HB 7183

1	A bill to be entitled
2	An act relating to health and human services; repealing s.
3	394.4595, F.S., relating to access to patients and their
4	records by Florida statewide and local advocacy councils;
5	repealing s. 402.164, F.S., relating to legislative intent
6	and definitions applicable to advocacy councils; repealing
7	s. 402.165, F.S., relating to the establishment of the
8	Florida Statewide Advocacy Council; repealing s. 402.166,
9	F.S., relating to the establishment of the Florida local
10	advocacy councils; repealing s. 402.167, F.S., relating to
11	the duties of state agencies that provide client services
12	relating to the Florida Statewide Advocacy Council and the
13	Florida local advocacy councils; amending s. 408.036,
14	F.S.; eliminating an annual report submitted to the
15	Legislature by the Agency for Health Care Administration;
16	repealing s. 408.18, F.S., relating to the Health Care
17	Community Antitrust Guidance Act; repealing s. 408.185,
18	F.S., relating to confidentiality of information submitted
19	for review of antitrust issues; amending ss. 39.001,
20	39.0011, 39.202, 39.302, 394.459, 394.4597, 394.4598,
21	394.4599, 394.4615, 400.0065, 400.141, 415.1034, 415.104,
22	415.1055, 415.106, 415.107, 429.19, 429.28, and 429.34,
23	F.S.; conforming references; providing an effective date.
24
25	Be It Enacted by the Legislature of the State of Florida:
26
27	Section 1.  Sections 394.4595, 402.164, 402.165, 402.166,
28	402.167, 408.18, and 408.185, Florida Statutes, are repealed.
29	Section 2.  Paragraph (a) of subsection (8) of section
30	39.001, Florida Statutes, is amended to read:
31	39.001  Purposes and intent; personnel standards and
32	screening.-
33	(8)  PLAN FOR COMPREHENSIVE APPROACH.-
34	(a)  The office shall develop a state plan for the
35	promotion of adoption, support of adoptive families, and
36	prevention of abuse, abandonment, and neglect of children and
37	shall submit the state plan to the Speaker of the House of
38	Representatives, the President of the Senate, and the Governor
39	no later than December 31, 2008. The Department of Children and
40	Family Services, the Department of Corrections, the Department
41	of Education, the Department of Health, the Department of
42	Juvenile Justice, the Department of Law Enforcement, the Agency
43	for Persons with Disabilities, and the Agency for Workforce
44	Innovation shall participate and fully cooperate in the
45	development of the state plan at both the state and local
46	levels. Furthermore, appropriate local agencies and
47	organizations shall be provided an opportunity to participate in
48	the development of the state plan at the local level.
49	Appropriate local groups and organizations shall include, but
50	not be limited to, community mental health centers; guardian ad
51	litem programs for children under the circuit court; the school
52	boards of the local school districts; the Florida local advocacy
53	councils; community-based care lead agencies; private or public
54	organizations or programs with recognized expertise in working
55	with child abuse prevention programs for children and families;
56	private or public organizations or programs with recognized
57	expertise in working with children who are sexually abused,
58	physically abused, emotionally abused, abandoned, or neglected
59	and with expertise in working with the families of such
60	children; private or public programs or organizations with
61	expertise in maternal and infant health care; multidisciplinary
62	child protection teams; child day care centers; law enforcement
63	agencies; and the circuit courts, when guardian ad litem
64	programs are not available in the local area. The state plan to
65	be provided to the Legislature and the Governor shall include,
66	as a minimum, the information required of the various groups in
67	paragraph (b).
68	Section 3.  Subsection (2) of section 39.0011, Florida
69	Statutes, is amended to read:
70	39.0011  Direct-support organization.-
71	(2)  The number of members on the board of directors of the
72	direct-support organization shall be determined by the Chief
73	Child Advocate. Membership on the board of directors of the
74	direct-support organization shall include, but not be limited
75	to, a guardian ad litem; a member of a local advocacy council; a
76	representative from a community-based care lead agency; a
77	representative from a private or public organization or program
78	with recognized expertise in working with child abuse prevention
79	programs for children and families; a representative of a
80	private or public organization or program with recognized
81	expertise in working with children who are sexually abused,
82	physically abused, emotionally abused, abandoned, or neglected
83	and with expertise in working with the families of such
84	children; an individual working at a state adoption agency; and
85	the parent of a child adopted from within the child welfare
86	system.
