CS for CS for CS for SB 1374 First Engrossed
20081374e1
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A bill to be entitled
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An act relating to home health care; amending s. 400.462,
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F.S.; revising and adding definitions; amending s.
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400.464, F.S.; authorizing a home infusion therapy
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provider to be licensed as a nurse registry; deleting
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provisions related to Medicare reimbursement; amending s.
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400.471, F.S.; requiring an applicant for a home health
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agency license to submit to the Agency for Health Care
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Administration a business plan and evidence of contingency
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funding, and disclose other controlling ownership
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interests in health care entities; requiring certain
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standards in documentation demonstrating financial ability
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to operate; requiring an applicant for a new home health
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agency license to submit a surety bond of a specified
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amount to the Agency for Health Care Administration;
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authorizing the agency to adopt rules for the submission
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of other forms of security; providing procedures for the
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agency with respect to making a claim against a surety
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bond or security; limiting the timing of receipt and the
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number of applications for a new home health agency
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license which the agency may accept each quarter;
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providing an exception under certain circumstances for a
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home health agency that is part of a retirement community;
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specifying a procedure for the agency to follow in
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selecting applications to process for a new home health
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agency license; providing that the change of ownership of
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a home health agency that is licensed at the time of the
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sale is not restricted or limited; providing for the
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future expiration of such provisions; prohibiting the
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agency from issuing an initial license to a home health
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agency licensure applicant located within 20 miles of a
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licensed home health agency that has common controlling
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interests; prohibiting the transfer of an application to
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another home health agency; requiring submission of an
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initial application to relocate a licensed home health to
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another geographic service area; imposing the burden of
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proof on an applicant to demonstrate that a factual
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determination made by the agency is not supported by a
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preponderance of the evidence; amending s. 400.474, F.S.;
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providing additional grounds under which the Agency for
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Health Care Administration may take disciplinary action
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against a home health agency; creating s. 400.476, F.S.;
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establishing staffing requirements for home health
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agencies; reducing the number of home health agencies that
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an administrator or director of nursing may serve;
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requiring that an alternate administrator be designated in
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writing; limiting the period that a home health agency
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that provides skilled nursing care may operate without a
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director of nursing; requiring notification upon the
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termination and replacement of a director of nursing;
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requiring the Agency for Health Care Administration to
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take administrative enforcement action against a home
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health agency for noncompliance with the notification and
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staffing requirements for a director of nursing; exempting
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a home health agency that does not provide skilled care,
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or provides only physical, occupational, or speech therapy
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from requirements related to a director of nursing;
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providing training requirements for certified nursing
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assistants and home health aides; amending s. 400.484,
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F.S.; requiring the agency to conduct the first
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unannounced survey of a newly licensed home health agency
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within a specified period after issuing the license;
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requiring that the agency impose administrative fines for
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certain deficiencies; increasing the administrative fines
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imposed for certain deficiencies; amending s. 400.488,
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F.S.; deleting provisions authorizing the administration
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of medication to home health patients by unlicensed staff;
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providing for the delegation of nursing tasks as provided
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in ch. 464, F.S., and related rules; amending s. 400.491,
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F.S.; extending the period that a home health agency must
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retain records of the nonskilled care it provides;
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amending s. 400.497, F.S.; requiring that the Agency for
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Health Care Administration adopt rules related to
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standards for the director of nursing of a home health
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agency, requirements for a director of nursing to submit
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certified staff activity logs pursuant to an agency
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request, quality assurance programs, and inspections
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related to an application for a change in ownership;
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amending s. 400.506, F.S.; providing training requirements
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for certified nursing assistants and home health aides
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referred for contract by a nurse registry; providing for
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the denial, suspension, or revocation of nurse registry
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license and fines for paying remuneration to certain
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entities in exchange for patient referrals or refusing
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fair remuneration in exchange for patient referrals;
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amending s. 400.518, F.S.; providing for a fine to be
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imposed against a home health agency that provides
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complimentary staffing to an assisted care community in
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exchange for patient referrals; amending s. 409.906, F.S.;
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requiring durable medical equipment providers enrolled in
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the Medicaid program to be accredited and have a physical
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business location that meets specified conditions;
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providing for exceptions of certain business location
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criteria; requiring a durable medical equipment provider
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enrolled in the Medicaid program to obtain a surety bond
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of a specified amount and for certain staff to undergo
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background screening; providing for exemptions from
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accreditation and the surety bond for specified durable
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medical equipment providers; requiring the Agency for
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Health Care Administration to review the process for prior
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authorization of home health agency visits and determine
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whether modifications to the process are necessary;
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requiring the agency to report to the Legislature on the
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feasibility of accessing the Medicare system to determine
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recipient eligibility for home health services; providing
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appropriations and authorizing additional positions;
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providing an effective date.
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Be It Enacted by the Legislature of the State of Florida:
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Section 1. Section 400.462, Florida Statutes, is amended to
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read:
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400.462 Definitions.--As used in this part, the term:
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(1) "Administrator" means a direct employee, as defined in
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subsection (9), who is. The administrator must be a licensed
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physician, physician assistant, or registered nurse licensed to
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practice in this state or an individual having at least 1 year of
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supervisory or administrative experience in home health care or
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in a facility licensed under chapter 395, under part II of this
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chapter, or under part I of chapter 429. An administrator may
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manage a maximum of five licensed home health agencies located
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within one agency service district or within an immediately
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contiguous county. If the home health agency is licensed under
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this chapter and is part of a retirement community that provides
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multiple levels of care, an employee of the retirement community
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may administer the home health agency and up to a maximum of four
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entities licensed under this chapter or chapter 429 that are
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owned, operated, or managed by the same corporate entity. An
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administrator shall designate, in writing, for each licensed
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entity, a qualified alternate administrator to serve during
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absences.
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(2) "Admission" means a decision by the home health agency,
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during or after an evaluation visit to the patient's home, that
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there is reasonable expectation that the patient's medical,
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nursing, and social needs for skilled care can be adequately met
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by the agency in the patient's place of residence. Admission
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includes completion of an agreement with the patient or the
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patient's legal representative to provide home health services as
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required in s. 400.487(1).
