HB 7183

A bill to be entitled
2An act relating to health and human services; repealing s.
3394.4595, F.S., relating to access to patients and their
4records by Florida statewide and local advocacy councils;
5repealing s. 402.164, F.S., relating to legislative intent
6and definitions applicable to advocacy councils; repealing
7s. 402.165, F.S., relating to the establishment of the
8Florida Statewide Advocacy Council; repealing s. 402.166,
9F.S., relating to the establishment of the Florida local
10advocacy councils; repealing s. 402.167, F.S., relating to
11the duties of state agencies that provide client services
12relating to the Florida Statewide Advocacy Council and the
13Florida local advocacy councils; amending s. 408.036,
14F.S.; eliminating an annual report submitted to the
15Legislature by the Agency for Health Care Administration;
16repealing s. 408.18, F.S., relating to the Health Care
17Community Antitrust Guidance Act; repealing s. 408.185,
18F.S., relating to confidentiality of information submitted
19for review of antitrust issues; amending ss. 39.001,
2039.0011, 39.202, 39.302, 394.459, 394.4597, 394.4598,
21394.4599, 394.4615, 400.0065, 400.141, 415.1034, 415.104,
22415.1055, 415.106, 415.107, 429.19, 429.28, and 429.34,
23F.S.; conforming references; providing an effective date.
25Be It Enacted by the Legislature of the State of Florida:
27     Section 1.  Sections 394.4595, 402.164, 402.165, 402.166,
28402.167, 408.18, and 408.185, Florida Statutes, are repealed.
29     Section 2.  Paragraph (a) of subsection (8) of section
3039.001, Florida Statutes, is amended to read:
31     39.001  Purposes and intent; personnel standards and
34     (a)  The office shall develop a state plan for the
35promotion of adoption, support of adoptive families, and
36prevention of abuse, abandonment, and neglect of children and
37shall submit the state plan to the Speaker of the House of
38Representatives, the President of the Senate, and the Governor
39no later than December 31, 2008. The Department of Children and
40Family Services, the Department of Corrections, the Department
41of Education, the Department of Health, the Department of
42Juvenile Justice, the Department of Law Enforcement, the Agency
43for Persons with Disabilities, and the Agency for Workforce
44Innovation shall participate and fully cooperate in the
45development of the state plan at both the state and local
46levels. Furthermore, appropriate local agencies and
47organizations shall be provided an opportunity to participate in
48the development of the state plan at the local level.
49Appropriate local groups and organizations shall include, but
50not be limited to, community mental health centers; guardian ad
51litem programs for children under the circuit court; the school
52boards of the local school districts; the Florida local advocacy
53councils; community-based care lead agencies; private or public
54organizations or programs with recognized expertise in working
55with child abuse prevention programs for children and families;
56private or public organizations or programs with recognized
57expertise in working with children who are sexually abused,
58physically abused, emotionally abused, abandoned, or neglected
59and with expertise in working with the families of such
60children; private or public programs or organizations with
61expertise in maternal and infant health care; multidisciplinary
62child protection teams; child day care centers; law enforcement
63agencies; and the circuit courts, when guardian ad litem
64programs are not available in the local area. The state plan to
65be provided to the Legislature and the Governor shall include,
66as a minimum, the information required of the various groups in
67paragraph (b).
68     Section 3.  Subsection (2) of section 39.0011, Florida
69Statutes, is amended to read:
70     39.0011  Direct-support organization.-
71     (2)  The number of members on the board of directors of the
72direct-support organization shall be determined by the Chief
73Child Advocate. Membership on the board of directors of the
74direct-support organization shall include, but not be limited
75to, a guardian ad litem; a member of a local advocacy council; a
76representative from a community-based care lead agency; a
77representative from a private or public organization or program
78with recognized expertise in working with child abuse prevention
79programs for children and families; a representative of a
80private or public organization or program with recognized
81expertise in working with children who are sexually abused,
82physically abused, emotionally abused, abandoned, or neglected
83and with expertise in working with the families of such
84children; an individual working at a state adoption agency; and
85the parent of a child adopted from within the child welfare
87     Section 4.  Paragraph (k) of subsection (2) of section
8839.202, Florida Statutes, is amended to read:
89     39.202  Confidentiality of reports and records in cases of
90child abuse or neglect.-
91     (2)  Except as provided in subsection (4), access to such
92records, excluding the name of the reporter which shall be
93released only as provided in subsection (5), shall be granted
94only to the following persons, officials, and agencies:
95     (k)  Any appropriate official of a Florida advocacy council
96investigating a report of known or suspected child abuse,
97abandonment, or neglect; The Auditor General or the Office of
98Program Policy Analysis and Government Accountability for the
99purpose of conducting audits or examinations pursuant to law; or
100the guardian ad litem for the child.
