibited under the |
| 395 | level 2 standards for screening set forth in chapter 435, unless |
| 396 | an exemption from disqualification has been granted by the |
| 397 | agency as set forth in chapter 435. |
| 398 | (h) The agency may deny or revoke licensure if the |
| 399 | applicant: |
| 400 | 1. Has falsely represented a material fact in the |
| 401 | application required by paragraph (e) or paragraph (f), or has |
| 402 | omitted any material fact from the application required by |
| 403 | paragraph (e) or paragraph (f); or |
| 404 | 2. has been or is currently excluded, suspended, |
| 405 | terminated from, or has involuntarily withdrawn from |
| 406 | participation in this state's Medicaid program, or the Medicaid |
| 407 | program of any other state, or from participation in the |
| 408 | Medicare program or any other governmental or private health |
| 409 | care or health insurance program. |
| 410 | (i) An application for license renewal must contain the |
| 411 | information required under paragraphs (e) and (f). |
| 412 | (5) The agency may deny or revoke licensure if the |
| 413 | applicant has falsely represented a material fact, or has |
| 414 | omitted any material fact, from the application required by this |
| 415 | section. |
| 416 | (6)(5) The home health agency must also obtain and |
| 417 | maintain the following insurance coverage coverages in an amount |
| 418 | of not less than $250,000 per claim, and the home health agency |
| 419 | must submit proof of coverage with an initial application for |
| 420 | licensure and with each annual application for license renewal: |
| 421 | (a) Malpractice insurance as defined in s. 624.605(1)(k).; |
| 422 | (b) Liability insurance as defined in s. 624.605(1)(b). |
| 423 | (7)(6) Sixty Ninety days before the expiration date, an |
| 424 | application for renewal must be submitted to the agency under |
| 425 | oath on forms furnished by it, and a license must be renewed if |
| 426 | the applicant has met the requirements established under this |
| 427 | part and applicable rules. The home health agency must file with |
| 428 | the application satisfactory proof that it is in compliance with |
| 429 | this part and applicable rules. If there is evidence of |
| 430 | financial instability, the home health agency must submit |
| 431 | satisfactory proof of its financial ability to comply with the |
| 432 | requirements of this part. The agency shall impose an |
| 433 | administrative fine of $50 per day for each day the home health |
| 434 | agency fails to file an application within the timeframe |
| 435 | specified in this subsection. Each day of continuing violation |
| 436 | is a separate violation; however, the aggregate of such fines |
| 437 | may not exceed $500. |
| 438 | (8)(7) When transferring the ownership of a home health |
| 439 | agency, the transferee must submit an application for a license |
| 440 | at least 60 days before the effective date of the transfer. If |
| 441 | the application is filed late, an administrative fine shall be |
| 442 | imposed in the amount of $50 per day. Each day of continuing |
| 443 | violation is a separate violation; however, the aggregate of |
| 444 | such fines may not exceed $500. If the home health agency is |
| 445 | being leased, a copy of the lease agreement must be filed with |
| 446 | the application. |
| 447 | (9) The agency shall accept, in lieu of its own periodic |
| 448 | licensure survey, submission of the survey of an accrediting |
| 449 | organization that is recognized by the agency if the |
| 450 | accreditation of the licensed home health agency is not |
| 451 | provisional and if the licensed home health agency authorizes |
| 452 | release of, and the agency receives the report of, the |
| 453 | accrediting organization. |
| 454 | (10)(8) The license fee and annual renewal fee required of |
| 455 | a home health agency are nonrefundable. The agency shall set the |
| 456 | license fees in an amount that is sufficient to cover its costs |
| 457 | in carrying out its responsibilities under this part, but not to |
| 458 | exceed $2,000 $1,000. However, state, county, or municipal |
| 459 | governments applying for licenses under this part are exempt |
| 460 | from the payment of license fees. All fees collected under this |
| 461 | part must be deposited in the Health Care Trust Fund for the |
| 462 | administration of this part. |
| 463 | (11)(9) The license must be displayed in a conspicuous |
| 464 | place in the administrative office of the home health agency and |
| 465 | is valid only while in the possession of the person to which it |
| 466 | is issued. The license may not be sold, assigned, or otherwise |
| 467 | transferred, voluntarily or involuntarily, and is valid only for |
| 468 | the home health agency and location for which originally issued. |
| 469 | (12)(10) A home health agency against whom a revocation or |