87	Section 4.  Paragraph (k) of subsection (2) of section
88	39.202, Florida Statutes, is amended to read:
89	39.202  Confidentiality of reports and records in cases of
90	child abuse or neglect.-
91	(2)  Except as provided in subsection (4), access to such
92	records, excluding the name of the reporter which shall be
93	released only as provided in subsection (5), shall be granted
94	only to the following persons, officials, and agencies:
95	(k)  Any appropriate official of a Florida advocacy council
96	investigating a report of known or suspected child abuse,
97	abandonment, or neglect; The Auditor General or the Office of
98	Program Policy Analysis and Government Accountability for the
99	purpose of conducting audits or examinations pursuant to law; or
100	the guardian ad litem for the child.
101	Section 5.  Subsections (5) through (7) of section 39.302,
102	Florida Statutes, are renumbered as subsections (4) through (6),
103	respectively, and present subsection (4) of that section is
104	amended to read:
105	39.302  Protective investigations of institutional child
106	abuse, abandonment, or neglect.-
107	(4)  The department shall notify the Florida local advocacy
108	council in the appropriate district of the department as to
109	every report of institutional child abuse, abandonment, or
110	neglect in the district in which a client of the department is
111	alleged or shown to have been abused, abandoned, or neglected,
112	which notification shall be made within 48 hours after the
113	department 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.-
117	(5)  COMMUNICATION, ABUSE REPORTING, AND VISITS.-
118	(c)  Each facility must permit immediate access to any
119	patient, subject to the patient's right to deny or withdraw
120	consent at any time, by the patient's family members, guardian,
121	guardian advocate, representative, Florida statewide or local
122	advocacy council, or attorney, unless such access would be
123	detrimental to the patient. If a patient's right to communicate
124	or to receive visitors is restricted by the facility, written
125	notice of such restriction and the reasons for the restriction
126	shall be served on the patient, the patient's attorney, and the
127	patient's guardian, guardian advocate, or representative; and
128	such restriction shall be recorded on the patient's clinical
129	record with the reasons therefor. The restriction of a patient's
130	right to communicate or to receive visitors shall be reviewed at
131	least every 7 days. The right to communicate or receive visitors
132	shall not be restricted as a means of punishment. Nothing in
133	this paragraph shall be construed to limit the provisions of
134	paragraph (d).
135	(12)  POSTING OF NOTICE OF RIGHTS OF PATIENTS.-Each
136	facility shall post a notice listing and describing, in the
137	language and terminology that the persons to whom the notice is
138	addressed can understand, the rights provided in this section.
139	This notice shall include a statement that provisions of the
140	federal Americans with Disabilities Act apply and the name and
141	telephone number of a person to contact for further information.
142	This notice shall be posted in a place readily accessible to
143	patients and in a format easily seen by patients. This notice
144	shall include the telephone number numbers of the Florida local
145	advocacy council and Advocacy Center for Persons with
146	Disabilities, Inc.
147	Section 7.  Paragraph (d) of subsection (2) of section
148	394.4597, Florida Statutes, is amended to read:
149	394.4597  Persons to be notified; patient's
150	representative.-
151	(2)  INVOLUNTARY PATIENTS.-
152	(d)  When the receiving or treatment facility selects a
153	representative, first preference shall be given to a health care
154	surrogate, if one has been previously selected by the patient.
155	If the patient has not previously selected a health care
156	surrogate, the selection, except for good cause documented in
157	the patient's clinical record, shall be made from the following
158	list 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
165	provided in s. 402.166.
166	Section 8.  Subsection (1) of section 394.4598, Florida
167	Statutes, is amended to read:
168	394.4598  Guardian advocate.-
169	(1)  The administrator may petition the court for the
170	appointment of a guardian advocate based upon the opinion of a
171	psychiatrist that the patient is incompetent to consent to
172	treatment. If the court finds that a patient is incompetent to
173	consent to treatment and has not been adjudicated incapacitated
174	and a guardian with the authority to consent to mental health
175	treatment appointed, it shall appoint a guardian advocate. The
176	patient has the right to have an attorney represent him or her
177	at the hearing. If the person is indigent, the court shall
178	appoint the office of the public defender to represent him or
179	her at the hearing. The patient has the right to testify, cross-
180	examine witnesses, and present witnesses. The proceeding shall
181	be recorded either electronically or stenographically, and
182	testimony shall be provided under oath. One of the professionals
183	authorized to give an opinion in support of a petition for
184	involuntary placement, as described in s. 394.4655 or s.
185	394.467, must testify. A guardian advocate must meet the
186	qualifications of a guardian contained in part IV of chapter
187	744, except that a professional referred to in this part, an
188	employee of the facility providing direct services to the
189	patient under this part, a departmental employee, or a facility
190	administrator, or member of the Florida local advocacy council
191	shall not be appointed. A person who is appointed as a guardian
192	advocate must agree to the appointment.