101     Section 5.  Subsections (5) through (7) of section 39.302,
102Florida Statutes, are renumbered as subsections (4) through (6),
103respectively, and present subsection (4) of that section is
104amended to read:
105     39.302  Protective investigations of institutional child
106abuse, abandonment, or neglect.-
107     (4)  The department shall notify the Florida local advocacy
108council in the appropriate district of the department as to
109every report of institutional child abuse, abandonment, or
110neglect in the district in which a client of the department is
111alleged or shown to have been abused, abandoned, or neglected,
112which notification shall be made within 48 hours after the
113department commences its investigation.
114     Section 6.  Paragraph (c) of subsection (5) and subsection
115(12) of section 394.459, Florida Statutes, are amended to read:
116     394.459  Rights of patients.-
118     (c)  Each facility must permit immediate access to any
119patient, subject to the patient's right to deny or withdraw
120consent at any time, by the patient's family members, guardian,
121guardian advocate, representative, Florida statewide or local
122advocacy council, or attorney, unless such access would be
123detrimental to the patient. If a patient's right to communicate
124or to receive visitors is restricted by the facility, written
125notice of such restriction and the reasons for the restriction
126shall be served on the patient, the patient's attorney, and the
127patient's guardian, guardian advocate, or representative; and
128such restriction shall be recorded on the patient's clinical
129record with the reasons therefor. The restriction of a patient's
130right to communicate or to receive visitors shall be reviewed at
131least every 7 days. The right to communicate or receive visitors
132shall not be restricted as a means of punishment. Nothing in
133this paragraph shall be construed to limit the provisions of
134paragraph (d).
136facility shall post a notice listing and describing, in the
137language and terminology that the persons to whom the notice is
138addressed can understand, the rights provided in this section.
139This notice shall include a statement that provisions of the
140federal Americans with Disabilities Act apply and the name and
141telephone number of a person to contact for further information.
142This notice shall be posted in a place readily accessible to
143patients and in a format easily seen by patients. This notice
144shall include the telephone number numbers of the Florida local
145advocacy council and Advocacy Center for Persons with
146Disabilities, Inc.
147     Section 7.  Paragraph (d) of subsection (2) of section
148394.4597, Florida Statutes, is amended to read:
149     394.4597  Persons to be notified; patient's
152     (d)  When the receiving or treatment facility selects a
153representative, first preference shall be given to a health care
154surrogate, if one has been previously selected by the patient.
155If the patient has not previously selected a health care
156surrogate, the selection, except for good cause documented in
157the patient's clinical record, shall be made from the following
158list in the order of listing:
159     1.  The patient's spouse.
160     2.  An adult child of the patient.
161     3.  A parent of the patient.
162     4.  The adult next of kin of the patient.
163     5.  An adult friend of the patient.
164     6.  The appropriate Florida local advocacy council as
165provided in s. 402.166.
166     Section 8.  Subsection (1) of section 394.4598, Florida
167Statutes, is amended to read:
168     394.4598  Guardian advocate.-
169     (1)  The administrator may petition the court for the
170appointment of a guardian advocate based upon the opinion of a
171psychiatrist that the patient is incompetent to consent to
172treatment. If the court finds that a patient is incompetent to
173consent to treatment and has not been adjudicated incapacitated
174and a guardian with the authority to consent to mental health
175treatment appointed, it shall appoint a guardian advocate. The
176patient has the right to have an attorney represent him or her
177at the hearing. If the person is indigent, the court shall
178appoint the office of the public defender to represent him or
179her at the hearing. The patient has the right to testify, cross-
180examine witnesses, and present witnesses. The proceeding shall
181be recorded either electronically or stenographically, and
182testimony shall be provided under oath. One of the professionals
183authorized to give an opinion in support of a petition for
184involuntary placement, as described in s. 394.4655 or s.
