Florida Senate - 2022                              CS for SB 804
       
       
        
       By the Committee on Health Policy; and Senator Albritton
       
       
       
       
       
       588-02938-22                                           2022804c1
    1                        A bill to be entitled                      
    2         An act relating to modernization of nursing home
    3         facility staffing; amending s. 400.021, F.S.; revising
    4         the definition of the term “resident care plan”;
    5         amending s. 400.23, F.S.; defining the terms “direct
    6         care staff” and “facility assessment”; specifying
    7         functions that do not constitute direct care staffing
    8         hours for purposes of required nursing home staffing
    9         ratios; revising nursing home staffing requirements;
   10         requiring nursing home facilities to maintain staffing
   11         records for a specified time and report staffing
   12         information consistent with federal law; providing
   13         construction; providing that evidence of compliance
   14         with state minimum staffing requirements is not
   15         admissible as evidence for compliance with specified
   16         provisions of federal law; providing that eating
   17         assistance to residents provided by certain direct
   18         care staff counts toward certain minimum direct care
   19         staffing requirements; authorizing the Agency for
   20         Health Care Administration to adopt rules; amending s.
   21         400.0234, F.S.; providing that certain forms filed
   22         with the agency are not confidential or exempt and may
   23         be discoverable and admissible in civil or
   24         administrative proceedings; amending s. 400.024, F.S.;
   25         providing that an unsatisfied or undischarged adverse
   26         final judgment in connection with a nursing home
   27         facility becomes the responsibility and liability of a
   28         new owner if ownership of the facility is transferred;
   29         requiring a licensee to provide written notice to any
   30         pending claimants or their attorneys of record within
   31         a specified timeframe after filing a change of
   32         ownership application with the agency; providing
   33         requirements for the notice; providing that claimants
   34         may object to the application within a specified
   35         timeframe under certain circumstances; requiring the
   36         agency to consider any such objections in its
   37         decision; providing for the filing of such objections
   38         in circuit court under certain circumstances; defining
   39         the term “claimant”; amending s. 400.141, F.S.;
   40         conforming cross-references and provisions to changes
   41         made by the act; revising provisions related to
   42         moratoriums on new admissions for facilities that fail
   43         to comply with minimum staffing requirements; deleting
   44         a certain fine; creating the Nursing Home
   45         Sustainability Task Force; providing duties and
   46         membership of the task force; requiring the task force
   47         to submit its recommendations to the agency, the
   48         Governor, and the Legislature by a specified date;
   49         amending s. 651.118, F.S.; making a technical change;
   50         providing an effective date.
   51          
   52  Be It Enacted by the Legislature of the State of Florida:
   53  
   54         Section 1. Subsection (18) of section 400.021, Florida
   55  Statutes, is amended to read:
   56         400.021 Definitions.—When used in this part, unless the
   57  context otherwise requires, the term:
   58         (18) “Resident care plan” means a written, comprehensive
   59  person-centered care plan developed in accordance with 42 C.F.R.
   60  s. 483.21(b) which is, maintained, and reviewed at least not
   61  less than quarterly by a registered nurse, with participation
   62  from other facility staff and the resident or his or her
   63  designee or legal representative. The resident care plan must
   64  include, which includes a comprehensive assessment of the needs
   65  of an individual resident; the type and frequency of services
   66  required to provide the necessary care for the resident to
   67  attain or maintain the highest practicable physical, mental, and
   68  psychosocial well-being; a listing of services provided within
   69  or outside the facility to meet those needs; and an explanation
   70  of service goals.
   71         Section 2. Subsection (3) of section 400.23, Florida
   72  Statutes, is amended to read:
   73         400.23 Rules; evaluation and deficiencies; licensure
   74  status.—
   75         (3)(a)1. As used in this subsection, the term:
   76         a.“Direct care staff” means individuals who, through
   77  interpersonal contact with residents or resident care
   78  management, provide care and services to allow residents to
   79  attain or maintain the highest practicable physical, mental, and
   80  psychosocial well-being. The term includes, but is not limited
   81  to, disciplines and professions that must be reported in
   82  accordance with 42 C.F.R. s. 483.70(q) in the following
   83  categories of direct care services:
   84         (I) Physician.
   85         (II) Nursing.
   86         (III) Pharmacy.
   87         (IV) Dietary.
   88         (V) Therapeutic.
