Florida Senate - 2022                                     SB 804
       By Senator Albritton
       26-00753A-22                                           2022804__
    1                        A bill to be entitled                      
    2         An act relating to modernization of nursing home
    3         facility staffing; amending s. 400.23, F.S.; defining
    4         terms; specifying functions that do not constitute
    5         direct care staffing hours for purposes of required
    6         nursing home staffing ratios; revising nursing home
    7         staffing requirements; requiring nursing home
    8         facilities to maintain and report staffing information
    9         consistent with federal law; amending s. 400.141,
   10         F.S.; conforming cross-references and provisions to
   11         changes made by the act; providing an effective date.
   13  Be It Enacted by the Legislature of the State of Florida:
   15         Section 1. Subsection (3) of section 400.23, Florida
   16  Statutes, is amended to read:
   17         400.23 Rules; evaluation and deficiencies; licensure
   18  status.—
   19         (3)(a)1. As used in this subsection, the term:
   20         a.“Average monthly hours of direct care per resident per
   21  day” means the total number of direct care service hours
   22  provided by direct care staff in a month at the facility divided
   23  by the sum of each daily resident census for that month.
   24         b.“Direct care staff” means individuals who, through
   25  interpersonal contact with residents or resident care
   26  management, provide care and services to allow residents to
   27  attain or maintain the highest practicable physical, mental, and
   28  psychosocial well-being. The term includes, but is not limited
   29  to, disciplines and professions that must be reported in
   30  accordance with 42 C.F.R. s. 483.70(q) and all of the following:
   31         (I)Licensed nurses.
   32         (II)Certified nursing assistants.
   33         (III)Physical therapy staff.
   34         (IV)Occupational therapy staff.
   35         (V)Speech therapy staff.
   36         (VI)Respiratory therapy staff.
   37         (VII)Activities staff.
   38         (VIII)Social services staff.
   39         (IX)Mental health service workers.
   41  The term does not include individuals whose primary duty is
   42  maintaining the physical environment of the facility, including,
   43  but not limited to, food preparation, laundry, and housekeeping.
   44         c.“Non-nursing direct care staff” means direct care staff
   45  who are not licensed to practice nursing under part I of chapter
   46  464.
   47         2.For purposes of this subsection, direct care staffing
   48  hours do not include time spent on nursing administration, staff
   49  development, staffing coordination, and the administrative
   50  portion of the minimum data set and care plan coordination for
   51  Medicaid.
   52         (b)1. The agency shall adopt rules providing minimum
   53  staffing requirements for nursing home facilities. These
   54  requirements must include, for each facility:
   55         a. A minimum monthly weekly average of certified nursing
   56  assistant and licensed nursing staffing combined of 3.6 hours of
   57  direct care per resident per day, as determined by the facility
   58  assessment staffing needs in accordance with 42 C.F.R. s.
   59  483.70(e). As used in this sub-subparagraph, a week is defined
   60  as Sunday through Saturday.
   61         b. A minimum certified nursing assistant staffing of 2.5
   62  hours of direct care by non-nursing direct care staff per
   63  resident per day. A facility may not staff below a ratio of one
   64  certified nursing assistant per 20 residents.
   65         c. A minimum licensed nursing staffing of 1.0 hour of
   66  direct care by licensed nurses per resident per day. A facility
   67  may not staff below a ratio of one licensed nurse per 40
   68  residents.
   69         2. Nursing assistants employed under s. 400.211(2) may be
   70  included in computing the hours of non-nursing direct care
   71  provided to residents and may be included in computing the
   72  staffing ratio for certified nursing assistants if their job
   73  responsibilities include only nursing-assistant-related duties.
   74         3. Each nursing home facility must document compliance with
   75  staffing standards as required under this paragraph and post
   76  daily the names of licensed nurses and certified nursing
   77  assistants staff on duty for the benefit of facility residents
   78  and the public. Facilities must maintain records of staffing in
   79  accordance with 42 C.F.R. s. 483.35(g) and must report staffing
   80  in accordance with 42 C.F.R. s. 483.70(q).
   81         4. The agency must shall recognize the use of licensed
   82  nurses for compliance with minimum staffing requirements for
   83  non-nursing direct care staff certified nursing assistants if
   84  the nursing home facility otherwise meets the minimum staffing
   85  requirements for licensed nurses and the licensed nurses are
   86  performing the duties of a certified nursing assistant. Unless
   87  otherwise approved by the agency, licensed nurses counted toward
   88  the minimum staffing requirements for non-nursing direct care
   89  staff certified nursing assistants must exclusively perform the
   90  duties of a certified nursing assistant for the entire shift and
   91  not also be counted toward the minimum staffing requirements for
   92  licensed nurses. If the agency approved a facility’s request to
   93  use a licensed nurse to perform both licensed nursing and
   94  certified nursing assistant duties, the facility must allocate
   95  the amount of staff time specifically spent on certified nursing
   96  assistant duties for the purpose of documenting compliance with
   97  minimum staffing requirements for non-nursing direct care staff
   98  certified and licensed nursing staff. The hours of a licensed
   99  nurse with dual job responsibilities may not be counted twice.