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(3) "Advanced registered nurse practitioner" means a person
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licensed in this state to practice professional nursing and
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certified in advanced or specialized nursing practice, as defined
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in s. 464.003.
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(4) "Agency" means the Agency for Health Care
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Administration.
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(5) "Certified nursing assistant" means any person who has
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been issued a certificate under part II of chapter 464. The
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licensed home health agency or licensed nurse registry shall
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ensure that the certified nursing assistant employed by or under
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contract with the home health agency or licensed nurse registry
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is adequately trained to perform the tasks of a home health aide
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in the home setting.
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(6) "Client" means an elderly, handicapped, or convalescent
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individual who receives companion services or homemaker services
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in the individual's home or place of residence.
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(7) "Companion" or "sitter" means a person who spends time
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with or cares for an elderly, handicapped, or convalescent
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individual and accompanies such individual on trips and outings
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and may prepare and serve meals to such individual. A companion
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may not provide hands-on personal care to a client.
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(8) "Department" means the Department of Children and
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Family Services.
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(9) "Direct employee" means an employee for whom one of the
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following entities pays withholding taxes: a home health agency;
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a management company that has a contract to manage the home
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health agency on a day-to-day basis; or an employee leasing
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company that has a contract with the home health agency to handle
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the payroll and payroll taxes for the home health agency.
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(10) "Director of nursing" means a registered nurse who is
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a direct employee, as defined in subsection (9), of the agency
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and who is a graduate of an approved school of nursing and is
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licensed in this state; who has at least 1 year of supervisory
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experience as a registered nurse; and who is responsible for
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overseeing the professional nursing and home health aid delivery
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of services of the agency. A director of nursing may be the
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director of a maximum of five licensed home health agencies
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operated by a related business entity and located within one
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agency service district or within an immediately contiguous
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county. If the home health agency is licensed under this chapter
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and is part of a retirement community that provides multiple
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levels of care, an employee of the retirement community may serve
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as the director of nursing of the home health agency and of up to
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four entities licensed under this chapter or chapter 429 which
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are owned, operated, or managed by the same corporate entity.
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(11) "Fair market value" means the value in arms length
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transactions, consistent with the price that an asset would bring
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as the result of bona fide bargaining between well-informed
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buyers and sellers who are not otherwise in a position to
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generate business for the other party, or the compensation that
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would be included in a service agreement as the result of bona
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fide bargaining between well-informed parties to the agreement
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who are not otherwise in a position to generate business for the
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other party, on the date of acquisition of the asset or at the
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time of the service agreement.
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(12)(11) "Home health agency" means an organization that
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provides home health services and staffing services.
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(13)(12) "Home health agency personnel" means persons who
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are employed by or under contract with a home health agency and
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enter the home or place of residence of patients at any time in
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the course of their employment or contract.
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(14)(13) "Home health services" means health and medical
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services and medical supplies furnished by an organization to an
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individual in the individual's home or place of residence. The
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term includes organizations that provide one or more of the
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following:
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(a) Nursing care.
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(b) Physical, occupational, respiratory, or speech therapy.
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(c) Home health aide services.
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(d) Dietetics and nutrition practice and nutrition
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counseling.
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(e) Medical supplies, restricted to drugs and biologicals
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prescribed by a physician.
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(15)(14) "Home health aide" means a person who is trained
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or qualified, as provided by rule, and who provides hands-on
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personal care, performs simple procedures as an extension of
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therapy or nursing services, assists in ambulation or exercises,
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or assists in administering medications as permitted in rule and
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for which the person has received training established by the
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agency under s. 400.497(1). The licensed home health agency or
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licensed nurse registry shall ensure that the home health aide
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employed by or under contract with the home health agency or
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licensed nurse registry is adequately trained to perform the
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tasks of a home health aide in the home setting.
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(16)(15) "Homemaker" means a person who performs household
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chores that include housekeeping, meal planning and preparation,
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shopping assistance, and routine household activities for an
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elderly, handicapped, or convalescent individual. A homemaker may
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not provide hands-on personal care to a client.
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(17)(16) "Home infusion therapy provider" means an
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organization that employs, contracts with, or refers a licensed
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professional who has received advanced training and experience in
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intravenous infusion therapy and who administers infusion therapy
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to a patient in the patient's home or place of residence.
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(18)(17) "Home infusion therapy" means the administration
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of intravenous pharmacological or nutritional products to a
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patient in his or her home.
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(19) "Immediate family member" means a husband or wife; a
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birth or adoptive parent, child, or sibling; a stepparent,
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stepchild, stepbrother, or stepsister; a father-in-law, mother-
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in-law, son-in-law, daughter-in-law, brother-in-law, or sister-
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in-law; a grandparent or grandchild; or a spouse of a grandparent
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or grandchild.
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(20) "Medical director" means a physician who is a
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volunteer with, or who receives remuneration from, a home health
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agency.
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(21)(18) "Nurse registry" means any person that procures,
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offers, promises, or attempts to secure health-care-related
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contracts for registered nurses, licensed practical nurses,
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certified nursing assistants, home health aides, companions, or
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homemakers, who are compensated by fees as independent
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contractors, including, but not limited to, contracts for the
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provision of services to patients and contracts to provide
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private duty or staffing services to health care facilities
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licensed under chapter 395, this chapter, or chapter 429 or other
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business entities.
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(22)(19) "Organization" means a corporation, government or
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governmental subdivision or agency, partnership or association,
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or any other legal or commercial entity, any of which involve
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more than one health care professional discipline; a health care
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professional and a home health aide or certified nursing
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assistant; more than one home health aide; more than one
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certified nursing assistant; or a home health aide and a
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certified nursing assistant. The term does not include an entity
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that provides services using only volunteers or only individuals
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related by blood or marriage to the patient or client.
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(23)(20) "Patient" means any person who receives home
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health services in his or her home or place of residence.
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(24)(21) "Personal care" means assistance to a patient in
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the activities of daily living, such as dressing, bathing,
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eating, or personal hygiene, and assistance in physical transfer,
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ambulation, and in administering medications as permitted by
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rule.
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(25)(22) "Physician" means a person licensed under chapter
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458, chapter 459, chapter 460, or chapter 461.