   89         (VI) Dental.
   90         (VII)Podiatry.
   91         (VIII) Mental health.
   92  
   93  The term does not include individuals whose primary duty is
   94  maintaining the physical environment of the facility, including,
   95  but not limited to, food preparation, laundry, and housekeeping.
   96         b.“Facility assessment” means a process to determine the
   97  staff competencies that are necessary to provide the level and
   98  types of care needed for the facility’s resident population
   99  considering the types of diseases, conditions, physical and
  100  cognitive disabilities, overall acuity, and other pertinent
  101  factors that are present within that resident population.
  102  Additional requirements for conducting a facility assessment
  103  must be performed in accordance with 42 C.F.R. s. 483.70(e).
  104         2. For purposes of this subsection, direct care staffing
  105  hours do not include time spent on nursing administration, staff
  106  development, staffing coordination, and the administrative
  107  portion of the minimum data set and care plan coordination for
  108  Medicaid.
  109         (b)1.Each facility must determine its direct care staffing
  110  needs based on the facility assessment and the individual needs
  111  of each resident based on the resident’s care plan. At a
  112  minimum, staffing The agency shall adopt rules providing minimum
  113  staffing requirements for nursing home facilities. These
  114  requirements must include, for each facility:
  115         a. A minimum weekly average of certified nursing assistant
  116  and licensed nursing staffing combined of 3.6 hours of direct
  117  care per resident per day. As used in this subparagraph sub
  118  subparagraph, a week is defined as Sunday through Saturday.
  119         b. A minimum certified nursing assistant staffing of 2.0
  120  2.5 hours of direct care by a certified nursing assistant per
  121  resident per day. A facility may not staff below a ratio of one
  122  certified nursing assistant per 20 residents.
  123         c. A minimum licensed nursing staffing of 1.0 hour of
  124  direct care by a licensed nurse per resident per day. A facility
  125  may not staff below a ratio of one licensed nurse per 40
  126  residents.
  127         2. Nursing assistants employed under s. 400.211(2) may be
  128  included in computing the hours of direct care provided by
  129  certified nursing assistants and may be included in computing
  130  the staffing ratio for certified nursing assistants if their job
  131  responsibilities include only nursing-assistant-related duties.
  132         3. Each nursing home facility must document compliance with
  133  staffing standards as required under this paragraph and post
  134  daily the names of licensed nurses and certified nursing
  135  assistants staff on duty for the benefit of facility residents
  136  and the public. Facilities must maintain the records documenting
  137  compliance with minimum staffing standards for a period of 5
  138  years and must report staffing in accordance with 42 C.F.R. s.
  139  483.70(q).
  140         4. The agency must shall recognize the use of licensed
  141  nurses for compliance with minimum staffing requirements for
  142  certified nursing assistants if the nursing home facility
  143  otherwise meets the minimum staffing requirements for licensed
  144  nurses and the licensed nurses are performing the duties of a
  145  certified nursing assistant. Unless otherwise approved by the
  146  agency, licensed nurses counted toward the minimum staffing
  147  requirements for certified nursing assistants must exclusively
  148  perform the duties of a certified nursing assistant for the
  149  entire shift and not also be counted toward the minimum staffing
  150  requirements for licensed nurses. If the agency approved a
  151  facility’s request to use a licensed nurse to perform both
  152  licensed nursing and certified nursing assistant duties, the
  153  facility must allocate the amount of staff time specifically
  154  spent on certified nursing assistant duties for the purpose of
  155  documenting compliance with minimum staffing requirements for
  156  certified and licensed nursing staff. The hours of a licensed
  157  nurse with dual job responsibilities may not be counted twice.
  158         5.The nurse staffing requirements imposed in this
  159  paragraph are minimum nurse staffing requirements for nursing
  160  home facilities. Evidence that a facility complied with the
  161  minimum direct care staffing requirements under subparagraph 1.
  162  is not admissible as evidence of compliance with the nursing
  163  services requirements under 42 C.F.R. s. 483.35 or 42 C.F.R. s.
  164  483.70.
  165         (c)(b) Paid feeding assistants and direct care staff, other
  166  than certified nursing assistants, who have successfully
  167  completed the feeding assistant training program under s.
  168  400.141(1)(v) and who provide nonnursing staff providing eating
  169  assistance to residents shall not count toward compliance with
  170  overall direct care minimum staffing hours but not the hours of
  171  direct care required for certified nursing assistants or
  172  licensed nurses standards.