| 470 | suspension proceeding is pending at the time of license renewal |
| 471 | may be issued a provisional license effective until final |
| 472 | disposition by the agency of such proceedings. If judicial |
| 473 | relief is sought from the final disposition, the court that has |
| 474 | jurisdiction may issue a temporary permit for the duration of |
| 475 | the judicial proceeding. |
| 476 | (13)(11) The agency may not issue a license designated as |
| 477 | certified to a home health agency that fails to satisfy the |
| 478 | requirements of a Medicare certification survey from the agency. |
| 479 | (14)(12) The agency may not issue a license to a home |
| 480 | health agency that has any unpaid fines assessed under this |
| 481 | part. |
| 482 | Section 5. Section 400.487, Florida Statutes, is amended |
| 483 | to read: |
| 484 | 400.487 Home health service agreements; physician's, |
| 485 | physician assistant's, and advanced registered nurse |
| 486 | practitioner's treatment orders; patient assessment; |
| 487 | establishment and review of plan of care; provision of services; |
| 488 | orders not to resuscitate.-- |
| 489 | (1) Services provided by a home health agency must be |
| 490 | covered by an agreement between the home health agency and the |
| 491 | patient or the patient's legal representative specifying the |
| 492 | home health services to be provided, the rates or charges for |
| 493 | services paid with private funds, and the sources method of |
| 494 | payment, which may include Medicare, Medicaid, private |
| 495 | insurance, personal funds, or a combination thereof. A home |
| 496 | health agency providing skilled care must make an assessment of |
| 497 | the patient's needs within 48 hours after the start of services. |
| 498 | (2) When required by the provisions of chapter 464; part |
| 499 | I, part III, or part V of chapter 468; or chapter 486, the |
| 500 | attending physician, physician assistant, or advanced registered |
| 501 | nurse practitioner, acting within his or her respective scope of |
| 502 | practice, shall for a patient who is to receive skilled care |
| 503 | must establish treatment orders for a patient who is to receive |
| 504 | skilled care. The treatment orders must be signed by the |
| 505 | physician, physician assistant, or advanced registered nurse |
| 506 | practitioner before a claim for payment for the skilled services |
| 507 | is submitted by the home health agency. If the claim is |
| 508 | submitted to a managed care organization, the treatment orders |
| 509 | must be signed within the time allowed under the provider |
| 510 | agreement. The treatment orders shall within 30 days after the |
| 511 | start of care and must be reviewed, as frequently as the |
| 512 | patient's illness requires, by the physician, physician |
| 513 | assistant, or advanced registered nurse practitioner in |
| 514 | consultation with the home health agency personnel that provide |
| 515 | services to the patient. |
| 516 | (3) A home health agency shall arrange for supervisory |
| 517 | visits by a registered nurse to the home of a patient receiving |
| 518 | home health aide services in accordance with the patient's |
| 519 | direction, and approval, and agreement to pay the charge for the |
| 520 | visits. |
| 521 | (4) Each patient has the right to be informed of and to |
| 522 | participate in the planning of his or her care. Each patient |
| 523 | must be provided, upon request, a copy of the plan of care |
| 524 | established and maintained for that patient by the home health |
| 525 | agency. |
| 526 | (5) When nursing services are ordered, the home health |
| 527 | agency to which a patient has been admitted for care must |
| 528 | provide the initial admission visit, all service evaluation |
| 529 | visits, and the discharge visit by a direct employee qualified |
| 530 | personnel who are on the payroll of, and to whom an IRS payroll |
| 531 | form W-2 will be issued by, the home health agency. Services |
| 532 | provided by others under contractual arrangements to a home |
| 533 | health agency must be monitored and managed by the admitting |
| 534 | home health agency. The admitting home health agency is fully |
| 535 | responsible for ensuring that all care provided through its |
| 536 | employees or contract staff is delivered in accordance with this |
| 537 | part and applicable rules. |
| 538 | (6) The skilled care services provided by a home health |
| 539 | agency, directly or under contract, must be supervised and |
| 540 | coordinated in accordance with the plan of care. |
| 541 | (7) Home health agency personnel may withhold or withdraw |
| 542 | cardiopulmonary resuscitation if presented with an order not to |
| 543 | resuscitate executed pursuant to s. 401.45. The agency shall |
| 544 | adopt rules providing for the implementation of such orders. |
| 545 | Home health personnel and agencies shall not be subject to |