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(26)(23) "Physician assistant" means a person who is a
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graduate of an approved program or its equivalent, or meets
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standards approved by the boards, and is licensed to perform
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medical services delegated by the supervising physician, as
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(27) "Remuneration" means any payment or other benefit made
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directly or indirectly, overtly or covertly, in cash or in kind.
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(28)(24) "Skilled care" means nursing services or
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therapeutic services required by law to be delivered by a health
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care professional who is licensed under part I of chapter 464;
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part I, part III, or part V of chapter 468; or chapter 486 and
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who is employed by or under contract with a licensed home health
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agency or is referred by a licensed nurse registry.
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(29)(25) "Staffing services" means services provided to a
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health care facility, school, or other business entity on a
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temporary or school-year basis pursuant to a written contract by
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licensed health care personnel and by certified nursing
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assistants and home heath aides who are employed by, or work
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under the auspices of, a licensed home health agency or who are
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registered with a licensed nurse registry. Staffing services may
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be provided anywhere within the state.
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Section 2. Subsection (3) of section 400.464, Florida
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Statutes, is amended to read:
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400.464 Home Health agencies to be licensed; expiration of
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license; exemptions; unlawful acts; penalties.--
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(3) A Any home infusion therapy provider must shall be
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licensed as a home health agency or nurse registry. Any infusion
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therapy provider currently authorized to receive Medicare
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reimbursement under a DME - Part B Provider number for the
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provision of infusion therapy shall be licensed as a non
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certified home health agency. Such a provider shall continue to
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receive that specified Medicare reimbursement without being
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certified so long as the reimbursement is limited to those items
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authorized pursuant to the DME - Part B Provider Agreement and
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the agency is licensed in compliance with the other provisions of
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this part.
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Section 3. Section 400.471, Florida Statutes, is amended to
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read:
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400.471 Application for license; fee; bond; limitation on
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applications accepted.--
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(1) Each applicant for licensure must comply with all
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provisions of this part and part II of chapter 408.
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(2) In addition to the requirements of part II of chapter
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408, the initial applicant must file with the application
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satisfactory proof that the home health agency is in compliance
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with this part and applicable rules, including:
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(a) A listing of services to be provided, either directly
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by the applicant or through contractual arrangements with
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existing providers.
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(b) The number and discipline of professional staff to be
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employed.
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(c) Completion of questions concerning volume data on the
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renewal application as determined by rule.
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(d) A business plan, signed by the applicant, which details
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the home health agency's methods to obtain patients and its plan
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to recruit and maintain staff.
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(e) Evidence of contingency funding equal to 1 month's
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average operating expense over the first year of operation.
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(f) A balance sheet, income and expense statement, and
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statement of cash flows for the first 2 years of operation which
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provide evidence of having sufficient assets, credit, and
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projected revenues to cover liabilities and expenses. The
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applicant has demonstrated financial ability to operate if the
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applicant's assets, credit, and projected revenues meet or exceed
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projected liabilities and expenses. An applicant may not project
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an operating margin for any month in the first year of operation
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of 15 percent or greater. All documents required under this
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paragraph must be prepared in accordance with generally accepted
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accounting principles and compiled and signed by a certified
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public accountant.
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(g) All other ownership interests in health care entities
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for each controlling interest, as defined in part II of chapter
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408.
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(3) In addition to the requirements of s. 408.810, the home
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health agency must also obtain and maintain the following
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insurance coverage in an amount of not less than $250,000 per
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claim, and the home health agency must submit proof of coverage
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with an initial application for licensure and with each
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application for license renewal:
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(a) Malpractice insurance as defined in s. 624.605(1)(k).
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(b) Liability insurance as defined in s. 624.605(1)(b).
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(4) The agency shall accept, in lieu of its own periodic
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licensure survey, submission of the survey of an accrediting
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organization that is recognized by the agency if the
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accreditation of the licensed home health agency is not
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provisional and if the licensed home health agency authorizes
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release of, and the agency receives the report of, the
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accrediting organization.
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(5) In accordance with s. 408.805, an applicant or licensee
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shall pay a fee for each license application submitted under this
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part, part II of chapter 408, and applicable rules. The amount of
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the fee shall be established by rule and shall be set at an
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amount that is sufficient to cover the agency's costs in carrying
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out its responsibilities under this part, but not to exceed
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$2,000 per biennium. However, state, county, or municipal
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governments applying for licenses under this part are exempt from
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the payment of license fees.
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(6) The agency may not issue a license designated as
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certified to a home health agency that fails to satisfy the
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requirements of a Medicare certification survey from the agency.
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(7) An applicant for a new home health agency license must
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submit a surety bond of $50,000, or other equivalent means of
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security acceptable to the agency, such as an irrevocable letter
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of credit or a deposit in a trust account or financial
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institution, payable to the Agency for Health Care
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Administration. A surety bond is the only form of security that
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may be submitted until the agency has adopted a rule providing
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for other equivalent means of security. A surety bond or other
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equivalent means of security must be valid from initial licensure
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until the end of the first license-renewal period. The purpose of
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this bond is to secure payment of any administrative penalties
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imposed by the agency and any fees and costs incurred by the
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agency regarding the home health agency license which are
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authorized under state law and which the licensee fails to pay 30
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days after the fine or costs become final. The agency may make a
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claim against the surety bond or security until the later of:
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(a) One year after the license ceases to be valid if the
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license is not renewed for a second biennial period;
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(b) One year after the license has been renewed a second
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time; or
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(c) Sixty days after any administrative or legal
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proceeding, including any appeal, is concluded involving an
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administrative penalty, fees, or costs for an act or omission
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that occurred at any time during the first 4 years after the
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license was initially issued.
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(8)(a) The agency may accept for processing for a new home
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health agency license only the following number of applications
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quarterly, as determined using the number of licensed home health
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agencies in each geographic service area on June 1, 2008, and the
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Florida Population Estimates for Counties and Municipalities,
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April 1, 2007, as published by the Office of Economic and
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Demographic Research of the Legislature:
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1. Five for each geographic service area in which the
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number of residents over the age of 64 per number of licensed
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home health agencies in that geographic service area is between
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2,000 and 2,999;
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2. Four for each geographic service area in which the
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number of residents over the age of 64 per number of licensed
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home health agencies in that geographic service area is between
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1,000 and 1,999; and
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3. Three for each geographic service area in which the
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number of residents over the age of 64 per number of licensed
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home health agencies in that geographic service area is between 0
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and 999.
