CS/HB 385

A bill to be entitled
2An act relating to nursing home facilities; amending s.
3400.118, F.S.; revising provisions relating to frequency
4of quality-of-care monitoring of specified facilities;
5amending s. 400.141, F.S.; authorizing facilities with a
6standard license to provide certified nursing assistant
7training; authorizing the Agency for Health Care
8Administration to adopt rules for the training program;
9amending s. 400.147, F.S.; revising a definition; revising
10reporting requirements under facility internal risk
11management and quality assurance programs; amending s.
12400.19, F.S.; providing conditions for scheduling surveys
13when certain deficiencies are overturned; amending s.
14400.195, F.S.; correcting a cross-reference; amending s.
15400.23, F.S.; revising conditions for documentation of
16compliance with staffing standards; providing an effective
19Be It Enacted by the Legislature of the State of Florida:
21     Section 1.  Paragraph (a) of subsection (2) of section
22400.118, Florida Statutes, is amended to read:
23     400.118  Quality assurance; early warning system;
24monitoring; rapid response teams.--
25     (2)(a)  The agency shall establish within each district
26office one or more quality-of-care monitors, based on the number
27of nursing facilities in the district, to monitor all nursing
28facilities in the district on a regular, unannounced, aperiodic
29basis, including nights, evenings, weekends, and holidays.
30Quality-of-care monitors shall visit each nursing facility
31annually, shall visit each conditionally licensed nursing
32facility at least quarterly, and shall visit other nursing
33facilities as directed by the agency. However, upon request, the
34agency shall conduct quarterly visits at a nursing facility that
35is not conditionally licensed. The request shall be valid
36through the current licensure period, and an extension may be
37requested by the facility at the time of licensure renewal.
38Priority for additional monitoring visits shall be given to
39nursing facilities with a history of resident care deficiencies.
40Quality-of-care monitors shall be registered nurses who are
41trained and experienced in nursing facility regulation,
42standards of practice in long-term care, and evaluation of
43patient care. Individuals in these positions shall not be
44deployed by the agency as a part of the district survey team in
45the conduct of routine, scheduled surveys, but shall function
46solely and independently as quality-of-care monitors. Quality-
47of-care monitors shall assess the overall quality of life in the
48nursing facility and shall assess specific conditions in the
49facility directly related to resident care, including the
50operations of internal quality improvement and risk management
51programs and adverse incident reports. The quality-of-care
52monitor shall include in an assessment visit observation of the
53care and services rendered to residents and formal and informal
54interviews with residents, family members, facility staff,
55resident guests, volunteers, other regulatory staff, and
56representatives of a long-term care ombudsman council or Florida
57advocacy council.
58     Section 2.  Section 400.141, Florida Statutes, is amended
59to read:
60     400.141  Administration and management of nursing home
61facilities.--Every licensed facility shall comply with all
62applicable standards and rules of the agency and shall:
63     (1)  Be under the administrative direction and charge of a
64licensed administrator.
65     (2)  Appoint a medical director licensed pursuant to
66chapter 458 or chapter 459. The agency may establish by rule
67more specific criteria for the appointment of a medical
69     (3)  Have available the regular, consultative, and
70emergency services of physicians licensed by the state.
71     (4)  Provide for resident use of a community pharmacy as
72specified in s. 400.022(1)(q). Any other law to the contrary
73notwithstanding, a registered pharmacist licensed in Florida,
74that is under contract with a facility licensed under this
75chapter or chapter 429, shall repackage a nursing facility
76resident's bulk prescription medication which has been packaged
77by another pharmacist licensed in any state in the United States
78into a unit dose system compatible with the system used by the
79nursing facility, if the pharmacist is requested to offer such
80service. In order to be eligible for the repackaging, a resident
81or the resident's spouse must receive prescription medication
82benefits provided through a former employer as part of his or
83her retirement benefits, a qualified pension plan as specified
84in s. 4972 of the Internal Revenue Code, a federal retirement
85program as specified under 5 C.F.R. s. 831, or a long-term care
86policy as defined in s. 627.9404(1). A pharmacist who correctly
87repackages and relabels the medication and the nursing facility
88which correctly administers such repackaged medication under the
89provisions of this subsection shall not be held liable in any
90civil or administrative action arising from the repackaging. In
91order to be eligible for the repackaging, a nursing facility
92resident for whom the medication is to be repackaged shall sign
93an informed consent form provided by the facility which includes
94an explanation of the repackaging process and which notifies the
95resident of the immunities from liability provided herein. A
96pharmacist who repackages and relabels prescription medications,
97as authorized under this subsection, may charge a reasonable fee
98for costs resulting from the implementation of this provision.