| 546 | criminal prosecution or civil liability, nor be considered to |
| 547 | have engaged in negligent or unprofessional conduct, for |
| 548 | withholding or withdrawing cardiopulmonary resuscitation |
| 549 | pursuant to such an order and rules adopted by the agency. |
| 550 | Section 6. Section 400.491, Florida Statutes, is amended |
| 551 | to read: |
| 552 | 400.491 Clinical records.-- |
| 553 | (1) The home health agency must maintain for each patient |
| 554 | who receives skilled care a clinical record that includes |
| 555 | pertinent past and current medical, nursing, social and other |
| 556 | therapeutic information, the treatment orders, and other such |
| 557 | information as is necessary for the safe and adequate care of |
| 558 | the patient. When home health services are terminated, the |
| 559 | record must show the date and reason for termination. Such |
| 560 | records are considered patient records under s. 400.494 s. |
| 561 | 456.057, and must be maintained by the home health agency for 6 |
| 562 | 5 years following termination of services. If a patient |
| 563 | transfers to another home health agency, a copy of his or her |
| 564 | record must be provided to the other home health agency upon |
| 565 | request. |
| 566 | (2) If a licensed home health agency ceases to remain in |
| 567 | business, it shall notify each patient whose clinical records it |
| 568 | has in its possession of the fact that it is ceasing operations |
| 569 | and give each patient 15 calendar days to retrieve his or her |
| 570 | clinical record at a specified location within 2 hours' driving |
| 571 | time of the patient's residence between, at a minimum, the hours |
| 572 | of 10 a.m. and 3 p.m. Monday through Friday. The home health |
| 573 | agency must maintain for each client who receives nonskilled |
| 574 | care a service provision plan. Such records must be maintained |
| 575 | by the home health agency for 1 year following termination of |
| 576 | services. |
| 577 | Section 7. Section 400.494, Florida Statutes, is amended |
| 578 | to read: |
| 579 | 400.494 Information about patients confidential.-- |
| 580 | (1) Information about patients received by persons |
| 581 | employed by, or providing services to, a home health agency or |
| 582 | received by the licensing agency through reports or inspection |
| 583 | shall be confidential and exempt from the provisions of s. |
| 584 | 119.07(1) and shall only not be disclosed to any person, other |
| 585 | than the patient, as permitted under the provisions of 45 C.F.R. |
| 586 | ss. 160.102, 160.103, and 164, subpart A, commonly referred to |
| 587 | as the HIPAA Privacy Regulation; except that clinical records |
| 588 | described in ss. 381.004, 384.29, 385.202, 392.65, 394.4615, |
| 589 | 395.404, 397.501, and 760.40 shall be disclosed as authorized in |
| 590 | those sections without the written consent of that patient or |
| 591 | the patient's guardian. |
| 592 | (2) This section does not apply to information lawfully |
| 593 | requested by the Medicaid Fraud Control Unit of the Department |
| 594 | of Legal Affairs. |
| 595 | Section 8. Subsections (3), (5), (7), (8), (10), (13), |
| 596 | (14), and (17) of section 400.506, Florida Statutes, are amended |
| 597 | to read: |
| 598 | 400.506 Licensure of nurse registries; requirements; |
| 599 | penalties.-- |
| 600 | (3) Application for license must be made to the Agency for |
| 601 | Health Care Administration on forms furnished by it and must be |
| 602 | accompanied by the appropriate licensure fee, as established by |
| 603 | rule and not to exceed the cost of regulation under this part. |
| 604 | The licensure fee for nurse registries may not exceed $2,000 |
| 605 | $1,000 and must be deposited in the Health Care Trust Fund. |
| 606 | (5) A license issued for the operation of a nurse |
| 607 | registry, unless sooner suspended or revoked, expires 2 years 1 |
| 608 | year after its date of issuance. Sixty days before the |
| 609 | expiration date, an application for renewal must be submitted to |
| 610 | the Agency for Health Care Administration on forms furnished by |
| 611 | it. The Agency for Health Care Administration shall renew the |
| 612 | license if the applicant has met the requirements of this |
| 613 | section and applicable rules. A nurse registry against which a |
| 614 | revocation or suspension proceeding is pending at the time of |
| 615 | license renewal may be issued a conditional license effective |
| 616 | until final disposition by the Agency for Health Care |
| 617 | Administration of such proceedings. If judicial relief is sought |
| 618 | from the final disposition, the court having jurisdiction may |
| 619 | issue a conditional license for the duration of the judicial |
| 620 | proceeding. |
| 621 | (7) A person that provides, offers, or advertises to the |