  100         (c)(b) Paid feeding assistants and non-nursing direct care
  101  nonnursing staff who have successfully completed the feeding
  102  assistant training program under s. 400.141(1)(v) and who
  103  provide providing eating assistance to residents shall not count
  104  toward compliance with minimum staffing standards.
  105         (d)(c) Licensed practical nurses licensed under chapter 464
  106  who provide are providing nursing services in nursing home
  107  facilities under this part may supervise the activities of other
  108  licensed practical nurses, certified nursing assistants, and
  109  other unlicensed personnel providing services in such facilities
  110  in accordance with rules adopted by the Board of Nursing.
  111         Section 2. Paragraphs (g), (n), and (r) of subsection (1)
  112  of section 400.141, Florida Statutes, are amended to read:
  113         400.141 Administration and management of nursing home
  114  facilities.—
  115         (1) Every licensed facility shall comply with all
  116  applicable standards and rules of the agency and shall:
  117         (g) If the facility has a standard license, exceeds the
  118  minimum required hours of direct care provided by licensed
  119  nurses nursing and non-nursing certified nursing assistant
  120  direct care staff per resident per day, and is part of a
  121  continuing care facility licensed under chapter 651 or a
  122  retirement community that offers other services pursuant to part
  123  III of this chapter or part I or part III of chapter 429 on a
  124  single campus, be allowed to share programming and staff. At the
  125  time of inspection, a continuing care facility or retirement
  126  community that uses this option must demonstrate through
  127  staffing records that minimum staffing requirements for the
  128  facility were met. Licensed nurses and non-nursing direct care
  129  staff certified nursing assistants who work in the facility may
  130  be used to provide services elsewhere on campus if the facility
  131  exceeds the minimum number of direct care hours required per
  132  resident per day and the total number of residents receiving
  133  direct care services from a licensed nurse or non-nursing direct
  134  care staff a certified nursing assistant does not cause the
  135  facility to violate the staffing ratios required under s.
  136  400.23(3)(b) s. 400.23(3)(a). Compliance with the minimum
  137  staffing ratios must be based on the total number of residents
  138  receiving direct care services, regardless of where they reside
  139  on campus. If the facility receives a conditional license, it
  140  may not share staff until the conditional license status ends.
  141  This paragraph does not restrict the agency’s authority under
  142  federal or state law to require additional staff if a facility
  143  is cited for deficiencies in care which are caused by an
  144  insufficient number of certified nursing assistants or licensed
  145  nurses. The agency may adopt rules for the documentation
  146  necessary to determine compliance with this provision.
  147         (n) Comply with state minimum-staffing requirements:
  148         1. A facility that has failed to comply with state minimum
  149  staffing requirements for 2 consecutive days is prohibited from
  150  accepting new admissions until the facility has achieved the
  151  minimum-staffing requirements for 6 consecutive days. For the
  152  purposes of this subparagraph, any person who was a resident of
  153  the facility and was absent from the facility for the purpose of
  154  receiving medical care at a separate location or was on a leave
  155  of absence is not considered a new admission. Failure by the
  156  facility to impose such an admissions moratorium is subject to a
  157  $1,000 fine.
  158         2. A facility that does not have a conditional license may
  159  be cited for failure to comply with the standards in s.
  160  400.23(3)(b)1.b. and c. s. 400.23(3)(a)1.b. and c. only if it
  161  has failed to meet those standards on 2 consecutive days or if
  162  it has failed to meet at least 97 percent of those standards on
  163  any one day.
  164         3. A facility that has a conditional license must be in
  165  compliance with the standards in s. 400.23(3)(b) s. 400.23(3)(a)
  166  at all times.
  167         (r) Maintain in the medical record for each resident a
  168  daily chart of direct care certified nursing assistant services
  169  provided to the resident. The direct care staff certified
  170  nursing assistant who is caring for the resident must complete
  171  this record by the end of his or her shift. This record must
  172  indicate assistance with activities of daily living, assistance
  173  with eating, and assistance with drinking, and any other direct
  174  care provided and must record each offering of nutrition and
  175  hydration for those residents whose plan of care or assessment
  176  indicates a risk for malnutrition or dehydration.
  177         Section 3. This act shall take effect July 1, 2022.