193	Section 9.  Paragraph (b) of subsection (2) of section
194	394.4599, Florida Statutes, is amended to read:
195	394.4599  Notice.-
196	(2)  INVOLUNTARY PATIENTS.-
197	(b)  A receiving facility shall give prompt notice of the
198	whereabouts of a patient who is being involuntarily held for
199	examination, by telephone or in person within 24 hours after the
200	patient's arrival at the facility, unless the patient requests
201	that no notification be made. Contact attempts shall be
202	documented in the patient's clinical record and shall begin as
203	soon as reasonably possible after the patient's arrival. Notice
204	that a patient is being admitted as an involuntary patient shall
205	be given to the Florida local advocacy council no later than the
206	next working day after the patient is admitted.
207	Section 10.  Subsection (5) of section 394.4615, Florida
208	Statutes, is amended to read:
209	394.4615  Clinical records; confidentiality.-
210	(5)  Information from clinical records may be used by the
211	Agency for Health Care Administration and, the department, and
212	the Florida advocacy councils for the purpose of monitoring
213	facility activity and complaints concerning facilities.
214	Section 11.  Paragraphs (h) and (i) of subsection (2) of
215	section 400.0065, Florida Statutes, are redesignated as
216	paragraphs (g) and (h), respectively, and present paragraph (g)
217	of that subsection is amended to read:
218	400.0065  State Long-Term Care Ombudsman; duties and
219	responsibilities.-
220	(2)  The State Long-Term Care Ombudsman shall have the duty
221	and authority to:
222	(g)  Enter into a cooperative agreement with the Statewide
223	Advocacy Council for the purpose of coordinating and avoiding
224	duplication of advocacy services provided to residents.
225	Section 12.  Paragraph (m) of subsection (1) of section
226	400.141, Florida Statutes, is amended to read:
227	400.141  Administration and management of nursing home
228	facilities.-
229	(1)  Every licensed facility shall comply with all
230	applicable standards and rules of the agency and shall:
231	(m)  Publicly display a poster provided by the agency
232	containing the names, addresses, and telephone numbers for the
233	state's abuse hotline, the State Long-Term Care Ombudsman, the
234	Agency for Health Care Administration consumer hotline, the
235	Advocacy Center for Persons with Disabilities, the Florida
236	Statewide Advocacy Council, and the Medicaid Fraud Control Unit,
237	with a clear description of the assistance to be expected from
238	each.
239	Section 13.  Paragraph (m) of subsection (3) of section
240	408.036, Florida Statutes, is amended to read:
241	408.036  Projects subject to review; exemptions.-
242	(3)  EXEMPTIONS.-Upon request, the following projects are
243	subject to exemption from the provisions of subsection (1):
244	(m)1.  For the provision of adult open-heart services in a
245	hospital located within the boundaries of a health service
246	planning district, as defined in s. 408.032(5), which has
247	experienced an annual net out-migration of at least 600 open-
248	heart-surgery cases for 3 consecutive years according to the
249	most recent data reported to the agency, and the district's
250	population per licensed and operational open-heart programs
251	exceeds the state average of population per licensed and
252	operational open-heart programs by at least 25 percent. All
253	hospitals within a health service planning district which meet
254	the criteria reference in sub-subparagraphs 2.a.-h. shall be
255	eligible for this exemption on July 1, 2004, and shall receive
256	the exemption upon filing for it and subject to the following:
257	a.  A hospital that has received a notice of intent to
258	grant a certificate of need or a final order of the agency
259	granting a certificate of need for the establishment of an open-
260	heart-surgery program is entitled to receive a letter of
261	exemption for the establishment of an adult open-heart-surgery
262	program upon filing a request for exemption and complying with
263	the criteria enumerated in sub-subparagraphs 2.a.-h., and is
264	entitled to immediately commence operation of the program.
265	b.  An otherwise eligible hospital that has not received a
266	notice of intent to grant a certificate of need or a final order
267	of the agency granting a certificate of need for the
268	establishment of an open-heart-surgery program is entitled to
269	immediately receive a letter of exemption for the establishment
270	of an adult open-heart-surgery program upon filing a request for
271	exemption and complying with the criteria enumerated in sub-
272	subparagraphs 2.a.-h., but is not entitled to commence operation
273	of its program until December 31, 2006.
