Florida Senate - 2013 SENATOR AMENDMENT
Bill No. CS for CS for SB 966
Barcode 165050
LEGISLATIVE ACTION
Senate . House
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Senator Soto moved the following:
1 Senate Amendment (with title amendment)
2
3 Between lines 3877 and 3878
4 insert:
5 Section 87. Subsection (4) of section 20.41, Florida
6 Statutes, is amended to read:
7 20.41 Department of Elderly Affairs.—There is created a
8 Department of Elderly Affairs.
9 (4) The department shall administer the Office of State
10 Long-Term Care Ombudsman Council, created by s. 400.0063
11 400.0067, and the local long-term care ombudsman councils,
12 created by s. 400.0069 and shall, as required by s. 712 of the
13 federal Older Americans Act of 1965, ensure that both the state
14 office operates and local long-term care ombudsman councils
15 operate in compliance with the Older Americans Act.
16 Section 88. Subsections (11) through (19) of section
17 400.021, Florida Statutes, are renumbered as subsections (10)
18 through (18), respectively, and present subsections (10) and
19 (18) are amended, to read:
20 400.021 Definitions.—When used in this part, unless the
21 context otherwise requires, the term:
22 (10) “Local ombudsman council” means a local long-term care
23 ombudsman council established pursuant to s. 400.0069, located
24 within the Older Americans Act planning and service areas.
25 (17)(18) “State ombudsman program council” means the Office
26 of State Long-Term Care Ombudsman Council established pursuant
27 to s. 400.0063 400.0067.
28 Section 89. Paragraph (c) of subsection (1) and subsections
29 (2) and (3) of section 400.022, Florida Statutes, are amended to
30 read:
31 400.022 Residents’ rights.—
32 (1) All licensees of nursing home facilities shall adopt
33 and make public a statement of the rights and responsibilities
34 of the residents of such facilities and shall treat such
35 residents in accordance with the provisions of that statement.
36 The statement shall assure each resident the following:
37 (c) Any entity or individual that provides health, social,
38 legal, or other services to a resident has the right to have
39 reasonable access to the resident. The resident has the right to
40 deny or withdraw consent to access at any time by any entity or
41 individual. Notwithstanding the visiting policy of the facility,
42 the following individuals must be permitted immediate access to
43 the resident:
44 1. Any representative of the federal or state government,
45 including, but not limited to, representatives of the Department
46 of Children and Family Services, the Department of Health, the
47 Agency for Health Care Administration, the Office of the
48 Attorney General, and the Department of Elderly Affairs; any law
49 enforcement officer; representatives members of the state or
50 local ombudsman program council; and the resident’s individual
51 physician.
52 2. Subject to the resident’s right to deny or withdraw
53 consent, immediate family or other relatives of the resident.
54
55 The facility must allow representatives of the state Long-Term
56 Care ombudsman program Council to examine a resident’s clinical
57 records with the permission of the resident or the resident’s
58 legal representative and consistent with state law.
59 (2) The licensee for each nursing home shall orally inform
60 the resident of the resident’s rights and provide a copy of the
61 statement required by subsection (1) to each resident or the
62 resident’s legal representative at or before the resident’s
63 admission to a facility. The licensee shall provide a copy of
64 the resident’s rights to each staff member of the facility. Each
65 such licensee shall prepare a written plan and provide
66 appropriate staff training to implement the provisions of this
67 section. The written statement of rights must include a
68 statement that a resident may file a complaint with the agency
69 or state local ombudsman program council. The statement must be
70 in boldfaced type and shall include the name, address, and
71 telephone number and e-mail address of the state numbers of the
72 local ombudsman program council and the telephone number of the
73 central abuse hotline where complaints may be lodged.