99     (5)  Provide for the access of the facility residents to
100dental and other health-related services, recreational services,
101rehabilitative services, and social work services appropriate to
102their needs and conditions and not directly furnished by the
103licensee. When a geriatric outpatient nurse clinic is conducted
104in accordance with rules adopted by the agency, outpatients
105attending such clinic shall not be counted as part of the
106general resident population of the nursing home facility, nor
107shall the nursing staff of the geriatric outpatient clinic be
108counted as part of the nursing staff of the facility, until the
109outpatient clinic load exceeds 15 a day.
110     (6)  Be allowed and encouraged by the agency to provide
111other needed services under certain conditions. If the facility
112has a standard licensure status, and has had no class I or class
113II deficiencies during the past 2 years or has been awarded a
114Gold Seal under the program established in s. 400.235, it may be
115encouraged by the agency to provide services, including, but not
116limited to, respite and adult day services, which enable
117individuals to move in and out of the facility. A facility is
118not subject to any additional licensure requirements for
119providing these services. Respite care may be offered to persons
120in need of short-term or temporary nursing home services.
121Respite care must be provided in accordance with this part and
122rules adopted by the agency. However, the agency shall, by rule,
123adopt modified requirements for resident assessment, resident
124care plans, resident contracts, physician orders, and other
125provisions, as appropriate, for short-term or temporary nursing
126home services. The agency shall allow for shared programming and
127staff in a facility which meets minimum standards and offers
128services pursuant to this subsection, but, if the facility is
129cited for deficiencies in patient care, may require additional
130staff and programs appropriate to the needs of service
131recipients. A person who receives respite care may not be
132counted as a resident of the facility for purposes of the
133facility's licensed capacity unless that person receives 24-hour
134respite care. A person receiving either respite care for 24
135hours or longer or adult day services must be included when
136calculating minimum staffing for the facility. Any costs and
137revenues generated by a nursing home facility from
138nonresidential programs or services shall be excluded from the
139calculations of Medicaid per diems for nursing home
140institutional care reimbursement.
141     (7)  If the facility has a standard license or is a Gold
142Seal facility, exceeds the minimum required hours of licensed
143nursing and certified nursing assistant direct care per resident
144per day, and is part of a continuing care facility licensed
145under chapter 651 or a retirement community that offers other
146services pursuant to part III of this chapter or part I or part
147III of chapter 429 on a single campus, be allowed to share
148programming and staff. At the time of inspection and in the
149semiannual report required pursuant to subsection (15), a
150continuing care facility or retirement community that uses this
151option must demonstrate through staffing records that minimum
152staffing requirements for the facility were met. Licensed nurses
153and certified nursing assistants who work in the nursing home
154facility may be used to provide services elsewhere on campus if
155the facility exceeds the minimum number of direct care hours
156required per resident per day and the total number of residents
157receiving direct care services from a licensed nurse or a
158certified nursing assistant does not cause the facility to
159violate the staffing ratios required under s. 400.23(3)(a).
160Compliance with the minimum staffing ratios shall be based on
161total number of residents receiving direct care services,
162regardless of where they reside on campus. If the facility
163receives a conditional license, it may not share staff until the
164conditional license status ends. This subsection does not
165restrict the agency's authority under federal or state law to
166require additional staff if a facility is cited for deficiencies
167in care which are caused by an insufficient number of certified
168nursing assistants or licensed nurses. The agency may adopt
169rules for the documentation necessary to determine compliance
170with this provision.