185394.467, must testify. A guardian advocate must meet the
186qualifications of a guardian contained in part IV of chapter
187744, except that a professional referred to in this part, an
188employee of the facility providing direct services to the
189patient under this part, a departmental employee, or a facility
190administrator, or member of the Florida local advocacy council
191shall not be appointed. A person who is appointed as a guardian
192advocate must agree to the appointment.
193     Section 9.  Paragraph (b) of subsection (2) of section
194394.4599, Florida Statutes, is amended to read:
195     394.4599  Notice.-
197     (b)  A receiving facility shall give prompt notice of the
198whereabouts of a patient who is being involuntarily held for
199examination, by telephone or in person within 24 hours after the
200patient's arrival at the facility, unless the patient requests
201that no notification be made. Contact attempts shall be
202documented in the patient's clinical record and shall begin as
203soon as reasonably possible after the patient's arrival. Notice
204that a patient is being admitted as an involuntary patient shall
205be given to the Florida local advocacy council no later than the
206next working day after the patient is admitted.
207     Section 10.  Subsection (5) of section 394.4615, Florida
208Statutes, is amended to read:
209     394.4615  Clinical records; confidentiality.-
210     (5)  Information from clinical records may be used by the
211Agency for Health Care Administration and, the department, and
212the Florida advocacy councils for the purpose of monitoring
213facility activity and complaints concerning facilities.
214     Section 11.  Paragraphs (h) and (i) of subsection (2) of
215section 400.0065, Florida Statutes, are redesignated as
216paragraphs (g) and (h), respectively, and present paragraph (g)
217of that subsection is amended to read:
218     400.0065  State Long-Term Care Ombudsman; duties and
220     (2)  The State Long-Term Care Ombudsman shall have the duty
221and authority to:
222     (g)  Enter into a cooperative agreement with the Statewide
223Advocacy Council for the purpose of coordinating and avoiding
224duplication of advocacy services provided to residents.
225     Section 12.  Paragraph (m) of subsection (1) of section
226400.141, Florida Statutes, is amended to read:
227     400.141  Administration and management of nursing home
229     (1)  Every licensed facility shall comply with all
230applicable standards and rules of the agency and shall:
231     (m)  Publicly display a poster provided by the agency
232containing the names, addresses, and telephone numbers for the
233state's abuse hotline, the State Long-Term Care Ombudsman, the
234Agency for Health Care Administration consumer hotline, the
235Advocacy Center for Persons with Disabilities, the Florida
236Statewide Advocacy Council, and the Medicaid Fraud Control Unit,
237with a clear description of the assistance to be expected from
239     Section 13.  Paragraph (m) of subsection (3) of section
240408.036, Florida Statutes, is amended to read:
241     408.036  Projects subject to review; exemptions.-
242     (3)  EXEMPTIONS.-Upon request, the following projects are
243subject to exemption from the provisions of subsection (1):
244     (m)1.  For the provision of adult open-heart services in a
245hospital located within the boundaries of a health service
246planning district, as defined in s. 408.032(5), which has
247experienced an annual net out-migration of at least 600 open-
248heart-surgery cases for 3 consecutive years according to the
249most recent data reported to the agency, and the district's
250population per licensed and operational open-heart programs
251exceeds the state average of population per licensed and
252operational open-heart programs by at least 25 percent. All
253hospitals within a health service planning district which meet
254the criteria reference in sub-subparagraphs 2.a.-h. shall be
255eligible for this exemption on July 1, 2004, and shall receive
256the exemption upon filing for it and subject to the following:
257     a.  A hospital that has received a notice of intent to
258grant a certificate of need or a final order of the agency
259granting a certificate of need for the establishment of an open-
260heart-surgery program is entitled to receive a letter of
261exemption for the establishment of an adult open-heart-surgery
262program upon filing a request for exemption and complying with
263the criteria enumerated in sub-subparagraphs 2.a.-h., and is
264entitled to immediately commence operation of the program.
265     b.  An otherwise eligible hospital that has not received a
266notice of intent to grant a certificate of need or a final order
267of the agency granting a certificate of need for the
268establishment of an open-heart-surgery program is entitled to
269immediately receive a letter of exemption for the establishment
270of an adult open-heart-surgery program upon filing a request for
271exemption and complying with the criteria enumerated in sub-
272subparagraphs 2.a.-h., but is not entitled to commence operation
273of its program until December 31, 2006.