  173         (d)(c) Licensed practical nurses licensed under chapter 464
  174  who provide are providing nursing services in nursing home
  175  facilities under this part may supervise the activities of other
  176  licensed practical nurses, certified nursing assistants, and
  177  other unlicensed personnel providing services in such facilities
  178  in accordance with rules adopted by the Board of Nursing.
  179         (e)The agency may adopt rules to implement this
  180  subsection.
  181         Section 3. Present subsection (2) of section 400.0234,
  182  Florida Statutes, is redesignated as subsection (3), and a new
  183  subsection (2) is added to that section, to read:
  184         400.0234 Availability of facility records for investigation
  185  of resident’s rights violations and defenses; penalty.—
  186         (2) Forms filed with the agency pursuant to s. 408.061(5)
  187  and (6) are not confidential or exempt from the provisions of s.
  188  119.07(1) and s. 24(a), Art. I of the State Constitution and may
  189  be discoverable and admissible in a civil action under this part
  190  or an administrative action under this part or part II of
  191  chapter 408.
  192         Section 4. Subsection (4) of section 400.024, Florida
  193  Statutes, is amended to read:
  194         400.024 Failure to satisfy a judgment or settlement
  195  agreement.—
  196         (4) If, After the agency is placed on notice pursuant to
  197  subsection (2), the following applies and:
  198         (a) If the license is subject to renewal, the agency may
  199  deny the license renewal unless compliance with this section is
  200  achieved.; and
  201         (b) If a change of ownership application for the facility
  202  at issue is filed submitted by the licensee, by a person or
  203  entity identified as having a controlling interest in the
  204  licensee, or by a related party, the unsatisfied or undischarged
  205  adverse final judgment under subsection (1) becomes the
  206  responsibility and liability of the transferee, and the agency
  207  shall deny the change of ownership application unless compliance
  208  with this section is achieved.
  209         (c)If a change of ownership application for the facility
  210  at issue is filed by the licensee, by a person or entity
  211  identified as having a controlling interest in the licensee, or
  212  by a related party, then:
  213         1.The licensee or transferor must provide written notice
  214  of the filing of the application to each pending claimant or the
  215  claimant’s attorney of record, if applicable, within 14 days
  216  after the date the application is filed with the agency.
  217         2.The written notice must be provided by certified mail,
  218  return receipt requested, or other method that provides
  219  verification of receipt.
  220         3.A claimant has 30 days after the date of receipt of the
  221  written notice to object to the application if the claimant has
  222  reason to believe that the approval of the application would
  223  facilitate a fraudulent transfer or allow the transferor to
  224  avoid financial responsibility for the claimant’s pending claim.
  225         4.The agency must consider any objection brought pursuant
  226  to this subsection in its decision to approve or deny an
  227  application for change of ownership under this part and part II
  228  of chapter 408.
  229         5.If a claim is pending in arbitration at the time that
  230  the application for change of ownership is filed, the claimant
  231  may file a petition to enjoin the transfer in circuit court.
  232         6.As used in this paragraph, “claimant” means a resident
  233  or the resident’s family or personal representative who has
  234  notified the licensee or facility of a potential claim by notice
  235  of intent letter or who has initiated an action, claim, or
  236  arbitration proceeding against the licensee or facility.
  237         Section 5. Paragraphs (g), (n), and (r) of subsection (1)
  238  of section 400.141, Florida Statutes, are amended to read:
  239         400.141 Administration and management of nursing home
  240  facilities.—
  241         (1) Every licensed facility shall comply with all
  242  applicable standards and rules of the agency and shall:
  243         (g) If the facility has a standard license, exceeds the
  244  minimum required hours of direct care provided by licensed
  245  nurses nursing and certified nursing assistants assistant direct
  246  care per resident per day, and is part of a continuing care
  247  facility licensed under chapter 651 or is a retirement community
  248  that offers other services pursuant to part III of this chapter
  249  or part I or part III of chapter 429 on a single campus, be
  250  allowed to share programming and staff. At the time of
  251  inspection, a continuing care facility or retirement community
  252  that uses this option must demonstrate through staffing records
  253  that minimum staffing requirements for the facility were met.
