January 26, 2021
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_h1401__
HB 1401

1
A bill to be entitled
2An act relating to adult protection and care; amending s.
3429.28, F.S.; specifying certain conditions for transfer
4or discharge of a resident in an assisted living facility
5in the facility's resident bill of rights; creating s.
6429.285, F.S.; providing definitions; prohibiting resident
7transfer or discharge in the absence of certain specified
8conditions; requiring the facility to provide notice to
9the Agency for Health Care Administration when
10transferring or discharging a resident; providing for
11onsite inspection of the facility upon receipt of such
12notice; authorizing residents to challenge transfer or
13discharge decisions; providing for reimbursement of bed
14reservation payments; specifying timeframes for resident
15notice upon transfer or discharge; providing circumstances
16for acceleration of timeframes; clarifying certain notice
17requirements; permitting residents to seek the assistance
18of the local long-term care ombudsmen council in reviewing
19a notice of transfer or discharge and in initiating the
20fair hearing process; providing timeframes for requesting
21and holding a fair hearing to challenge a facility's
22proposed transfer or discharge; providing for emergency
23transfers and discharges; permitting the local long-term
24care ombudsmen council to request private informal contact
25with a resident upon receipt of a notice to transfer or
26discharge; providing that the Department of Children and
27Family Services' Office of Appeals Hearings shall conduct
28certain hearings; requiring certain persons to be present
29at the hearing; providing hearing requirements;
30authorizing the agency to adopt rules; amending ss. 429.07
31and 429.31, F.S.; conforming cross-references; providing
32an effective date.
33
34Be It Enacted by the Legislature of the State of Florida:
35
36     Section 1.  Paragraph (k) of subsection (1) of section
37429.28, Florida Statutes, is amended to read:
38     429.28  Resident bill of rights.--
39     (1)  No resident of a facility shall be deprived of any
40civil or legal rights, benefits, or privileges guaranteed by
41law, the Constitution of the State of Florida, or the
42Constitution of the United States as a resident of a facility.
43Every resident of a facility shall have the right to:
44     (k)  Be transferred or discharged only for the reasons
45specified under s. 429.285 and only after following procedures
46required by that section. A facility licensed under this part
47may not transfer or discharge a resident solely because the
48source of payment for care changes. Admission to a facility
49licensed under this part may not be conditioned upon a waiver of
50such right, and any document or provision in a document which
51purports to waive or preclude such right is void and
52unenforceable. The resident and the family or representative of
53the resident shall be consulted in choosing another facility. At
54least 45 days' notice of relocation or termination of residency
55from the facility unless, for medical reasons, the resident is
56certified by a physician to require an emergency relocation to a
57facility providing a more skilled level of care or the resident
58engages in a pattern of conduct that is harmful or offensive to
59other residents. In the case of a resident who has been
60adjudicated mentally incapacitated, the guardian shall be given
61at least 45 days' notice of a nonemergency relocation or
62residency termination. Reasons for relocation shall be set forth
63in writing. In order for a facility to terminate the residency
64of an individual without notice as provided herein, the facility
65shall show good cause in a court of competent jurisdiction.
66     Section 2.  Section 429.285, Florida Statutes, is created
67to read:
68     429.285  Resident transfer or discharge; requirements and
69procedures; hearings.--
70     (1)  As used in this section, the term:
71     (a)  "Discharge" means to move a resident to a
72noninstitutional setting when the releasing facility ceases to
73be responsible for the resident's care.
74     (b)  "Transfer" means to move a resident from the facility
75to another legally responsible institutional setting.
76     (2)  A facility licensed under this part must permit a
77resident to remain in the facility. A resident may not be
78transferred or discharged from the facility unless:
79     (a)  The transfer or discharge is necessary for the
80resident's welfare and the resident's needs cannot be met in the
81facility;
82     (b)  The transfer or discharge is appropriate because the
83resident's health has improved sufficiently so the resident no
84longer needs the services provided by the facility;
85     (c)  The health and safety of other residents or facility
86employees would be endangered;
87     (d)  The resident has failed, after reasonable and
88appropriate notice, to provide payment for his or her stay in
89the facility; or
90     (e)  The facility ceases to operate.