74 (3) Any violation of the resident’s rights set forth in
75 this section shall constitute grounds for action by the agency
76 under the provisions of s. 400.102, s. 400.121, or part II of
77 chapter 408. In order to determine whether the licensee is
78 adequately protecting residents’ rights, the licensure
79 inspection of the facility shall include private informal
80 conversations with a sample of residents to discuss residents’
81 experiences within the facility with respect to rights specified
82 in this section and general compliance with standards, and
83 consultation with the state ombudsman program council in the
84 local planning and service area of the Department of Elderly
85 Affairs in which the nursing home is located.
86 Section 90. Subsections (8), (9), and (11) through (14) of
87 section 400.0255, Florida Statutes, are amended to read:
88 400.0255 Resident transfer or discharge; requirements and
89 procedures; hearings.—
90 (8) The notice required by subsection (7) must be in
91 writing and must contain all information required by state and
92 federal law, rules, or regulations applicable to Medicaid or
93 Medicare cases. The agency shall develop a standard document to
94 be used by all facilities licensed under this part for purposes
95 of notifying residents of a discharge or transfer. Such document
96 must include a means for a resident to request the state local
97 long-term care ombudsman program council to review the notice
98 and request information about or assistance with initiating a
99 fair hearing with the department’s Office of Appeals Hearings.
100 In addition to any other pertinent information included, the
101 form shall specify the reason allowed under federal or state law
102 that the resident is being discharged or transferred, with an
103 explanation to support this action. Further, the form shall
104 state the effective date of the discharge or transfer and the
105 location to which the resident is being discharged or
106 transferred. The form shall clearly describe the resident’s
107 appeal rights and the procedures for filing an appeal, including
108 the right to request the state local ombudsman program council
109 to review the notice of discharge or transfer. A copy of the
110 notice must be placed in the resident’s clinical record, and a
111 copy must be transmitted to the resident’s legal guardian or
112 representative and to the state local ombudsman program council
113 within 5 business days after signature by the resident or
114 resident designee.
115 (9) A resident may request that the state local ombudsman
116 program council review any notice of discharge or transfer given
117 to the resident. When requested by a resident to review a notice
118 of discharge or transfer, the state local ombudsman program
119 council shall do so within 7 days after receipt of the request.
120 The nursing home administrator, or the administrator’s designee,
121 must forward the request for review contained in the notice to
122 the state local ombudsman program council within 24 hours after
123 such request is submitted. Failure to forward the request within
124 24 hours after the request is submitted shall toll the running
125 of the 30-day advance notice period until the request has been
126 forwarded.
127 (11) Notwithstanding paragraph (10)(b), an emergency
128 discharge or transfer may be implemented as necessary pursuant
129 to state or federal law during the period of time after the
130 notice is given and before the time a hearing decision is
131 rendered. Notice of an emergency discharge or transfer to the
132 resident, the resident’s legal guardian or representative, and
133 the state local ombudsman program council if requested pursuant
134 to subsection (9) must be by telephone or in person. This notice
135 shall be given before the transfer, if possible, or as soon
136 thereafter as practicable. A representative of the state local
137 ombudsman program council conducting a review under this
138 subsection shall do so within 24 hours after receipt of the
139 request. The resident’s file must be documented to show who was
140 contacted, whether the contact was by telephone or in person,
141 and the date and time of the contact. If the notice is not given
142 in writing, written notice meeting the requirements of
143 subsection (8) must be given the next working day.
144 (12) After receipt of any notice required under this
145 section, the state local ombudsman program council may request a
146 private informal conversation with a resident to whom the notice
147 is directed, and, if known, a family member or the resident’s
148 legal guardian or designee, to ensure that the facility is
149 proceeding with the discharge or transfer in accordance with the
150 requirements of this section. If requested, the state local
151 ombudsman program council shall assist the resident with filing
152 an appeal of the proposed discharge or transfer.
153 (13) The following persons must be present at all hearings
154 authorized under this section:
155 (a) The resident, or the resident’s legal representative or
156 designee.
157 (b) The facility administrator, or the facility’s legal
158 representative or designee.
159
160 A representative of the state local long-term care ombudsman
161 program council may be present at all hearings authorized by
162 this section.