171     (8)  Maintain the facility premises and equipment and
172conduct its operations in a safe and sanitary manner.
173     (9)  If the licensee furnishes food service, provide a
174wholesome and nourishing diet sufficient to meet generally
175accepted standards of proper nutrition for its residents and
176provide such therapeutic diets as may be prescribed by attending
177physicians. In making rules to implement this subsection, the
178agency shall be guided by standards recommended by nationally
179recognized professional groups and associations with knowledge
180of dietetics.
181     (10)  Keep full records of resident admissions and
182discharges; medical and general health status, including medical
183records, personal and social history, and identity and address
184of next of kin or other persons who may have responsibility for
185the affairs of the residents; and individual resident care plans
186including, but not limited to, prescribed services, service
187frequency and duration, and service goals. The records shall be
188open to inspection by the agency.
189     (11)  Keep such fiscal records of its operations and
190conditions as may be necessary to provide information pursuant
191to this part.
192     (12)  Furnish copies of personnel records for employees
193affiliated with such facility, to any other facility licensed by
194this state requesting this information pursuant to this part.
195Such information contained in the records may include, but is
196not limited to, disciplinary matters and any reason for
197termination. Any facility releasing such records pursuant to
198this part shall be considered to be acting in good faith and may
199not be held liable for information contained in such records,
200absent a showing that the facility maliciously falsified such
202     (13)  Publicly display a poster provided by the agency
203containing the names, addresses, and telephone numbers for the
204state's abuse hotline, the State Long-Term Care Ombudsman, the
205Agency for Health Care Administration consumer hotline, the
206Advocacy Center for Persons with Disabilities, the Florida
207Statewide Advocacy Council, and the Medicaid Fraud Control Unit,
208with a clear description of the assistance to be expected from
210     (14)  Submit to the agency the information specified in s.
211400.071(2)(e) for a management company within 30 days after the
212effective date of the management agreement.
213     (15)  Submit semiannually to the agency, or more frequently
214if requested by the agency, information regarding facility
215staff-to-resident ratios, staff turnover, and staff stability,
216including information regarding certified nursing assistants,
217licensed nurses, the director of nursing, and the facility
218administrator. For purposes of this reporting:
219     (a)  Staff-to-resident ratios must be reported in the
220categories specified in s. 400.23(3)(a) and applicable rules.
221The ratio must be reported as an average for the most recent
222calendar quarter.
223     (b)  Staff turnover must be reported for the most recent
22412-month period ending on the last workday of the most recent
225calendar quarter prior to the date the information is submitted.
226The turnover rate must be computed quarterly, with the annual
227rate being the cumulative sum of the quarterly rates. The
228turnover rate is the total number of terminations or separations
229experienced during the quarter, excluding any employee
230terminated during a probationary period of 3 months or less,
231divided by the total number of staff employed at the end of the
232period for which the rate is computed, and expressed as a
234     (c)  The formula for determining staff stability is the
235total number of employees that have been employed for more than
23612 months, divided by the total number of employees employed at
237the end of the most recent calendar quarter, and expressed as a
239     (d)  A nursing facility that has failed to comply with
240state minimum-staffing requirements for 2 consecutive days is
241prohibited from accepting new admissions until the facility has
242achieved the minimum-staffing requirements for a period of 6
243consecutive days. For the purposes of this paragraph, any person
244who was a resident of the facility and was absent from the
245facility for the purpose of receiving medical care at a separate
246location or was on a leave of absence is not considered a new
247admission. Failure to impose such an admissions moratorium
248constitutes a class II deficiency.
249     (e)  A nursing facility which does not have a conditional
250license may be cited for failure to comply with the standards in
251s. 400.23(3)(a)1.a. only if it has failed to meet those
252standards on 2 consecutive days or if it has failed to meet at
253least 97 percent of those standards on any one day.
254     (f)  A facility which has a conditional license must be in
255compliance with the standards in s. 400.23(3)(a) at all times.
257Nothing in this section shall limit the agency's ability to
258impose a deficiency or take other actions if a facility does not
259have enough staff to meet the residents' needs.