91     (3)  When a transfer or discharge is initiated by the
92assisted living facility, the administrator of the facility that
93is transferring or discharging the resident, or an individual
94employed by the facility who is designated by the administrator
95of the facility to act on behalf of the administration, must
96sign the notice of transfer or discharge. Any notice indicating
97a medical reason for transfer or discharge must be signed by the
98resident's attending physician or include an attached written
99order for the transfer or discharge. The notice or the order
100must be signed by the resident's physician, treating physician,
101nurse practitioner, or physician assistant.
102     (4)(a)  Each facility must notify the agency of any
103proposed transfer or discharge of a resident when such transfer
104or discharge is necessitated by changes in the physical plant of
105the facility that make the facility unsafe for the resident.
106     (b)  Upon receipt of such a notice, the agency shall
107conduct an onsite inspection of the facility to verify the
108necessity of the transfer or discharge.
109     (5)  A resident of a facility may challenge a decision by
110the facility to transfer or discharge the resident.
111     (6)  A facility that has been reimbursed for reserving a
112bed and, for reasons other than those permitted under this
113section, refuses to readmit a resident within the prescribed
114timeframe shall refund the bed reservation payment.
115     (7)  At least 30 days prior to any proposed transfer or
116discharge, a facility must provide advance notice of the
117proposed transfer or discharge to the resident and, if known, to
118a family member or the resident's legal guardian or
119representative, except that in the following circumstances the
120facility shall give notice as soon as practicable before the
121transfer or discharge:
122     (a)  The transfer or discharge is necessary for the
123resident's welfare and the resident's needs cannot be met in the
124facility, and the circumstances are documented in the resident's
125medical records by the resident's physician; or
126     (b)  The health or safety of other residents or facility
127employees would be endangered, and the circumstances are
128documented in the resident's medical records by the resident's
129physician or the medical director if the resident's physician is
130not available.
131     (8)  The notice required by subsection (7) must be in
132writing and must contain all information required by state and
133federal law, rules, or regulations applicable to Medicaid or
134Medicare cases. The agency shall develop a standard document to
135be used by all facilities licensed under this part for purposes
136of notifying residents of a transfer or discharge. Such document
137must include a means for a resident to request the local long-
138term care ombudsman council to review the notice and request
139information about or assistance with initiating a fair hearing
140with the Department of Children and Family Services' Office of
141Appeals Hearings. In addition to any other pertinent information
142included, the form shall:
143     (a)  Specify the reason allowed under federal or state law
144that the resident is being transferred or discharged, with an
145explanation to support this action.
146     (b)  State the effective date of the transfer or discharge
147and the location to which the resident is being transferred or
148discharged.
149     (c)  Clearly describe the resident's right to appeal and
150the procedures for filing an appeal, including the right to
151request the local long-term care ombudsman council to review the
152notice of transfer or discharge.
153
154A copy of the notice must be placed in the resident's clinical
155record, and a copy must be transmitted to the resident's legal
156guardian or representative and to the local long-term care
157ombudsman council within 5 business days after signature by the
158resident or the resident's legal guardian or representative .
159     (9)  A resident may request that the local long-term care
160ombudsman council review any notice of transfer or discharge
161given to the resident. When requested by a resident to review a
162notice of transfer or discharge, the local long-term care
163ombudsman council shall do so within 7 days after receipt of the
164request. The facility administrator, or the administrator's
165designee, must forward the request for review contained in the
166notice to the local long-term care ombudsman council within 24
167hours after such request is submitted. Failure to forward the
168request within 24 hours after the request is submitted shall
169toll the running of the 30-day advance notice period until the
170request has been forwarded.
171     (10)(a)  A resident is entitled to a fair hearing to
172challenge a facility's proposed transfer or discharge. The
173resident or the resident's legal guardian or representative may
174request a hearing at any time within 90 days after the
175resident's receipt of the facility's notice of the proposed
176transfer or discharge.