274     2.  A hospital shall be exempt from the certificate-of-need
275review for the establishment of an open-heart-surgery program
276when the application for exemption submitted under this
277paragraph complies with the following criteria:
278     a.  The applicant must certify that it will meet and
279continuously maintain the minimum licensure requirements adopted
280by the agency governing adult open-heart programs, including the
281most current guidelines of the American College of Cardiology
282and American Heart Association Guidelines for Adult Open Heart
284     b.  The applicant must certify that it will maintain
285sufficient appropriate equipment and health personnel to ensure
286quality and safety.
287     c.  The applicant must certify that it will maintain
288appropriate times of operation and protocols to ensure
289availability and appropriate referrals in the event of
291     d.  The applicant can demonstrate that it has discharged at
292least 300 inpatients with a principal diagnosis of ischemic
293heart disease for the most recent 12-month period as reported to
294the agency.
295     e.  The applicant is a general acute care hospital that is
296in operation for 3 years or more.
297     f.  The applicant is performing more than 300 diagnostic
298cardiac catheterization procedures per year, combined inpatient
299and outpatient.
300     g.  The applicant's payor mix at a minimum reflects the
301community average for Medicaid, charity care, and self-pay
302patients or the applicant must certify that it will provide a
303minimum of 5 percent of Medicaid, charity care, and self-pay to
304open-heart-surgery patients.
305     h.  If the applicant fails to meet the established criteria
306for open-heart programs or fails to reach 300 surgeries per year
307by the end of its third year of operation, it must show cause
308why its exemption should not be revoked.
309     3.  By December 31, 2004, and annually thereafter, the
310agency shall submit a report to the Legislature providing
311information concerning the number of requests for exemption it
312has received under this paragraph during the calendar year and
313the number of exemptions it has granted or denied during the
314calendar year.
315     Section 14.  Paragraph (a) of subsection (1) of section
316415.1034, Florida Statutes, is amended to read:
317     415.1034  Mandatory reporting of abuse, neglect, or
318exploitation of vulnerable adults; mandatory reports of death.-
320     (a)  Any person, including, but not limited to, any:
321     1.  Physician, osteopathic physician, medical examiner,
322chiropractic physician, nurse, paramedic, emergency medical
323technician, or hospital personnel engaged in the admission,
324examination, care, or treatment of vulnerable adults;
325     2.  Health professional or mental health professional other
326than one listed in subparagraph 1.;
327     3.  Practitioner who relies solely on spiritual means for
329     4.  Nursing home staff; assisted living facility staff;
330adult day care center staff; adult family-care home staff;
331social worker; or other professional adult care, residential, or
332institutional staff;
333     5.  State, county, or municipal criminal justice employee
334or law enforcement officer;
335     6.  An employee of the Department of Business and
336Professional Regulation conducting inspections of public lodging
337establishments under s. 509.032; or
338     7.  Florida advocacy council member or long-term care
339ombudsman council member; or
340     7.8.  Bank, savings and loan, or credit union officer,
341trustee, or employee,
343who knows, or has reasonable cause to suspect, that a vulnerable
344adult has been or is being abused, neglected, or exploited shall
345immediately report such knowledge or suspicion to the central
346abuse hotline.
347     Section 15.  Subsection (1) of section 415.104, Florida
348Statutes, is amended to read:
349     415.104  Protective investigations of cases of abuse,
350neglect, or exploitation of vulnerable adults; transmittal of
351records to state attorney.-
352     (1)  The department shall, upon receipt of a report
353alleging abuse, neglect, or exploitation of a vulnerable adult,
354begin within 24 hours a protective investigation of the facts
355alleged therein. If a caregiver refuses to allow the department
356to begin a protective investigation or interferes with the
357conduct of such an investigation, the appropriate law
358enforcement agency shall be contacted for assistance. If, during
359the course of the investigation, the department has reason to
360believe that the abuse, neglect, or exploitation is perpetrated
361by a second party, the appropriate law enforcement agency and
362state attorney shall be orally notified. The department and the
363law enforcement agency shall cooperate to allow the criminal
364investigation to proceed concurrently with, and not be hindered
365by, the protective investigation. The department shall make a
366preliminary written report to the law enforcement agencies
367within 5 working days after the oral report. The department
368shall, within 24 hours after receipt of the report, notify the
369appropriate Florida local advocacy council, or long-term care
370ombudsman council, when appropriate, that an alleged abuse,
371neglect, or exploitation perpetrated by a second party has
372occurred. Notice to the Florida local advocacy council or long-
373term care ombudsman council may be accomplished orally or in
374writing and shall include the name and location of the
375vulnerable adult alleged to have been abused, neglected, or
376exploited and the nature of the report.