163 (14) In any hearing under this section, the following
164 information concerning the parties shall be confidential and
165 exempt from the provisions of s. 119.07(1):
166 (a) Names and addresses.
167 (b) Medical services provided.
168 (c) Social and economic conditions or circumstances.
169 (d) Evaluation of personal information.
170 (e) Medical data, including diagnosis and past history of
171 disease or disability.
172 (f) Any information received verifying income eligibility
173 and amount of medical assistance payments. Income information
174 received from the Social Security Administration or the Internal
175 Revenue Service must be safeguarded according to the
176 requirements of the agency that furnished the data.
177
178 The exemption created by this subsection does not prohibit
179 access to such information by the state ombudsman program a
180 local long-term care ombudsman council upon request, by a
181 reviewing court if such information is required to be part of
182 the record upon subsequent review, or as specified in s. 24(a),
183 Art. I of the State Constitution.
184 Section 91. Subsection (2) of section 400.1413, Florida
185 Statutes, is amended to read:
186 400.1413 Volunteers in nursing homes.—
187 (2) This section does not affect the activities of the
188 state or local long-term care ombudsman program councils
189 authorized under part I.
190 Section 92. Paragraph (d) of subsection (5) of section
191 400.162, Florida Statutes, is amended to read:
192 400.162 Property and personal affairs of residents.—
193 (5)
194 (d) If, at any time during the period for which a license
195 is issued, a licensee that has not purchased a surety bond or
196 entered into a self-insurance agreement, as provided in
197 paragraphs (b) and (c), is requested to provide safekeeping for
198 the personal funds of a resident, the licensee shall notify the
199 agency of the request and make application for a surety bond or
200 for participation in a self-insurance agreement within 7 days
201 after of the request, exclusive of weekends and holidays. Copies
202 of the application, along with written documentation of related
203 correspondence with an insurance agency or group, shall be
204 maintained by the licensee for review by the agency and the
205 state Nursing Home and Long-Term Care Facility ombudsman program
206 Council.
207 Section 93. Subsections (1) and (4) of section 400.19,
208 Florida Statutes, are amended to read:
209 400.19 Right of entry and inspection.—
210 (1) In accordance with part II of chapter 408, the agency
211 and any duly designated officer or employee thereof or a
212 representative member of the state Long-Term Care ombudsman
213 program Council or the local long-term care ombudsman council
214 shall have the right to enter upon and into the premises of any
215 facility licensed pursuant to this part, or any distinct nursing
216 home unit of a hospital licensed under chapter 395 or any
217 freestanding facility licensed under chapter 395 that provides
218 extended care or other long-term care services, at any
219 reasonable time in order to determine the state of compliance
220 with the provisions of this part, part II of chapter 408, and
221 applicable rules in force pursuant thereto. The agency shall,
222 within 60 days after receipt of a complaint made by a resident
223 or resident’s representative, complete its investigation and
224 provide to the complainant its findings and resolution.
225 (4) The agency shall conduct unannounced onsite facility
226 reviews following written verification of licensee noncompliance
227 in instances in which the state ombudsman program a long-term
228 care ombudsman council, pursuant to ss. 400.0071 and 400.0075,
229 has received a complaint and has documented deficiencies in
230 resident care or in the physical plant of the facility that
231 threaten the health, safety, or security of residents, or when
232 the agency documents through inspection that conditions in a
233 facility present a direct or indirect threat to the health,
234 safety, or security of residents. However, the agency shall
235 conduct unannounced onsite reviews every 3 months of each
236 facility while the facility has a conditional license.
237 Deficiencies related to physical plant do not require followup
238 reviews after the agency has determined that correction of the
239 deficiency has been accomplished and that the correction is of
240 the nature that continued compliance can be reasonably expected.