177     (b)  If a resident or the resident's legal guardian or
178representative requests a hearing within 10 days after receiving
179the notice from the facility, the request shall stay the
180proposed transfer or discharge pending a hearing decision. The
181facility may not take action, and the resident may remain in the
182facility, until the outcome of the initial fair hearing, which
183must be completed within 90 days after receipt of a request for
184a fair hearing.
185     (c)  If the resident or the resident's legal guardian or
186representative fails to request a hearing within 10 days after
187receipt of the facility notice of the proposed transfer or
188discharge, the facility may transfer or discharge the resident
189after 30 days from the date the resident received the notice.
190     (11)  Notwithstanding paragraph (10)(b), an emergency
191transfer or discharge may be implemented as necessary pursuant
192to state law during the period of time after the notice is given
193and before the time a hearing decision is rendered. Notice of an
194emergency transfer or discharge to the resident, the resident's
195legal guardian or representative, and the local long-term care
196ombudsman council if requested pursuant to subsection (9) must
197be by telephone or in person. This notice shall be given before
198the transfer or discharge, if possible, or as soon thereafter as
199practicable. A local long-term care ombudsman council conducting
200a review under this subsection shall do so within 24 hours after
201receipt of the request. The resident's file must be documented
202to show who was contacted, whether the contact was by telephone
203or in person, and the date and time of the contact. If the
204notice is not given in writing, written notice meeting the
205requirements of subsection (8) must be given the next working
206day.
207     (12)  After receipt of any notice required under this
208section, the local long-term care ombudsman council may request
209a private informal conversation with a resident to whom the
210notice is directed, and, if known, a family member or the
211resident's legal guardian or representative, to ensure that the
212facility is proceeding with the transfer or discharge in
213accordance with the requirements of this section. If requested,
214the local long-term care ombudsman council shall assist the
215resident with filing an appeal of the proposed transfer or
216discharge.
217     (13)  The following persons must be present at all hearings
218authorized under this section:
219     (a)  The resident or the resident's legal guardian or
220representative.
221     (b)  The facility administrator or the facility's legal
222representative or designee.
223
224A representative of the local long-term care ombudsman council
225may be present at all hearings authorized by this section.
226     (14)(a)  The Department of Children and Family Services'
227Office of Appeals Hearings shall conduct a hearing under this
228section. The office shall notify the facility of a resident's
229request for a hearing.
230     (b)  The Department of Children and Family Services shall,
231by rule, establish procedures to be used for fair hearings
232requested by residents. These procedures shall be equivalent to
233the procedures used for fair hearings for other Medicaid cases,
234chapter 10-2, part VI, Florida Administrative Code. The burden
235of proof must be clear and convincing evidence. A hearing
236decision must be rendered within 90 days after receipt of the
237request for hearing.
238     (c)  If the hearing decision is favorable to the resident
239who has been transferred or discharged, the resident must be
240readmitted to the facility's first available bed.
241     (d)  The decision of the hearing officer shall be final.
242Any aggrieved party may appeal the decision to the district
243court of appeal in the appellate district in which the facility
244is located. Review procedures shall be conducted in accordance
245with the Florida Rules of Appellate Procedure.
246     (15)  The agency may adopt rules pursuant to ss. 120.536(1)
247and 120.54 to administer this section.
248     Section 3.  Paragraphs (b) and (c) of subsection (3) of
249section 429.07, Florida Statutes, are amended to read:
250     429.07  License required; fee.--
251     (3)  In addition to the requirements of s. 408.806, each
252license granted by the agency must state the type of care for
253which the license is granted. Licenses shall be issued for one
254or more of the following categories of care: standard, extended
255congregate care, limited nursing services, or limited mental
256health.
257     (b)  An extended congregate care license shall be issued to
258facilities providing, directly or through contract, services
259beyond those authorized in paragraph (a), including acts
260performed pursuant to part I of chapter 464 by persons licensed
261thereunder, and supportive services defined by rule to persons
262who otherwise would be disqualified from continued residence in
263a facility licensed under this part.