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However, an application for a new home health agency license that
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is part of a retirement community providing multiple levels of
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care and that will provide home health services exclusively to
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residents of that facility is not subject to the quarterly
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limitation and may not be counted as a new application for
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purposes of the quarterly limitation. If the home health agency
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provides home health services to persons outside that facility,
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the agency shall impose a moratorium on the license in accordance
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with s. 408.814 and revoke the home health agency license. The
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home health agency may reapply for a new home health agency
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license and is subject to the limits on the agency's acceptance
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of new applications.
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(b) The agency shall accept applications for a new home
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health agency license only during the first 5 business days of a
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calendar quarter. Applications for a new home health agency
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license received during this period, except an application for a
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new home health agency license that is part of a retirement
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community providing multiple levels of care and that will provide
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home health services exclusively to residents of that facility,
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must be grouped according to the geographic service area in which
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the home health agency is to be located. When the number of
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applications received for a geographic service area exceeds the
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number of applications authorized to be accepted for processing
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in paragraph (a), the agency shall use a lottery system to select
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the applications to be accepted for processing for that
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geographic service area as follows:
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1. A number shall be assigned to each application received
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for that geographic service area.
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2. For each geographic service area, the agency shall put
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the numbers assigned to each application in an opaque container.
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3. The agency shall select the applicable quantity of
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numbers for that geographic service area without viewing the
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contents of the container.
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4. The application that corresponds to the selected number
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shall be accepted for processing.
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The selection of applications to be accepted for processing must
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be a public process conducted in Tallahassee and noticed for a
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date during the first 6 through 10 business days of the calendar
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quarter.
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shall return to the sender all applications and fees for a new
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home health agency license which were received:
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1. And not accepted for processing pursuant to the lottery-
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selection process set forth in paragraph (b); or
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2. Before or after the first 5 business days of a calendar
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quarter.
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(d) This subsection does not restrict or limit the change
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of ownership of a home health agency that is licensed at the time
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of sale, and an application for a home health agency license
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submitted by the new owner is exempt from the provisions of
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paragraphs (a) and (b).
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(e) This subsection expires July 1, 2011.
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(9) The agency may not issue an initial license to a home
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health agency licensure applicant if the applicant shares common
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controlling interests with another licensed home health agency
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that is located within 20 miles of the applicant and is in the
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same county. The agency must return the application and fees to
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the applicant.
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(10) An application for a home health agency license may
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not be transferred to another home health agency or controlling
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interest prior to issuance of the license.
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(11) A licensed home health agency that seeks to relocate
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to a different geographic service area not listed on its license
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must submit an initial application for a home health agency
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license for the new location.
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(12) When an applicant alleges that a factual determination
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made by the agency is incorrect, the burden of proof is on the
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applicant to demonstrate that such determination is, in light of
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the total record, not supported by the preponderance of the
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evidence.
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Section 4. Section 400.474, Florida Statutes, is amended to
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read:
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400.474 Administrative penalties.--
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(1) The agency may deny, revoke, and suspend a license and
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impose an administrative fine in the manner provided in chapter
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120.
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(2) Any of the following actions by a home health agency or
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its employee is grounds for disciplinary action by the agency:
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(a) Violation of this part, part II of chapter 408, or of
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applicable rules.
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(b) An intentional, reckless, or negligent act that
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materially affects the health or safety of a patient.
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(c) Knowingly providing home health services in an
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unlicensed assisted living facility or unlicensed adult family-
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care home, unless the home health agency or employee reports the
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unlicensed facility or home to the agency within 72 hours after
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providing the services.
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(d) Preparing or maintaining fraudulent patient records,
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such as, but not limited to, charting ahead, recording vital
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signs or symptoms that were not personally obtained or observed
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by the home health agency's staff at the time indicated,
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borrowing patients or patient records from other home health
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agencies to pass a survey or inspection, or falsifying
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signatures.
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(e) Failing to provide at least one service directly to a
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patient for a period of 60 days.
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(3) The agency shall impose a fine of $1,000 against a home
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health agency that demonstrates a pattern of falsifying:
519
(a) Documents of training for home health aides or
520
certified nursing assistants; or
521
(b) Health statements for staff providing direct care to
522
patients.
523
524
A pattern may be demonstrated by a showing of at least three
525
fraudulent entries or documents. The fine shall be imposed for
526
each fraudulent document or, if multiple staff members are
527
included on one document, for each fraudulent entry on the
528
document.
529
(4) The agency shall impose a fine of $5,000 against a home
530
health agency that demonstrates a pattern of billing any payor
531
for services not provided. A pattern may be demonstrated by a
532
showing of at least three billings for services not provided
533
within a 12-month period. The fine must be imposed for each
534
incident that is falsely billed. The agency may also:
535
(a) Require payback of all funds;
536
(b) Revoke the license; or
537
(c) Issue a moratorium in accordance with s. 408.814.
538
(5) The agency shall impose a fine of $5,000 against a home
539
health agency that demonstrates a pattern of failing to provide a
540
service specified in the home health agency's written agreement
541
with a patient or the patient's legal representative, or the plan
542
of care for that patient, unless a reduction in service is
543
mandated by Medicare, Medicaid, or a state program or as provided
544
in s. 400.492(3). A pattern may be demonstrated by a showing of
545
at least three incidences, regardless of the patient or service,
546
where the home health agency did not provide a service specified
547
in a written agreement or plan of care during a 3-month period.
548
The agency shall impose the fine for each occurrence. The agency
549
may also impose additional administrative fines under s. 400.484
550
for the direct or indirect harm to a patient, or deny, revoke, or
551
suspend the license of the home health agency for a pattern of
552
failing to provide a service specified in the home health
553
agency's written agreement with a patient or the plan of care for
554
that patient.