| 622 | public that it provides any service for which licensure is |
| 623 | required under this section must include in such advertisement |
| 624 | the license number issued to it by the Agency for Health Care |
| 625 | Administration. The agency shall assess a fine of not less than |
| 626 | $100 against any licensee who fails to include the license |
| 627 | number when submitting the advertisement for publication, |
| 628 | broadcast, or printing. The fine for a second or subsequent |
| 629 | offense is $500. |
| 630 | (8)(a) It is unlawful for a person to provide, offer, or |
| 631 | advertise to the public services as defined by rule without |
| 632 | obtaining a valid license from the Agency for Health Care |
| 633 | Administration. It is unlawful for any holder of a license to |
| 634 | advertise or hold out to the public that he or she holds a |
| 635 | license for other than that for which he or she actually holds a |
| 636 | license. A person who violates this subsection is subject to |
| 637 | injunctive proceedings under s. 400.515. |
| 638 | (b) A person who violates paragraph (a) commits a felony |
| 639 | of the third degree, punishable as provided in s. 775.082, s. |
| 640 | 775.083, or s. 775.084. Each day of continuing violation is a |
| 641 | separate offense. |
| 642 | (c) Any person who owns, operates, or maintains an |
| 643 | unlicensed nurse registry and who, within 10 working days after |
| 644 | receiving notification from the agency, fails to cease operation |
| 645 | and apply for a license under this part commits a felony of the |
| 646 | third degree, punishable as provided in s. 775.082, s. 775.083, |
| 647 | or s. 775.084. Each day of continued operation is a separate |
| 648 | offense. |
| 649 | (d) If a nurse registry fails to cease operation after |
| 650 | agency notification, the agency may impose a fine of $500 for |
| 651 | each day of noncompliance. |
| 652 | (10)(a) A nurse registry may refer for contract in private |
| 653 | residences registered nurses and licensed practical nurses |
| 654 | registered and licensed under part I of chapter 464, certified |
| 655 | nursing assistants certified under part II of chapter 464, home |
| 656 | health aides who present documented proof of successful |
| 657 | completion of the training required by rule of the agency, and |
| 658 | companions or homemakers for the purposes of providing those |
| 659 | services authorized under s. 400.509(1). Each person referred by |
| 660 | a nurse registry must provide current documentation that he or |
| 661 | she is free from communicable diseases. |
| 662 | (b) A certified nursing assistant or home health aide may |
| 663 | be referred for a contract to provide care to a patient in his |
| 664 | or her home only if that patient is under a physician's care. A |
| 665 | certified nursing assistant or home health aide referred for |
| 666 | contract in a private residence shall be limited to assisting a |
| 667 | patient with bathing, dressing, toileting, grooming, eating, |
| 668 | physical transfer, and those normal daily routines the patient |
| 669 | could perform for himself or herself were he or she physically |
| 670 | capable. A certified nursing assistant or home health aide may |
| 671 | not provide medical or other health care services that require |
| 672 | specialized training and that may be performed only by licensed |
| 673 | health care professionals. The nurse registry shall obtain the |
| 674 | name and address of the attending physician and send written |
| 675 | notification to the physician within 48 hours after a contract |
| 676 | is concluded that a certified nursing assistant or home health |
| 677 | aide will be providing care for that patient. |
| 678 | (c) At the time of contracting for services, the nurse |
| 679 | registry shall advise the patient, the patient's family, or a |
| 680 | person acting on behalf of the patient of the availability of |
| 681 | registered nurses to make visits to the patient's home at an |
| 682 | additional cost. A registered nurse shall make monthly visits to |
| 683 | the patient's home to assess the patient's condition and quality |
| 684 | of care being provided by the certified nursing assistant or |
| 685 | home health aide. Any condition which, in the professional |
| 686 | judgment of the nurse, requires further medical attention shall |
| 687 | be reported to the attending physician and the nurse registry. |
| 688 | The assessment shall become a part of the patient's file with |
| 689 | the nurse registry and may be reviewed by the agency during |
| 690 | their survey procedure. |
| 691 | (13) Each nurse registry must comply with the procedures |
| 692 | set forth in s. 400.512 for maintaining records of the work |
| 693 | employment history of all persons referred for contract and is |
| 694 | subject to the standards and conditions set forth in that |
| 695 | section. However, an initial screening may not be required for |