260     (16)  Report monthly the number of vacant beds in the
261facility which are available for resident occupancy on the day
262the information is reported.
263     (17)  Notify a licensed physician when a resident exhibits
264signs of dementia or cognitive impairment or has a change of
265condition in order to rule out the presence of an underlying
266physiological condition that may be contributing to such
267dementia or impairment. The notification must occur within 30
268days after the acknowledgment of such signs by facility staff.
269If an underlying condition is determined to exist, the facility
270shall arrange, with the appropriate health care provider, the
271necessary care and services to treat the condition.
272     (18)  If the facility implements a dining and hospitality
273attendant program, ensure that the program is developed and
274implemented under the supervision of the facility director of
275nursing. A licensed nurse, licensed speech or occupational
276therapist, or a registered dietitian must conduct training of
277dining and hospitality attendants. A person employed by a
278facility as a dining and hospitality attendant must perform
279tasks under the direct supervision of a licensed nurse.
280     (19)  Report to the agency any filing for bankruptcy
281protection by the facility or its parent corporation,
282divestiture or spin-off of its assets, or corporate
283reorganization within 30 days after the completion of such
285     (20)  Maintain general and professional liability insurance
286coverage that is in force at all times. In lieu of general and
287professional liability insurance coverage, a state-designated
288teaching nursing home and its affiliated assisted living
289facilities created under s. 430.80 may demonstrate proof of
290financial responsibility as provided in s. 430.80(3)(h).
291     (21)  Maintain in the medical record for each resident a
292daily chart of certified nursing assistant services provided to
293the resident. The certified nursing assistant who is caring for
294the resident must complete this record by the end of his or her
295shift. This record must indicate assistance with activities of
296daily living, assistance with eating, and assistance with
297drinking, and must record each offering of nutrition and
298hydration for those residents whose plan of care or assessment
299indicates a risk for malnutrition or dehydration.
300     (22)  Before November 30 of each year, subject to the
301availability of an adequate supply of the necessary vaccine,
302provide for immunizations against influenza viruses to all its
303consenting residents in accordance with the recommendations of
304the United States Centers for Disease Control and Prevention,
305subject to exemptions for medical contraindications and
306religious or personal beliefs. Subject to these exemptions, any
307consenting person who becomes a resident of the facility after
308November 30 but before March 31 of the following year must be
309immunized within 5 working days after becoming a resident.
310Immunization shall not be provided to any resident who provides
311documentation that he or she has been immunized as required by
312this subsection. This subsection does not prohibit a resident
313from receiving the immunization from his or her personal
314physician if he or she so chooses. A resident who chooses to
315receive the immunization from his or her personal physician
316shall provide proof of immunization to the facility. The agency
317may adopt and enforce any rules necessary to comply with or
318implement this subsection.
319     (23)  Assess all residents for eligibility for pneumococcal
320polysaccharide vaccination (PPV) and vaccinate residents when
321indicated within 60 days after the effective date of this act in
322accordance with the recommendations of the United States Centers
323for Disease Control and Prevention, subject to exemptions for
324medical contraindications and religious or personal beliefs.
325Residents admitted after the effective date of this act shall be
326assessed within 5 working days of admission and, when indicated,
327vaccinated within 60 days in accordance with the recommendations
328of the United States Centers for Disease Control and Prevention,
329subject to exemptions for medical contraindications and
330religious or personal beliefs. Immunization shall not be
331provided to any resident who provides documentation that he or
332she has been immunized as required by this subsection. This
333subsection does not prohibit a resident from receiving the
334immunization from his or her personal physician if he or she so
335chooses. A resident who chooses to receive the immunization from
336his or her personal physician shall provide proof of
337immunization to the facility. The agency may adopt and enforce
338any rules necessary to comply with or implement this subsection.
339     (24)  Annually encourage and promote to its employees the
340benefits associated with immunizations against influenza viruses
341in accordance with the recommendations of the United States
342Centers for Disease Control and Prevention. The agency may adopt
343and enforce any rules necessary to comply with or implement this
346Every facility with a standard license Facilities that have been
347awarded a Gold Seal under the program established in s. 400.235
348may develop a plan to provide certified nursing assistant
349training as prescribed by federal regulations and state rules
350and may apply to the agency for approval of its their program.