241 Section 94. Subsection (1) of section 400.191, Florida
242 Statutes, is amended to read:
243 400.191 Availability, distribution, and posting of reports
244 and records.—
245 (1) The agency shall provide information to the public
246 about all of the licensed nursing home facilities operating in
247 the state. The agency shall, within 60 days after a licensure
248 inspection visit or within 30 days after any interim visit to a
249 facility, send copies of the inspection reports to the state
250 local long-term care ombudsman program council, the agency’s
251 local office, and a public library or the county seat for the
252 county in which the facility is located. The agency may provide
253 electronic access to inspection reports as a substitute for
254 sending copies.
255 Section 95. Subsection (6) and paragraph (c) of subsection
256 (7) of section 400.23, Florida Statutes, are amended to read:
257 400.23 Rules; evaluation and deficiencies; licensure
258 status.—
259 (6) Before Prior to conducting a survey of the facility,
260 the survey team shall obtain a copy of the state local long-term
261 care ombudsman program council report on the facility. Problems
262 noted in the report shall be incorporated into and followed up
263 through the agency’s inspection process. This procedure does not
264 preclude the state local long-term care ombudsman program
265 council from requesting the agency to conduct a followup visit
266 to the facility.
267 (7) The agency shall, at least every 15 months, evaluate
268 all nursing home facilities and make a determination as to the
269 degree of compliance by each licensee with the established rules
270 adopted under this part as a basis for assigning a licensure
271 status to that facility. The agency shall base its evaluation on
272 the most recent inspection report, taking into consideration
273 findings from other official reports, surveys, interviews,
274 investigations, and inspections. In addition to license
275 categories authorized under part II of chapter 408, the agency
276 shall assign a licensure status of standard or conditional to
277 each nursing home.
278 (c) In evaluating the overall quality of care and services
279 and determining whether the facility will receive a conditional
280 or standard license, the agency shall consider the needs and
281 limitations of residents in the facility and the results of
282 interviews and surveys of a representative sampling of
283 residents, families of residents, representatives of the state
284 ombudsman program council members in the planning and service
285 area in which the facility is located, guardians of residents,
286 and staff of the nursing home facility.
287 Section 96. Paragraph (a) of subsection (3), paragraph (f)
288 of subsection (5), and subsection (6) of section 400.235,
289 Florida Statutes, are amended to read:
290 400.235 Nursing home quality and licensure status; Gold
291 Seal Program.—
292 (3)(a) The Gold Seal Program shall be developed and
293 implemented by the Governor’s Panel on Excellence in Long-Term
294 Care which shall operate under the authority of the Executive
295 Office of the Governor. The panel shall be composed of three
296 persons appointed by the Governor, to include a consumer
297 advocate for senior citizens and two persons with expertise in
298 the fields of quality management, service delivery excellence,
299 or public sector accountability; three persons appointed by the
300 Secretary of Elderly Affairs, to include an active member of a
301 nursing facility family and resident care council and a member
302 of the University Consortium on Aging; a representative of the
303 Office of State Long-Term Care Ombudsman; one person appointed
304 by the Florida Life Care Residents Association; one person
305 appointed by the State Surgeon General; two persons appointed by
306 the Secretary of Health Care Administration; one person
307 appointed by the Florida Association of Homes for the Aging; and
308 one person appointed by the Florida Health Care Association.
309 Vacancies on the panel shall be filled in the same manner as the
310 original appointments.
311 (5) Facilities must meet the following additional criteria
312 for recognition as a Gold Seal Program facility:
313 (f) Evidence an outstanding record regarding the number and
314 types of substantiated complaints reported to the Office of
315 State Long-Term Care Ombudsman Council within the 30 months
316 preceding application for the program.
317
318 A facility assigned a conditional licensure status may not
319 qualify for consideration for the Gold Seal Program until after
320 it has operated for 30 months with no class I or class II
321 deficiencies and has completed a regularly scheduled relicensure
322 survey.
323 (6) The agency, nursing facility industry organizations,
324 consumers, Office of State Long-Term Care Ombudsman Council, and
325 members of the community may recommend to the Governor
326 facilities that meet the established criteria for consideration
327 for and award of the Gold Seal. The panel shall review nominees
328 and make a recommendation to the Governor for final approval and
329 award. The decision of the Governor is final and is not subject
330 to appeal.