377     Section 16.  Subsection (8) of section 415.1055, Florida
378Statutes, is amended to read:
379     415.1055  Notification to administrative entities.-
380     (8)  At the conclusion of a protective investigation at a
381facility, the department shall notify either the Florida local
382advocacy council or long-term care ombudsman council of the
383results of the investigation. This notification must be in
385     Section 17.  Subsection (2) of section 415.106, Florida
386Statutes, is amended to read:
387     415.106  Cooperation by the department and criminal justice
388and other agencies.-
389     (2)  To ensure coordination, communication, and cooperation
390with the investigation of abuse, neglect, or exploitation of
391vulnerable adults, the department shall develop and maintain
392interprogram agreements or operational procedures among
393appropriate departmental programs and the State Long-Term Care
394Ombudsman Council, the Florida Statewide Advocacy Council, and
395other agencies that provide services to vulnerable adults. These
396agreements or procedures must cover such subjects as the
397appropriate roles and responsibilities of the department in
398identifying and responding to reports of abuse, neglect, or
399exploitation of vulnerable adults; the provision of services;
400and related coordinated activities.
401     Section 18.  Paragraph (g) of subsection (3) of section
402415.107, Florida Statutes, is amended to read:
403     415.107  Confidentiality of reports and records.-
404     (3)  Access to all records, excluding the name of the
405reporter which shall be released only as provided in subsection
406(6), shall be granted only to the following persons, officials,
407and agencies:
408     (g)  Any appropriate official of the Florida advocacy
409council or long-term care ombudsman council investigating a
410report of known or suspected abuse, neglect, or exploitation of
411a vulnerable adult.
412     Section 19.  Subsection (9) of section 429.19, Florida
413Statutes, is amended to read:
414     429.19  Violations; imposition of administrative fines;
416     (9)  The agency shall develop and disseminate an annual
417list of all facilities sanctioned or fined for violations of
418state standards, the number and class of violations involved,
419the penalties imposed, and the current status of cases. The list
420shall be disseminated, at no charge, to the Department of
421Elderly Affairs, the Department of Health, the Department of
422Children and Family Services, the Agency for Persons with
423Disabilities, the area agencies on aging, the Florida Statewide
424Advocacy Council, and the state and local ombudsman councils.
425The Department of Children and Family Services shall disseminate
426the list to service providers under contract to the department
427who are responsible for referring persons to a facility for
428residency. The agency may charge a fee commensurate with the
429cost of printing and postage to other interested parties
430requesting a copy of this list. This information may be provided
431electronically or through the agency's Internet site.
432     Section 20.  Subsection (2) of section 429.28, Florida
433Statutes, is amended to read:
434     429.28  Resident bill of rights.-
435     (2)  The administrator of a facility shall ensure that a
436written notice of the rights, obligations, and prohibitions set
437forth in this part is posted in a prominent place in each
438facility and read or explained to residents who cannot read.
439This notice shall include the name, address, and telephone
440numbers of the local ombudsman council and central abuse hotline
441and, when applicable, the Advocacy Center for Persons with
442Disabilities, Inc., and the Florida local advocacy council,
443where complaints may be lodged. The facility must ensure a
444resident's access to a telephone to call the local ombudsman
445council, central abuse hotline, and Advocacy Center for Persons
446with Disabilities, Inc., and the Florida local advocacy council.
447     Section 21.  Section 429.34, Florida Statutes, is amended
448to read:
449     429.34  Right of entry and inspection.-In addition to the
450requirements of s. 408.811, any duly designated officer or
451employee of the department, the Department of Children and
452Family Services, the Medicaid Fraud Control Unit of the Office
453of the Attorney General, the state or local fire marshal, or a
454member of the state or local long-term care ombudsman council
455shall have the right to enter unannounced upon and into the
456premises of any facility licensed pursuant to this part in order
457to determine the state of compliance with the provisions of this
458part, part II of chapter 408, and applicable rules. Data
459collected by the state or local long-term care ombudsman
460councils or the state or local advocacy councils may be used by
461the agency in investigations involving violations of regulatory
463     Section 22.  This act shall take effect July 1, 2011.

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