264     1.  In order for extended congregate care services to be
265provided in a facility licensed under this part, the agency must
266first determine that all requirements established in law and
267rule are met and must specifically designate, on the facility's
268license, that such services may be provided and whether the
269designation applies to all or part of a facility. Such
270designation may be made at the time of initial licensure or
271relicensure, or upon request in writing by a licensee under this
272part and part II of chapter 408. Notification of approval or
273denial of such request shall be made in accordance with part II
274of chapter 408. Existing facilities qualifying to provide
275extended congregate care services must have maintained a
276standard license and may not have been subject to administrative
277sanctions during the previous 2 years, or since initial
278licensure if the facility has been licensed for less than 2
279years, for any of the following reasons:
280     a.  A class I or class II violation;
281     b.  Three or more repeat or recurring class III violations
282of identical or similar resident care standards as specified in
283rule from which a pattern of noncompliance is found by the
284agency;
285     c.  Three or more class III violations that were not
286corrected in accordance with the corrective action plan approved
287by the agency;
288     d.  Violation of resident care standards resulting in a
289requirement to employ the services of a consultant pharmacist or
290consultant dietitian;
291     e.  Denial, suspension, or revocation of a license for
292another facility under this part in which the applicant for an
293extended congregate care license has at least 25 percent
294ownership interest; or
295     f.  Imposition of a moratorium pursuant to this part or
296part II of chapter 408 or initiation of injunctive proceedings.
297     2.  Facilities that are licensed to provide extended
298congregate care services shall maintain a written progress
299report on each person who receives such services, which report
300describes the type, amount, duration, scope, and outcome of
301services that are rendered and the general status of the
302resident's health. A registered nurse, or appropriate designee,
303representing the agency shall visit such facilities at least
304quarterly to monitor residents who are receiving extended
305congregate care services and to determine if the facility is in
306compliance with this part, part II of chapter 408, and rules
307that relate to extended congregate care. One of these visits may
308be in conjunction with the regular survey. The monitoring visits
309may be provided through contractual arrangements with
310appropriate community agencies. A registered nurse shall serve
311as part of the team that inspects such facility. The agency may
312waive one of the required yearly monitoring visits for a
313facility that has been licensed for at least 24 months to
314provide extended congregate care services, if, during the
315inspection, the registered nurse determines that extended
316congregate care services are being provided appropriately, and
317if the facility has no class I or class II violations and no
318uncorrected class III violations. Before such decision is made,
319the agency shall consult with the long-term care ombudsman
320council for the area in which the facility is located to
321determine if any complaints have been made and substantiated
322about the quality of services or care. The agency may not waive
323one of the required yearly monitoring visits if complaints have
324been made and substantiated.
325     3.  Facilities that are licensed to provide extended
326congregate care services shall:
327     a.  Demonstrate the capability to meet unanticipated
328resident service needs.
329     b.  Offer a physical environment that promotes a homelike
330setting, provides for resident privacy, promotes resident
331independence, and allows sufficient congregate space as defined
332by rule.
333     c.  Have sufficient staff available, taking into account
334the physical plant and firesafety features of the building, to
335assist with the evacuation of residents in an emergency, as
336necessary.
337     d.  Adopt and follow policies and procedures that maximize
338resident independence, dignity, choice, and decisionmaking to
339permit residents to age in place to the extent possible, so that
340moves due to changes in functional status are minimized or
341avoided.
342     e.  Allow residents or, if applicable, a resident's
343representative, designee, surrogate, guardian, or attorney in
344fact to make a variety of personal choices, participate in
345developing service plans, and share responsibility in
346decisionmaking.
347     f.  Implement the concept of managed risk.
348     g.  Provide, either directly or through contract, the
349services of a person licensed pursuant to part I of chapter 464.
350     h.  In addition to the training mandated in s. 429.52,
351provide specialized training as defined by rule for facility
352staff.
353     4.  Facilities licensed to provide extended congregate care
354services are exempt from the criteria for continued residency as
355set forth in rules adopted under s. 429.41. Facilities so
356licensed shall adopt their own requirements within guidelines
357for continued residency set forth by rule. However, such
358facilities may not serve residents who require 24-hour nursing
359supervision. Facilities licensed to provide extended congregate
360care services shall provide each resident with a written copy of
361facility policies governing admission and retention.