331 Section 97. Paragraph (a) of subsection (1) of section
332 415.1034, Florida Statutes, is amended to read:
333 415.1034 Mandatory reporting of abuse, neglect, or
334 exploitation of vulnerable adults; mandatory reports of death.—
335 (1) MANDATORY REPORTING.—
336 (a) Any person, including, but not limited to, any:
337 1. Physician, osteopathic physician, medical examiner,
338 chiropractic physician, nurse, paramedic, emergency medical
339 technician, or hospital personnel engaged in the admission,
340 examination, care, or treatment of vulnerable adults;
341 2. Health professional or mental health professional other
342 than one listed in subparagraph 1.;
343 3. Practitioner who relies solely on spiritual means for
344 healing;
345 4. Nursing home staff; assisted living facility staff;
346 adult day care center staff; adult family-care home staff;
347 social worker; or other professional adult care, residential, or
348 institutional staff;
349 5. State, county, or municipal criminal justice employee or
350 law enforcement officer;
351 6. An Employee of the Department of Business and
352 Professional Regulation conducting inspections of public lodging
353 establishments under s. 509.032;
354 7. Florida advocacy council member or representative of the
355 Office of State Long-Term Care Ombudsman council member; or
356 8. Bank, savings and loan, or credit union officer,
357 trustee, or employee,
358
359 who knows, or has reasonable cause to suspect, that a vulnerable
360 adult has been or is being abused, neglected, or exploited shall
361 immediately report such knowledge or suspicion to the central
362 abuse hotline.
363 Section 98. Subsection (1) of section 415.104, Florida
364 Statutes, is amended to read:
365 415.104 Protective investigations of cases of abuse,
366 neglect, or exploitation of vulnerable adults; transmittal of
367 records to state attorney.—
368 (1) The department shall, upon receipt of a report alleging
369 abuse, neglect, or exploitation of a vulnerable adult, begin
370 within 24 hours a protective investigation of the facts alleged
371 therein. If a caregiver refuses to allow the department to begin
372 a protective investigation or interferes with the conduct of
373 such an investigation, the appropriate law enforcement agency
374 shall be contacted for assistance. If, during the course of the
375 investigation, the department has reason to believe that the
376 abuse, neglect, or exploitation is perpetrated by a second
377 party, the appropriate law enforcement agency and state attorney
378 shall be orally notified. The department and the law enforcement
379 agency shall cooperate to allow the criminal investigation to
380 proceed concurrently with, and not be hindered by, the
381 protective investigation. The department shall make a
382 preliminary written report to the law enforcement agencies
383 within 5 working days after the oral report. The department
384 shall, within 24 hours after receipt of the report, notify the
385 appropriate Florida local advocacy council, or state long-term
386 care ombudsman program council, when appropriate, that an
387 alleged abuse, neglect, or exploitation perpetrated by a second
388 party has occurred. Notice to the Florida local advocacy council
389 or state long-term care ombudsman program council may be
390 accomplished orally or in writing and shall include the name and
391 location of the vulnerable adult alleged to have been abused,
392 neglected, or exploited and the nature of the report.
393 Section 99. Subsection (8) of section 415.1055, Florida
394 Statutes, is amended to read:
395 415.1055 Notification to administrative entities.—
396 (8) At the conclusion of a protective investigation at a
397 facility, the department shall notify either the Florida local
398 advocacy council or state long-term care ombudsman program
399 council of the results of the investigation. This notification
400 must be in writing.