351The agency may adopt rules regarding the approval, suspension,
352and termination of a certified nursing assistant training
353program provided by such facility.
354     Section 3.  Subsections (9) through (15) of section
355400.147, Florida Statutes, are renumbered as subsections (8)
356through (14), respectively, and paragraph (e) of subsection (5),
357subsection (7), and present subsection (8) of that section are
358amended to read:
359     400.147  Internal risk management and quality assurance
361     (5)  For purposes of reporting to the agency under this
362section, the term "adverse incident" means:
363     (e)  An event that is reported to law enforcement for
365     (7)(a)  The facility shall initiate an investigation and
366shall notify the agency within 1 business day after the risk
367manager or his or her designee has received a report pursuant to
368paragraph (1)(d). The notification must be made in writing and
369be provided electronically, by facsimile device or overnight
370mail delivery. The notification must include information
371regarding the identity of the affected resident, the type of
372adverse incident, the initiation of an investigation by the
373facility, and whether the events causing or resulting in the
374adverse incident represent a potential risk to any other
375resident. The notification is confidential as provided by law
376and is not discoverable or admissible in any civil or
377administrative action, except in disciplinary proceedings by the
378agency or the appropriate regulatory board. The agency may
379investigate, as it deems appropriate, any such incident and
380prescribe measures that must or may be taken in response to the
381incident. The agency shall review each incident and determine
382whether it potentially involved conduct by the health care
383professional who is subject to disciplinary action, in which
384case the provisions of s. 456.073 shall apply.
385     (b)(8)(a)  Each facility shall complete the investigation
386and submit an adverse incident report to the agency for each
387adverse incident within 15 calendar days after its occurrence.
388If, after a complete investigation, the risk manager determines
389that the incident was not an adverse incident as defined in
390subsection (5), the facility shall include this information in
391the report. The agency shall develop a form for reporting this
393     (c)(b)  The information reported to the agency pursuant to
394paragraph (b) that (a) which relates to persons licensed under
395chapter 458, chapter 459, chapter 461, or chapter 466 shall be
396reviewed by the agency. The agency shall determine whether any
397of the incidents potentially involved conduct by a health care
398professional who is subject to disciplinary action, in which
399case the provisions of s. 456.073 shall apply.
400     (d)(c)  The report submitted to the agency must also
401contain the name of the risk manager of the facility.
402     (e)(d)  The adverse incident report is confidential as
403provided by law and is not discoverable or admissible in any
404civil or administrative action, except in disciplinary
405proceedings by the agency or the appropriate regulatory board.
406     Section 4.  Subsection (3) of section 400.19, Florida
407Statutes, is amended to read:
408     400.19  Right of entry and inspection.--
409     (3)  The agency shall every 15 months conduct at least one
410unannounced inspection to determine compliance by the licensee
411with statutes, and with rules promulgated under the provisions
412of those statutes, governing minimum standards of construction,
413quality and adequacy of care, and rights of residents. The
414survey shall be conducted every 6 months for the next 2-year
415period if the facility has been cited for a class I deficiency,
416has been cited for two or more class II deficiencies arising
417from separate surveys or investigations within a 60-day period,
418or has had three or more substantiated complaints within a 6-
419month period, each resulting in at least one class I or class II
420deficiency. In addition to any other fees or fines in this part,
421the agency shall assess a fine for each facility that is subject
422to the 6-month survey cycle. The fine for the 2-year period
423shall be $6,000, one-half to be paid at the completion of each
424survey. The agency may adjust this fine by the change in the
425Consumer Price Index, based on the 12 months immediately
426preceding the increase, to cover the cost of the additional
427surveys. In the event such deficiencies are overturned as the
428result of administrative action but additional surveys have
429already been conducted pursuant to this section, the most recent
430survey shall be considered a licensure survey for purposes of
431future survey scheduling. The agency shall verify through
432subsequent inspection that any deficiency identified during the
433annual inspection is corrected. However, the agency may verify
434the correction of a class III or class IV deficiency unrelated
435to resident rights or resident care without reinspecting the
436facility if adequate written documentation has been received
437from the facility, which provides assurance that the deficiency
438has been corrected. The giving or causing to be given of advance
439notice of such unannounced inspections by an employee of the
440agency to any unauthorized person shall constitute cause for
441suspension of not fewer than 5 working days according to the
442provisions of chapter 110.