555
(6) The agency may deny, revoke, or suspend the license of
556
a home health agency and shall impose a fine of $5,000 against a
557
home health agency that:
558
(a) Gives remuneration for staffing services to:
559
1. Another home health agency with which it has formal or
560
informal patient-referral transactions or arrangements; or
561
2. A health services pool with which it has formal or
562
informal patient-referral transactions or arrangements,
563
564
unless the home health agency has activated its comprehensive
565
emergency management plan in accordance with s. 400.492. This
566
paragraph does not apply to a Medicare-certified home health
567
agency that provides fair market value remuneration for staffing
568
services to a non-Medicare-certified home health agency that is
569
part of a continuing care facility licensed under chapter 651 for
570
providing services to its own residents if each resident
571
receiving home health services pursuant to this arrangement
572
attests in writing that he or she made a decision without
573
influence from staff of the facility to select, from a list of
574
Medicare-certified home health agencies provided by the facility,
575
that Medicare-certified home health agency to provide the
576
services.
577
(b) Provides services to residents in an assisted living
578
facility for which the home health agency does not receive fair
579
market value remuneration.
580
(c) Provides staffing to an assisted living facility for
581
which the home health agency does not receive fair market value
582
remuneration.
583
(d) Fails to provide the agency, upon request, with copies
584
of all contracts with assisted living facilities which were
585
executed within 5 years before the request.
586
(e) Gives remuneration to a case manager, discharge
587
planner, facility-based staff member, or third-party vendor who
588
is involved in the discharge-planning process of a facility
589
licensed under chapter 395 or this chapter from whom the home
590
health agency receives referrals.
591
(f) Fails to submit to the agency, within 15 days after the
592
end of each calendar quarter, a written report that includes the
593
following data based on data as it existed on the last day of the
594
quarter:
595
1. The number of insulin-dependent diabetic patients
596
receiving insulin-injection services from the home health agency;
597
2. The number of patients receiving both home health
598
services from the home health agency and hospice services;
599
3. The number of patients receiving home health services
600
from that home health agency; and
601
4. The names and license numbers of nurses whose primary
602
job responsibility is to provide home health services to patients
603
and who received remuneration from the home health agency in
604
excess of $25,000 during the calendar quarter.
605
(g) Gives cash, or its equivalent, to a Medicare or
606
Medicaid beneficiary.
607
(h) Has more than one medical director contract in effect
608
at one time or more than one medical director contract and one
609
contract with a physician-specialist whose services are mandated
610
for the home health agency in order to qualify to participate in
611
a federal or state health care program at one time.
612
(i) Gives remuneration to a physician without a medical
613
director contract being in effect. The contract must:
614
1. Be in writing and signed by both parties;
615
2. Provide for remuneration that is at fair market value
616
for an hourly rate, which must be supported by invoices submitted
617
by the medical director describing the work performed, the dates
618
on which that work was performed, and the duration of that work;
619
and
620
3. Be for a term of at least 1 year.
621
622
The hourly rate specified in the contract may not be increased
623
during the term of the contract. The home health agency may not
624
execute a subsequent contract with that physician which has an
625
increased hourly rate and covers any portion of the term that was
626
in the original contract.
627
(j) Gives remuneration to:
628
1. A physician, and the home health agency is in violation
629
of paragraph (h) or paragraph (i);
630
2. A member of the physician's office staff; or
631
3. An immediate family member of the physician,
632
633
if the home health agency has received a patient referral in the
634
preceding 12 months from that physician or physician's office
635
staff.
636
(k) Fails to provide to the agency, upon request, copies of
637
all contracts with a medical director which were executed within
638
5 years before the request.
639
(7)(3)(a) In addition to the requirements of s. 408.813,
640
any person, partnership, or corporation that violates s. 408.812
641
or s. 408.813 and that previously operated a licensed home health
642
agency or concurrently operates both a licensed home health
643
agency and an unlicensed home health agency commits a felony of
644
the third degree punishable as provided in s. 775.082, s.
646
(b) If any home health agency is found to be operating
647
without a license and that home health agency has received any
648
government reimbursement for services, the agency shall make a
649
fraud referral to the appropriate government reimbursement
650
program.
651
Section 5. Section 400.476, Florida Statutes, is created to
652
read:
653
400.476 Staffing requirements; notifications; limitations
654
on staffing services.--
655
(1) ADMINISTRATOR.--
656
(a) An administrator may manage only one home health
657
agency, except that an administrator may manage up to five home
658
health agencies if all five home health agencies have identical
659
controlling interests as defined in s. 408.803 and are located
660
within one agency geographic service area or within an
661
immediately contiguous county. If the home health agency is
662
licensed under this chapter and is part of a retirement community
663
that provides multiple levels of care, an employee of the
664
retirement community may administer the home health agency and up
665
to a maximum of four entities licensed under this chapter or
666
chapter 429 which all have identical controlling interests as
667
defined in s. 408.803. An administrator shall designate, in
668
writing, for each licensed entity, a qualified alternate
669
administrator to serve during the administrator's absence.
670
(b) An administrator of a home health agency who is a
671
licensed physician, physician assistant, or registered nurse
672
licensed to practice in this state may also be the director of
673
nursing for a home health agency. An administrator may serve as a
674
director of nursing for up to the number of entities authorized
675
in subsection (2) only if there are 10 or fewer full-time
676
equivalent employees and contracted personnel in each home health
677
agency.
678
(2) DIRECTOR OF NURSING.--
679
(a) A director of nursing may be the director of nursing
680
for:
681
1. Up to two licensed home health agencies if the agencies
682
have identical controlling interests as defined in s. 408.803 and
683
are located within one agency geographic service area or within
684
an immediately contiguous county; or
685
2. Up to five licensed home health agencies if:
686
a. All of the home health agencies have identical
687
controlling interests as defined in s. 408.803;
688
b. All of the home health agencies are located within one
689
agency geographic service area or within an immediately
690
contiguous county; and
691
c. Each home health agency has a registered nurse who meets
692
the qualifications of a director of nursing and who has a written
693
delegation from the director of nursing to serve as the director
694
of nursing for that home health agency when the director of
695
nursing is not present.
696
697
If a home health agency licensed under this chapter is part of a
698
retirement community that provides multiple levels of care, an
699
employee of the retirement community may serve as the director of
700
nursing of the home health agency and up to a maximum of four
701
entities, other than home health agencies, licensed under this
702
chapter or chapter 429 which all have identical controlling
703
interests as defined in s. 408.803.