274	2.  A hospital shall be exempt from the certificate-of-need
275	review for the establishment of an open-heart-surgery program
276	when the application for exemption submitted under this
277	paragraph complies with the following criteria:
278	a.  The applicant must certify that it will meet and
279	continuously maintain the minimum licensure requirements adopted
280	by the agency governing adult open-heart programs, including the
281	most current guidelines of the American College of Cardiology
282	and American Heart Association Guidelines for Adult Open Heart
283	Programs.
284	b.  The applicant must certify that it will maintain
285	sufficient appropriate equipment and health personnel to ensure
286	quality and safety.
287	c.  The applicant must certify that it will maintain
288	appropriate times of operation and protocols to ensure
289	availability and appropriate referrals in the event of
290	emergencies.
291	d.  The applicant can demonstrate that it has discharged at
292	least 300 inpatients with a principal diagnosis of ischemic
293	heart disease for the most recent 12-month period as reported to
294	the agency.
295	e.  The applicant is a general acute care hospital that is
296	in operation for 3 years or more.
297	f.  The applicant is performing more than 300 diagnostic
298	cardiac catheterization procedures per year, combined inpatient
299	and outpatient.
300	g.  The applicant's payor mix at a minimum reflects the
301	community average for Medicaid, charity care, and self-pay
302	patients or the applicant must certify that it will provide a
303	minimum of 5 percent of Medicaid, charity care, and self-pay to
304	open-heart-surgery patients.
305	h.  If the applicant fails to meet the established criteria
306	for open-heart programs or fails to reach 300 surgeries per year
307	by the end of its third year of operation, it must show cause
308	why its exemption should not be revoked.
309	3.  By December 31, 2004, and annually thereafter, the
310	agency shall submit a report to the Legislature providing
311	information concerning the number of requests for exemption it
312	has received under this paragraph during the calendar year and
313	the number of exemptions it has granted or denied during the
314	calendar year.
315	Section 14.  Paragraph (a) of subsection (1) of section
316	415.1034, Florida Statutes, is amended to read:
317	415.1034  Mandatory reporting of abuse, neglect, or
318	exploitation of vulnerable adults; mandatory reports of death.-
319	(1)  MANDATORY REPORTING.-
320	(a)  Any person, including, but not limited to, any:
321	1.  Physician, osteopathic physician, medical examiner,
322	chiropractic physician, nurse, paramedic, emergency medical
323	technician, or hospital personnel engaged in the admission,
324	examination, care, or treatment of vulnerable adults;
325	2.  Health professional or mental health professional other
326	than one listed in subparagraph 1.;
327	3.  Practitioner who relies solely on spiritual means for
328	healing;
329	4.  Nursing home staff; assisted living facility staff;
330	adult day care center staff; adult family-care home staff;
331	social worker; or other professional adult care, residential, or
332	institutional staff;
333	5.  State, county, or municipal criminal justice employee
334	or law enforcement officer;
335	6.  An employee of the Department of Business and
336	Professional Regulation conducting inspections of public lodging
337	establishments under s. 509.032; or
338	7.  Florida advocacy council member or long-term care
339	ombudsman council member; or
340	7.8.  Bank, savings and loan, or credit union officer,
341	trustee, or employee,
342
343	who knows, or has reasonable cause to suspect, that a vulnerable
344	adult has been or is being abused, neglected, or exploited shall
345	immediately report such knowledge or suspicion to the central
346	abuse hotline.
347	Section 15.  Subsection (1) of section 415.104, Florida
348	Statutes, is amended to read:
349	415.104  Protective investigations of cases of abuse,
350	neglect, or exploitation of vulnerable adults; transmittal of
351	records to state attorney.-
352	(1)  The department shall, upon receipt of a report
353	alleging abuse, neglect, or exploitation of a vulnerable adult,
354	begin within 24 hours a protective investigation of the facts
355	alleged therein. If a caregiver refuses to allow the department
356	to begin a protective investigation or interferes with the
357	conduct of such an investigation, the appropriate law
358	enforcement agency shall be contacted for assistance. If, during
359	the course of the investigation, the department has reason to
360	believe that the abuse, neglect, or exploitation is perpetrated
361	by a second party, the appropriate law enforcement agency and
362	state attorney shall be orally notified. The department and the
363	law enforcement agency shall cooperate to allow the criminal
364	investigation to proceed concurrently with, and not be hindered
365	by, the protective investigation. The department shall make a
366	preliminary written report to the law enforcement agencies
367	within 5 working days after the oral report. The department
368	shall, within 24 hours after receipt of the report, notify the
369	appropriate Florida local advocacy council, or long-term care
370	ombudsman council, when appropriate, that an alleged abuse,
371	neglect, or exploitation perpetrated by a second party has
372	occurred. Notice to the Florida local advocacy council or long-
373	term care ombudsman council may be accomplished orally or in
374	writing and shall include the name and location of the
375	vulnerable adult alleged to have been abused, neglected, or
376	exploited and the nature of the report.