443     Section 5.  Paragraph (d) of subsection (1) of section
444400.195, Florida Statutes, is amended to read:
445     400.195  Agency reporting requirements.--
446     (1)  For the period beginning June 30, 2001, and ending
447June 30, 2005, the Agency for Health Care Administration shall
448provide a report to the Governor, the President of the Senate,
449and the Speaker of the House of Representatives with respect to
450nursing homes. The first report shall be submitted no later than
451December 30, 2002, and subsequent reports shall be submitted
452every 6 months thereafter. The report shall identify facilities
453based on their ownership characteristics, size, business
454structure, for-profit or not-for-profit status, and any other
455characteristics the agency determines useful in analyzing the
456varied segments of the nursing home industry and shall report:
457     (d)  Information regarding deficiencies cited, including
458information used to develop the Nursing Home Guide WATCH LIST
459pursuant to s. 400.191, and applicable rules, a summary of data
460generated on nursing homes by Centers for Medicare and Medicaid
461Services Nursing Home Quality Information Project, and
462information collected pursuant to s. 400.147(8)(9), relating to
464     Section 6.  Paragraph (a) of subsection (3) of section
465400.23, Florida Statutes, is amended to read:
466     400.23  Rules; evaluation and deficiencies; licensure
468     (3)(a)1.  The agency shall adopt rules providing minimum
469staffing requirements for nursing homes. These requirements
470shall include, for each nursing home facility:
471     a.  A minimum certified nursing assistant staffing of 2.6
472hours of direct care per resident per day beginning January 1,
4732003, and increasing to 2.7 hours of direct care per resident
474per day beginning January 1, 2007. Beginning January 1, 2002, no
475facility shall staff below one certified nursing assistant per
47620 residents, and a minimum licensed nursing staffing of 1.0
477hour of direct care per resident per day but never below one
478licensed nurse per 40 residents.
479     b.  Beginning January 1, 2007, a minimum weekly average
480certified nursing assistant staffing of 2.9 hours of direct care
481per resident per day. For the purpose of this sub-subparagraph,
482a week is defined as Sunday through Saturday.
483     2.  Nursing assistants employed under s. 400.211(2) may be
484included in computing the staffing ratio for certified nursing
485assistants only if their job responsibilities include only
486nursing-assistant-related duties.
487     3.  Each nursing home must document compliance with
488staffing standards as required under this paragraph and post
489daily the names of staff on duty for the benefit of facility
490residents and the public. Compliance with federal posting
491requirements shall satisfy the posting requirements of this
493     4.  The agency shall recognize the use of licensed nurses
494for compliance with minimum staffing requirements for certified
495nursing assistants, provided that the facility otherwise meets
496the minimum staffing requirements for licensed nurses and that
497the licensed nurses are performing the duties of a certified
498nursing assistant. Unless otherwise approved by the agency,
499licensed nurses counted toward the minimum staffing requirements
500for certified nursing assistants must exclusively perform the
501duties of a certified nursing assistant for the entire shift and
502not also be counted toward the minimum staffing requirements for
503licensed nurses. If the agency approved a facility's request to
504use a licensed nurse to perform both licensed nursing and
505certified nursing assistant duties, the facility must allocate
506the amount of staff time specifically spent on certified nursing
507assistant duties for the purpose of documenting compliance with
508minimum staffing requirements for certified and licensed nursing
509staff. In no event may the hours of a licensed nurse with dual
510job responsibilities be counted twice.
511     Section 7.  This act shall take effect July 1, 2007.

CODING: Words stricken are deletions; words underlined are additions.