704
(b) A home health agency that provides skilled nursing care
705
may not operate for more than 30 calendar days without a director
706
of nursing. A home health agency that provides skilled nursing
707
care and the director of nursing of a home health agency must
708
notify the agency within 10 business days after termination of
709
the services of the director of nursing for the home health
710
agency. A home health agency that provides skilled nursing care
711
must notify the agency of the identity and qualifications of the
712
new director of nursing within 10 days after the new director is
713
hired. If a home health agency that provides skilled nursing care
714
operates for more than 30 calendar days without a director of
715
nursing, the home health agency commits a class II deficiency. In
716
addition to the fine for a class II deficiency, the agency may
717
issue a moratorium in accordance with s. 408.814 or revoke the
718
license. The agency shall fine a home health agency that fails to
719
notify the agency as required in this paragraph $1,000 for the
720
first violation and $2,000 for a repeat violation. The agency may
721
not take administrative action against a home health agency if
722
the director of nursing fails to notify the department upon
723
termination of services as the director of nursing for the home
724
health agency.
725
(c) A home health agency that does not provide skilled
726
care, or provides only physical, occupational, or speech therapy
727
is not required to have a director of nursing and is exempt from
728
paragraph (b).
729
(3) TRAINING.--A home health agency shall ensure that each
730
certified nursing assistant employed by or under contract with
731
the home health agency and each home health aide employed by or
732
under contract with the home health agency is adequately trained
733
to perform the tasks of a home health aide in the home setting.
734
(4) STAFFING.--Staffing services may be provided anywhere
735
within the state.
736
Section 6. Section 400.484, Florida Statutes, is amended to
737
read:
738
400.484 Right of inspection; deficiencies; fines.--
739
(1) In addition to the requirements of s. 408.811, the
740
agency may make such inspections and investigations as are
741
necessary in order to determine the state of compliance with this
742
part, part II of chapter 408, and applicable rules. The agency
743
shall conduct an unannounced survey of each home health agency
744
within 15 months after issuing a new license to the home health
745
agency.
746
(2) The agency shall impose fines for various classes of
747
deficiencies in accordance with the following schedule:
748
(a) A class I deficiency is any act, omission, or practice
749
that results in a patient's death, disablement, or permanent
750
injury, or places a patient at imminent risk of death,
751
disablement, or permanent injury. Upon finding a class I
752
deficiency, the agency shall may impose an administrative fine in
753
the amount of $15,000 $5,000 for each occurrence and each day
754
that the deficiency exists.
755
(b) A class II deficiency is any act, omission, or practice
756
that has a direct adverse effect on the health, safety, or
757
security of a patient. Upon finding a class II deficiency, the
758
agency shall may impose an administrative fine in the amount of
759
$5,000 $1,000 for each occurrence and each day that the
760
deficiency exists.
761
(c) A class III deficiency is any act, omission, or
762
practice that has an indirect, adverse effect on the health,
763
safety, or security of a patient. Upon finding an uncorrected or
764
repeated class III deficiency, the agency shall may impose an
765
administrative fine not to exceed $1,000 $500 for each occurrence
766
and each day that the uncorrected or repeated deficiency exists.
767
(d) A class IV deficiency is any act, omission, or practice
768
related to required reports, forms, or documents which does not
769
have the potential of negatively affecting patients. These
770
violations are of a type that the agency determines do not
771
threaten the health, safety, or security of patients. Upon
772
finding an uncorrected or repeated class IV deficiency, the
773
agency shall may impose an administrative fine not to exceed $500
774
$200 for each occurrence and each day that the uncorrected or
775
repeated deficiency exists.
776
(3) In addition to any other penalties imposed pursuant to
777
this section or part, the agency may assess costs related to an
778
investigation that results in a successful prosecution, excluding
779
costs associated with an attorney's time.
780
Section 7. Section 400.488, Florida Statutes, is amended to
781
read:
782
400.488 Nurse delegation Assistance with self-
783
administration of medication.--A home health agency nurse may
784
delegate nursing tasks as provided in chapter 464 and related
785
rules.
786
(1) For purposes of this section, the term:
787
(a) "Informed consent" means advising the patient, or the
788
patient's surrogate, guardian, or attorney in fact, that the
789
patient may be receiving assistance with self-administration of
790
medication from an unlicensed person.
791
(b) "Unlicensed person" means an individual not currently
792
licensed to practice nursing or medicine who is employed by or
793
under contract to a home health agency and who has received
794
training with respect to assisting with the self-administration
795
of medication as provided by agency rule.
796
(2) Patients who are capable of self-administering their
797
own medications without assistance shall be encouraged and
798
allowed to do so. However, an unlicensed person may, consistent
799
with a dispensed prescription's label or the package directions
800
of an over-the-counter medication, assist a patient whose
801
condition is medically stable with the self-administration of
802
routine, regularly scheduled medications that are intended to be
803
self-administered. Assistance with self-medication by an
804
unlicensed person may occur only upon a documented request by,
805
and the written informed consent of, a patient or the patient's
806
surrogate, guardian, or attorney in fact. For purposes of this
807
section, self-administered medications include both legend and
808
over-the-counter oral dosage forms, topical dosage forms, and
809
topical ophthalmic, otic, and nasal dosage forms, including
810
solutions, suspensions, sprays, and inhalers.
811
(3) Assistance with self-administration of medication
812
includes:
813
(a) Taking the medication, in its previously dispensed,
814
properly labeled container, from where it is stored and bringing
815
it to the patient.
816
(b) In the presence of the patient, reading the label,
817
opening the container, removing a prescribed amount of medication
818
from the container, and closing the container.
819
(c) Placing an oral dosage in the patient's hand or placing
820
the dosage in another container and helping the patient by
821
lifting the container to his or her mouth.
822
(d) Applying topical medications.
823
(e) Returning the medication container to proper storage.
824
(f) Keeping a record of when a patient receives assistance
825
with self-administration under this section.
826
(4) Assistance with self-administration does not include:
827
(a) Mixing, compounding, converting, or calculating
828
medication doses, except for measuring a prescribed amount of
829
liquid medication or breaking a scored tablet or crushing a
830
tablet as prescribed.
831
(b) The preparation of syringes for injection or the
832
administration of medications by any injectable route.