401 Section 100. Subsection (2) of section 415.106, Florida
402 Statutes, is amended to read:
403 415.106 Cooperation by the department and criminal justice
404 and other agencies.—
405 (2) To ensure coordination, communication, and cooperation
406 with the investigation of abuse, neglect, or exploitation of
407 vulnerable adults, the department shall develop and maintain
408 interprogram agreements or operational procedures among
409 appropriate departmental programs and the Office of State Long
410 Term Care Ombudsman Council, the Florida Statewide Advocacy
411 Council, and other agencies that provide services to vulnerable
412 adults. These agreements or procedures must cover such subjects
413 as the appropriate roles and responsibilities of the department
414 in identifying and responding to reports of abuse, neglect, or
415 exploitation of vulnerable adults; the provision of services;
416 and related coordinated activities.
417 Section 101. Paragraph (g) of subsection (3) of section
418 415.107, Florida Statutes, is amended to read:
419 415.107 Confidentiality of reports and records.—
420 (3) Access to all records, excluding the name of the
421 reporter which shall be released only as provided in subsection
422 (6), shall be granted only to the following persons, officials,
423 and agencies:
424 (g) Any appropriate official of the Florida advocacy
425 council or state long-term care ombudsman program council
426 investigating a report of known or suspected abuse, neglect, or
427 exploitation of a vulnerable adult.
428 Section 102. Subsection (20) of section 429.02, Florida
429 Statutes, is amended to read:
430 429.02 Definitions.—When used in this part, the term:
431 (20) “Resident’s representative or designee” means a person
432 other than the owner, or an agent or employee of the facility,
433 designated in writing by the resident, if legally competent, to
434 receive notice of changes in the contract executed pursuant to
435 s. 429.24; to receive notice of and to participate in meetings
436 between the resident and the facility owner, administrator, or
437 staff concerning the rights of the resident; to assist the
438 resident in contacting the state ombudsman program council if
439 the resident has a complaint against the facility; or to bring
440 legal action on behalf of the resident pursuant to s. 429.29.
441 Section 103. Subsection (2) of section 429.35, Florida
442 Statutes, is amended to read:
443 429.35 Maintenance of records; reports.—
444 (2) Within 60 days after the date of the biennial
445 inspection visit required under s. 408.811 or within 30 days
446 after the date of any interim visit, the agency shall forward
447 the results of the inspection to the state local ombudsman
448 program council in whose planning and service area, as defined
449 in part II of chapter 400, the facility is located; to at least
450 one public library or, in the absence of a public library, the
451 county seat in the county in which the inspected assisted living
452 facility is located; and, when appropriate, to the district
453 Adult Services and Mental Health Program Offices.
454 Section 104. Subsection (2) of section 429.85, Florida
455 Statutes, is amended to read:
456 429.85 Residents’ bill of rights.—
457 (2) The provider shall ensure that residents and their
458 legal representatives are made aware of the rights, obligations,
459 and prohibitions set forth in this part. Residents must also be
460 given the statewide toll-free telephone number and e-mail
461 address of the state ombudsman program and the telephone number
462 of names, addresses, and telephone numbers of the local
463 ombudsman council and the central abuse hotline where they may
464 lodge complaints.
465 Section 105. Subsection (17) of section 744.444, Florida
466 Statutes, is amended to read:
467 744.444 Power of guardian without court approval.—Without
468 obtaining court approval, a plenary guardian of the property, or
469 a limited guardian of the property within the powers granted by
470 the order appointing the guardian or an approved annual or
471 amended guardianship report, may:
472 (17) Provide confidential information about a ward that is
473 related to an investigation arising under part I of chapter 400
474 to a representative of the local or state ombudsman program
475 council member conducting such an investigation. Any such
476 ombudsman has shall have a duty to maintain the confidentiality
477 of such information.
478
479 ================= T I T L E A M E N D M E N T ================
480 And the title is amended as follows:
481 Delete line 361
482 and insert:
483 development; amending ss. 20.41, 400.021, 400.022,
484 400.0255, 400.1413, 400.162, 400.19, 400.191, 400.23,
485 400.235, 415.1034, 415.104, 415.1055, 415.106,
486 415.107, 429.02, 429.35, 429.85, and 744.444, F.S.;
487 conforming provisions to changes made by the act;
488 providing an effective date.