  254  Licensed nurses and certified nursing assistants who work in the
  255  facility may be used to provide services elsewhere on campus if
  256  the facility exceeds the minimum number of direct care hours
  257  required per resident per day and the total number of residents
  258  receiving direct care services from a licensed nurse or a
  259  certified nursing assistant does not cause the facility to
  260  violate the staffing ratios required under s. 400.23(3)(b) s.
  261  400.23(3)(a). Compliance with the minimum staffing ratios must
  262  be based on the total number of residents receiving direct care
  263  services, regardless of where they reside on campus. If the
  264  facility receives a conditional license, it may not share staff
  265  until the conditional license status ends. This paragraph does
  266  not restrict the agency’s authority under federal or state law
  267  to require additional staff if a facility is cited for
  268  deficiencies in care which are caused by an insufficient number
  269  of certified nursing assistants or licensed nurses. The agency
  270  may adopt rules for the documentation necessary to determine
  271  compliance with this provision.
  272         (n) Comply with state minimum-staffing requirements:
  273         1. The agency may impose a moratorium on new admissions for
  274  a facility that has failed for 48 consecutive hours to comply
  275  with the minimum hours of direct care required to be provided by
  276  a licensed nurse or certified nursing assistant. The moratorium
  277  may be imposed until the facility is able to document compliance
  278  with the minimum direct care hours required per resident per day
  279  for licensed nurses and certified nursing assistants state
  280  minimum-staffing requirements for 2 consecutive days is
  281  prohibited from accepting new admissions until the facility has
  282  achieved the minimum-staffing requirements for 6 consecutive
  283  days. For the purposes of this subparagraph, any person who was
  284  a resident of the facility and was absent from the facility for
  285  the purpose of receiving medical care at a separate location or
  286  was on a leave of absence is not considered a new admission.
  287  Failure by the facility to impose such an admissions moratorium
  288  is subject to a $1,000 fine.
  289         2. A facility that has a standard does not have a
  290  conditional license may be cited for failure to comply with the
  291  standards in s. 400.23(3)(b)1.b. and c. s. 400.23(3)(a)1.b. and
  292  c. only if it has failed to meet those standards on 2
  293  consecutive days or if it has failed to meet at least 97 percent
  294  of those standards on any one day.
  295         3. A facility that has a conditional license must be in
  296  compliance with the standards in s. 400.23(3)(b) s. 400.23(3)(a)
  297  at all times.
  298         (r) Maintain in the medical record for each resident a
  299  daily chart of direct care certified nursing assistant services
  300  provided to the resident. The direct care staff certified
  301  nursing assistant who is caring for the resident must complete
  302  this record by the end of his or her shift. This record must
  303  indicate assistance with activities of daily living, assistance
  304  with eating, and assistance with drinking, and must record each
  305  offering of nutrition and hydration for those residents whose
  306  plan of care or assessment indicates a risk for malnutrition or
  307  dehydration.
  308         Section 6. Nursing Home Sustainability Task Force.—There is
  309  created the Nursing Home Sustainability Task Force. The task
  310  force shall review, analyze, and make recommendations specific
  311  to the sustainability of the state’s model of providing quality
  312  nursing home care. The task force shall consist of
  313  representatives of nursing home providers and other interested
  314  stakeholders. The task force shall review all areas of the
  315  provision of health care services to residents, regulation,
  316  liability, licensing, quality initiatives, and the availability
  317  of quality, affordable, and accessible health care. The task
  318  force shall make any recommendations to the Agency for Health
  319  Care Administration, the Governor, the President of the Senate,
  320  and the Speaker of the House of Representatives by January 1,
  321  2025.
  322         Section 7. Subsection (6) of section 651.118, Florida
  323  Statutes, is amended to read:
  324         651.118 Agency for Health Care Administration; certificates
  325  of need; sheltered beds; community beds.—
  326         (6) Unless the provider already has a component that is to
  327  be a part of the continuing care facility and that is licensed
  328  under chapter 395, part II of chapter 400, or part I of chapter
  329  429 at the time of construction of the continuing care facility,
  330  the provider must construct the non-nursing nonnursing home
  331  portion of the facility and the nursing home portion of the
  332  facility at the same time. If a provider constructs less than
  333  the number of residential units approved in the certificate of
  334  authority, the number of licensed sheltered nursing home beds
  335  shall be reduced by a proportionate share.
  336         Section 8. This act shall take effect upon becoming a law.