833
(c) Administration of medications through intermittent
834
positive pressure breathing machines or a nebulizer.
835
(d) Administration of medications by way of a tube inserted
836
in a cavity of the body.
837
(e) Administration of parenteral preparations.
838
(f) Irrigations or debriding agents used in the treatment
839
of a skin condition.
840
(g) Rectal, urethral, or vaginal preparations.
841
(h) Medications ordered by the physician or health care
842
professional with prescriptive authority to be given "as needed,"
843
unless the order is written with specific parameters that
844
preclude independent judgment on the part of the unlicensed
845
person, and at the request of a competent patient.
846
(i) Medications for which the time of administration, the
847
amount, the strength of dosage, the method of administration, or
848
the reason for administration requires judgment or discretion on
849
the part of the unlicensed person.
850
(5) Assistance with the self-administration of medication
851
by an unlicensed person as described in this section does not
852
constitute administration as defined in s. 465.003.
853
(6) The agency may by rule establish procedures and
854
interpret terms as necessary to administer this section.
855
Section 8. Subsection (2) of section 400.491, Florida
856
Statutes, is amended to read:
857
400.491 Clinical records.--
858
(2) The home health agency must maintain for each client
859
who receives nonskilled care a service provision plan. Such
860
records must be maintained by the home health agency for 3 years
861
1 year following termination of services.
862
Section 9. Present subsections (5), (6), (7), and (8) of
863
section 400.497, Florida Statutes, are renumbered as subsections
864
(7), (8), (9), and (10), respectively, and a new subsections (5)
865
and (6) are added to that section, to read:
866
400.497 Rules establishing minimum standards.--The agency
867
shall adopt, publish, and enforce rules to implement part II of
868
chapter 408 and this part, including, as applicable, ss. 400.506
869
and 400.509, which must provide reasonable and fair minimum
870
standards relating to:
871
(5) Oversight by the director of nursing. The agency shall
872
develop rules related to:
873
(a) Standards that address oversight responsibilities by
874
the director of nursing of skilled nursing and personal care
875
services provided by the home health agency's staff;
876
(b) Requirements for a director of nursing to provide to
877
the agency, upon request, a certified daily report of the home
878
health services provided by a specified direct employee or
879
contracted staff member on behalf of the home health agency. The
880
agency may request a certified daily report only for a period not
881
to exceed 2 years prior to the date of the request; and
882
(c) A quality assurance program for home health services
883
provided by the home health agency.
884
(6) Conditions for using a recent unannounced licensure
885
inspection for the inspection required in s. 408.806 related to a
886
licensure application associated with a change in ownership of a
887
licensed home health agency.
888
Section 10. Paragraph (a) of subsection (6) of section
889
400.506, Florida Statutes, is amended, present subsections (15)
890
and (16) of that section are renumbered as subsections (16) and
891
(17), respectively, and a new subsection (15) is added to that
892
section, to read:
893
400.506 Licensure of nurse registries; requirements;
894
penalties.--
895
(6)(a) A nurse registry may refer for contract in private
896
residences registered nurses and licensed practical nurses
897
registered and licensed under part I of chapter 464, certified
898
nursing assistants certified under part II of chapter 464, home
899
health aides who present documented proof of successful
900
completion of the training required by rule of the agency, and
901
companions or homemakers for the purposes of providing those
902
services authorized under s. 400.509(1). A licensed nurse
903
registry shall ensure that each certified nursing assistant
904
referred for contract by the nurse registry and each home health
905
aide referred for contract by the nurse registry is adequately
906
trained to perform the tasks of a home health aide in the home
907
setting. Each person referred by a nurse registry must provide
908
current documentation that he or she is free from communicable
909
diseases.
910
(15)(a) The agency may deny, suspend, or revoke the
911
license of a nurse registry and shall impose a fine of $5,000
912
against a nurse registry that:
913
1. Provides services to residents in an assisted living
914
facility for which the nurse registry does not receive fair
915
market value remuneration.
916
2. Provides staffing to an assisted living facility for
917
which the nurse registry does not receive fair market value
918
remuneration.
919
3. Fails to provide the agency, upon request, with copies
920
of all contracts with assisted living facilities which were
921
executed within the last 5 years.
922
4. Gives remuneration to a case manager, discharge
923
planner, facility-based staff member, or third-party vendor who
924
is involved in the discharge-planning process of a facility
925
licensed under chapter 395 or this chapter and from whom the
926
nurse registry receives referrals.
927
5. Gives remuneration to a physician, a member of the
928
physician's office staff, or an immediate family member of the
929
physician, and the nurse registry received a patient referral
930
in the last 12 months from that physician or the physician's
931
office staff.
932
(b) The agency shall also impose an administrative fine
933
of $15,000 if the nurse registry refers nurses, certified
934
nursing assistants, home health aides, or other staff without
935
charge to a facility licensed under chapter 429 in return for
936
patient referrals from the facility.
937
(c) The proceeds of all fines collected under this
938
subsection shall be deposited into the Health Care Trust Fund.
939
Section 11. Subsection (4) is added to section 400.518,
940
Florida Statutes, to read:
941
400.518 Prohibited referrals to home health agencies.--
942
(4) The agency shall impose an administrative fine of
943
$15,000 if a home health agency provides nurses, certified
944
nursing assistants, home health aides, or other staff without
945
charge to a facility licensed under chapter 429 in return for
946
patient referrals from the facility. The proceeds of such fines
947
shall be deposited into the Health Care Trust Fund.
948
Section 12. Subsection (10) of section 409.906, Florida
949
Statutes, is amended to read:
950
409.906 Optional Medicaid services.--Subject to specific
951
appropriations, the agency may make payments for services which
952
are optional to the state under Title XIX of the Social Security
953
Act and are furnished by Medicaid providers to recipients who are
954
determined to be eligible on the dates on which the services were
955
provided. Any optional service that is provided shall be provided
956
only when medically necessary and in accordance with state and
957
federal law. Optional services rendered by providers in mobile
958
units to Medicaid recipients may be restricted or prohibited by
959
the agency. Nothing in this section shall be construed to prevent
960
or limit the agency from adjusting fees, reimbursement rates,
961
lengths of stay, number of visits, or number of services, or
962
making any other adjustments necessary to comply with the
963
availability of moneys and any limitations or directions provided
964
for in the General Appropriations Act or chapter 216. If
965
necessary to safeguard the state's systems of providing services
966
to elderly and disabled persons and subject to the notice and
967
review provisions of s. 216.177, the Governor may direct the
968
Agency for Health Care Administration to amend the Medicaid state
969
plan to delete the optional Medicaid service known as
970
"Intermediate Care Facilities for the Developmentally Disabled."