377	Section 16.  Subsection (8) of section 415.1055, Florida
378	Statutes, is amended to read:
379	415.1055  Notification to administrative entities.-
380	(8)  At the conclusion of a protective investigation at a
381	facility, the department shall notify either the Florida local
382	advocacy council or long-term care ombudsman council of the
383	results of the investigation. This notification must be in
384	writing.
385	Section 17.  Subsection (2) of section 415.106, Florida
386	Statutes, is amended to read:
387	415.106  Cooperation by the department and criminal justice
388	and other agencies.-
389	(2)  To ensure coordination, communication, and cooperation
390	with the investigation of abuse, neglect, or exploitation of
391	vulnerable adults, the department shall develop and maintain
392	interprogram agreements or operational procedures among
393	appropriate departmental programs and the State Long-Term Care
394	Ombudsman Council, the Florida Statewide Advocacy Council, and
395	other agencies that provide services to vulnerable adults. These
396	agreements or procedures must cover such subjects as the
397	appropriate roles and responsibilities of the department in
398	identifying and responding to reports of abuse, neglect, or
399	exploitation of vulnerable adults; the provision of services;
400	and related coordinated activities.
401	Section 18.  Paragraph (g) of subsection (3) of section
402	415.107, 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
405	reporter which shall be released only as provided in subsection
406	(6), shall be granted only to the following persons, officials,
407	and agencies:
408	(g)  Any appropriate official of the Florida advocacy
409	council or long-term care ombudsman council investigating a
410	report of known or suspected abuse, neglect, or exploitation of
411	a vulnerable adult.
412	Section 19.  Subsection (9) of section 429.19, Florida
413	Statutes, is amended to read:
414	429.19  Violations; imposition of administrative fines;
415	grounds.-
416	(9)  The agency shall develop and disseminate an annual
417	list of all facilities sanctioned or fined for violations of
418	state standards, the number and class of violations involved,
419	the penalties imposed, and the current status of cases. The list
420	shall be disseminated, at no charge, to the Department of
421	Elderly Affairs, the Department of Health, the Department of
422	Children and Family Services, the Agency for Persons with
423	Disabilities, the area agencies on aging, the Florida Statewide
424	Advocacy Council, and the state and local ombudsman councils.
425	The Department of Children and Family Services shall disseminate
426	the list to service providers under contract to the department
427	who are responsible for referring persons to a facility for
428	residency. The agency may charge a fee commensurate with the
429	cost of printing and postage to other interested parties
430	requesting a copy of this list. This information may be provided
431	electronically or through the agency's Internet site.
432	Section 20.  Subsection (2) of section 429.28, Florida
433	Statutes, is amended to read:
434	429.28  Resident bill of rights.-
435	(2)  The administrator of a facility shall ensure that a
436	written notice of the rights, obligations, and prohibitions set
437	forth in this part is posted in a prominent place in each
438	facility and read or explained to residents who cannot read.
439	This notice shall include the name, address, and telephone
440	numbers of the local ombudsman council and central abuse hotline
441	and, when applicable, the Advocacy Center for Persons with
442	Disabilities, Inc., and the Florida local advocacy council,
443	where complaints may be lodged. The facility must ensure a
444	resident's access to a telephone to call the local ombudsman
445	council, central abuse hotline, and Advocacy Center for Persons
446	with Disabilities, Inc., and the Florida local advocacy council.
447	Section 21.  Section 429.34, Florida Statutes, is amended
448	to read:
449	429.34  Right of entry and inspection.-In addition to the
450	requirements of s. 408.811, any duly designated officer or
451	employee of the department, the Department of Children and
452	Family Services, the Medicaid Fraud Control Unit of the Office
453	of the Attorney General, the state or local fire marshal, or a
454	member of the state or local long-term care ombudsman council
455	shall have the right to enter unannounced upon and into the
456	premises of any facility licensed pursuant to this part in order
457	to determine the state of compliance with the provisions of this
458	part, part II of chapter 408, and applicable rules. Data
459	collected by the state or local long-term care ombudsman
460	councils or the state or local advocacy councils may be used by
461	the agency in investigations involving violations of regulatory
462	standards.
463	Section 22.  This act shall take effect July 1, 2011.

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