| 696 | persons who have been continuously registered with the nurse |
| 697 | registry since October 1, 2000 September 30, 1990. |
| 698 | (14) The nurse registry must maintain the application on |
| 699 | file, and that file must be open to the inspection of the Agency |
| 700 | for Health Care Administration. The nurse registry must maintain |
| 701 | on file the name and address of the patient or client to whom |
| 702 | the nurse or other nurse registry personnel are referred is sent |
| 703 | for contract and the amount of the fee received by the nurse |
| 704 | registry. A nurse registry must maintain the file that includes |
| 705 | the application and other applicable documentation for 3 years |
| 706 | after the date of the last file entry of patient-related or |
| 707 | client-related information. |
| 708 | (17) All persons referred for contract in private |
| 709 | residences by a nurse registry must comply with the following |
| 710 | requirements for a plan of treatment: |
| 711 | (a) When, in accordance with the privileges and |
| 712 | restrictions imposed upon a nurse under part I of chapter 464, |
| 713 | the delivery of care to a patient is under the direction or |
| 714 | supervision of a physician or when a physician is responsible |
| 715 | for the medical care of the patient, a medical plan of treatment |
| 716 | must be established for each patient receiving care or treatment |
| 717 | provided by a licensed nurse in the home. The original medical |
| 718 | plan of treatment must be timely signed by the physician, |
| 719 | physician assistant, or advanced registered nurse practitioner, |
| 720 | acting within his or her respective scope of practice, and |
| 721 | reviewed by him or her in consultation with the licensed nurse |
| 722 | at least every 2 months. Any additional order or change in |
| 723 | orders must be obtained from the physician, physician assistant, |
| 724 | or advanced registered nurse practitioner and reduced to writing |
| 725 | and timely signed by the physician, physician assistant, or |
| 726 | advanced registered nurse practitioner. The delivery of care |
| 727 | under a medical plan of treatment must be substantiated by the |
| 728 | appropriate nursing notes or documentation made by the nurse in |
| 729 | compliance with nursing practices established under part I of |
| 730 | chapter 464. |
| 731 | (b) Whenever a medical plan of treatment is established |
| 732 | for a patient, the initial medical plan of treatment, any |
| 733 | amendment to the plan, additional order or change in orders, and |
| 734 | copy of nursing notes must be filed in the office of the nurse |
| 735 | registry. |
| 736 | Section 9. Subsection (2) of section 400.512, Florida |
| 737 | Statutes, is amended to read: |
| 738 | 400.512 Screening of home health agency personnel; nurse |
| 739 | registry personnel; and companions and homemakers.--The agency |
| 740 | shall require employment or contractor screening as provided in |
| 741 | chapter 435, using the level 1 standards for screening set forth |
| 742 | in that chapter, for home health agency personnel; persons |
| 743 | referred for employment by nurse registries; and persons |
| 744 | employed by companion or homemaker services registered under s. |
| 745 | 400.509. |
| 746 | (2) The administrator of each home health agency, the |
| 747 | managing employee of each nurse registry, and the managing |
| 748 | employee of each companion or homemaker service registered under |
| 749 | s. 400.509 must sign an affidavit annually, under penalty of |
| 750 | perjury, stating that all personnel hired or, contracted with, |
| 751 | or registered on or after October 1, 2000 October 1, 1994, who |
| 752 | enter the home of a patient or client in their service capacity |
| 753 | have been screened and that its remaining personnel have worked |
| 754 | for the home health agency or registrant continuously since |
| 755 | before October 1, 1994. |
| 756 | Section 10. Section 400.515, Florida Statutes, is amended |
| 757 | to read: |
| 758 | 400.515 Injunction proceedings.--In addition to the other |
| 759 | powers provided under this chapter, the agency may institute |
| 760 | injunction proceedings in a court of competent jurisdiction to |
| 761 | restrain or prevent the establishment or operation of a home |
| 762 | health agency or nurse registry that does not have a license or |
| 763 | that is in violation of any provision of this part or any rule |
| 764 | adopted pursuant to this part. The agency for Health Care |
| 765 | Administration may also institute injunction proceedings in a |
| 766 | court of competent jurisdiction when violation of this part or |
| 767 | of applicable rules constitutes an emergency affecting the |
| 768 | immediate health and safety of a patient or client. |
| 769 | Section 11. This act shall take effect July 1, 2005. |