971
Optional services may include:
972
(10) DURABLE MEDICAL EQUIPMENT.--The agency may authorize
973
and pay for certain durable medical equipment and supplies
974
provided to a Medicaid recipient as medically necessary. As of
975
January 1, 2009, the agency shall limit payment for durable
976
medical equipment and supplies to providers who meet all of the
977
criteria in this subsection.
978
(a) Durable medical equipment and medical supply providers
979
must be accredited by an Agency for Health Care Administration
980
approved accreditation organization specifically designated as a
981
durable medical equipment accrediting organization. The provider
982
must be re-accredited periodically and is subject to unannounced
983
reviews by the accrediting organization.
984
(b) Durable medical equipment and medical supply providers
985
must have a physical business location with durable medical
986
equipment and medical supplies on site and must be readily
987
available to the general public. A licensed orthotist or
988
prosthetist that provides only orthotic or prosthetic devices as
989
a Medicaid durable medical equipment provider is exempt from the
990
requirements of subparagraph 2., subparagraph 4., and
991
subparagraph 6. The physical business location must meet the
992
following criteria:
993
1. The location must maintain a substantial inventory that
994
is readily available and sufficient to meet the needs of the
995
durable medical equipment business location's customers;
996
2. The location must be clearly identified with signage
997
that can be read from 20 feet away which readily identifies the
998
business location as a business that furnishes durable medical
999
equipment, medical supplies, or both;
1000
3. The location must have a functional landline business
1001
telephone;
1002
4. The physical business location may not be located within
1003
or at the same numbered street address as another Medicaid-
1004
enrolled durable medical equipment and medical supply provider or
1005
an enrolled Medicaid pharmacy that is also enrolled as a durable
1006
medical equipment provider. A location within or at the same
1007
numbered street address includes unique suite or storefront
1008
numbers assigned by the United States Postal Service or the
1009
building's owner;
1010
5. For out-of-state providers, the physical business
1011
location must be no more than 50 miles from the Florida state
1012
line. Exceptions may be made for manufacturers of a specific type
1013
of unique durable medical equipment that is not otherwise
1014
available from other durable medical equipment distributors or
1015
providers located within the state; and
1016
6. Unless the provider is an out-of-state manufacturer
1017
business that is located more than 50 miles from the Florida
1018
state line and is excepted from sub-paragraph 5., the location
1019
must be easily accessible to the public during normal, scheduled,
1020
and posted business hours and must operate no less than 5 hours a
1021
day, and no less than 5 days a week, with the exception of
1022
scheduled and posted holidays.
1023
(c) Durable medical equipment and medical supply providers
1024
must obtain a $50,000 surety bond for each provider location, up
1025
to a maximum of five bonds statewide or an aggregate bond of
1026
$250,000 statewide as identified per federal employer
1027
identification number. Providers who qualify for a statewide or
1028
an aggregate bond must identify all of their locations in any
1029
enrollment application or bond renewal as a Medicaid durable
1030
medical equipment and medical supply provider. Each provider
1031
location's surety bond must be renewed annually and the provider
1032
must submit proof of renewal, even if the original bond is a
1033
continuous bond. A licensed orthotist or prosthetist that
1034
provides only orthotic or prosthetic devices as a Medicaid
1035
durable medical equipment provider is exempt from the provisions
1036
in this paragraph.
1037
(d) A level 2 background screening, as described in s.
1038
435.04, is required as a condition of employment for provider
1039
staff in direct contact with and providing direct services to
1040
recipients of durable medical equipment and medical supplies in
1041
their homes. This requirement includes, but is not limited to,
1042
repair and service technicians, fitters, and delivery staff.
1043
(e) The following providers are exempt from paragraphs (a)
1044
and (c):
1045
1. A durable medical equipment and medical supply provider
1046
owned and operated by a governmental entity;
1047
2. A durable medical equipment and medical supply provider
1048
that is operating within a pharmacy that is currently enrolled as
1049
a Medicaid pharmacy provider; and
1050
3. An active Medicaid-enrolled orthopedic physician's
1051
group, primarily owned by physicians, which is providing only
1052
orthotic and prosthetic devices.
1053
Section 13. The Agency for Health Care Administration shall
1054
review the process, procedures, and contractor's performance for
1055
the prior authorization of home health agency visits that are in
1056
excess of 60 visits over the lifetime of a Medicaid recipient.
1057
The agency shall determine whether modifications are necessary in
1058
order to reduce Medicaid fraud and abuse related to home health
1059
services for a Medicaid recipient which are not medically
1060
necessary. If modifications to the prior authorization function
1061
are necessary, the agency shall amend the contract to require
1062
contractor performance that reduces potential Medicaid fraud and
1063
abuse with respect to home health agency visits.
1064
Section 14. The Agency for Health Care Administration shall
1065
report to the Legislature by January 1, 2009, on the feasibility
1066
and costs of accessing the Medicare system to disallow Medicaid
1067
payment for home health services that are paid for under the
1068
Medicare prospective payment system for recipients who are dually
1069
eligible for Medicaid and Medicare.
1070
Section 15. The sum of $614,831 is appropriated to the
1071
Agency for Health Care Administration from the Health Care Trust
1072
Fund for the 2008-2009 fiscal year, and six full-time equivalent
1073
positions along with an associated salary rate of 331,602 are
1074
authorized for the purpose of implementing the provisions of this
1075
act.
1076
Section 16. The sum of $282,078 is appropriated to the
1077
Agency for Health Care Administration from the Medical Care Trust
1078
Fund for the 2008-2009 fiscal year, and four full-time equivalent
1079
positions along with an associated salary rate of 174,752 are
1080
authorized for the purpose of implementing the provisions of this
1081
act.
1082
Section 17. This act shall take effect July 1, 2008.
CODING: Words stricken are deletions; words underlined are additions.