362     5.  The primary purpose of extended congregate care
363services is to allow residents, as they become more impaired,
364the option of remaining in a familiar setting from which they
365would otherwise be disqualified for continued residency. A
366facility licensed to provide extended congregate care services
367may also admit an individual who exceeds the admission criteria
368for a facility with a standard license, if the individual is
369determined appropriate for admission to the extended congregate
370care facility.
371     6.  Before admission of an individual to a facility
372licensed to provide extended congregate care services, the
373individual must undergo a medical examination as provided in s.
374429.26(4) and the facility must develop a preliminary service
375plan for the individual.
376     7.  When a facility can no longer provide or arrange for
377services in accordance with the resident's service plan and
378needs and the facility's policy, the facility shall make
379arrangements for relocating the person in accordance with s.
380429.285 429.28(1)(k).
381     8.  Failure to provide extended congregate care services
382may result in denial of extended congregate care license
383renewal.
384     9.  No later than January 1 of each year, the department,
385in consultation with the agency, shall prepare and submit to the
386Governor, the President of the Senate, the Speaker of the House
387of Representatives, and the chairs of appropriate legislative
388committees, a report on the status of, and recommendations
389related to, extended congregate care services. The status report
390must include, but need not be limited to, the following
391information:
392     a.  A description of the facilities licensed to provide
393such services, including total number of beds licensed under
394this part.
395     b.  The number and characteristics of residents receiving
396such services.
397     c.  The types of services rendered that could not be
398provided through a standard license.
399     d.  An analysis of deficiencies cited during licensure
400inspections.
401     e.  The number of residents who required extended
402congregate care services at admission and the source of
403admission.
404     f.  Recommendations for statutory or regulatory changes.
405     g.  The availability of extended congregate care to state
406clients residing in facilities licensed under this part and in
407need of additional services, and recommendations for
408appropriations to subsidize extended congregate care services
409for such persons.
410     h.  Such other information as the department considers
411appropriate.
412     (c)  A limited nursing services license shall be issued to
413a facility that provides services beyond those authorized in
414paragraph (a) and as specified in this paragraph.
415     1.  In order for limited nursing services to be provided in
416a facility licensed under this part, the agency must first
417determine that all requirements established in law and rule are
418met and must specifically designate, on the facility's license,
419that such services may be provided. Such designation may be made
420at the time of initial licensure or relicensure, or upon request
421in writing by a licensee under this part and part II of chapter
422408. Notification of approval or denial of such request shall be
423made in accordance with part II of chapter 408. Existing
424facilities qualifying to provide limited nursing services shall
425have maintained a standard license and may not have been subject
426to administrative sanctions that affect the health, safety, and
427welfare of residents for the previous 2 years or since initial
428licensure if the facility has been licensed for less than 2
429years.
430     2.  Facilities that are licensed to provide limited nursing
431services shall maintain a written progress report on each person
432who receives such nursing services, which report describes the
433type, amount, duration, scope, and outcome of services that are
434rendered and the general status of the resident's health. A
435registered nurse representing the agency shall visit such
436facilities at least twice a year to monitor residents who are
437receiving limited nursing services and to determine if the
438facility is in compliance with applicable provisions of this
439part, part II of chapter 408, and related rules. The monitoring
440visits may be provided through contractual arrangements with
441appropriate community agencies. A registered nurse shall also
442serve as part of the team that inspects such facility.
443     3.  A person who receives limited nursing services under
444this part must meet the admission criteria established by the
445agency for assisted living facilities. When a resident no longer
446meets the admission criteria for a facility licensed under this
447part, arrangements for relocating the person shall be made in
448accordance with s. 429.285 429.28(1)(k), unless the facility is
449licensed to provide extended congregate care services.
450     Section 4.  Subsection (1) of section 429.31, Florida
451Statutes, is amended to read:
452     429.31  Closing of facility; notice; penalty.--
453     (1)  In addition to the requirements of part II of chapter
454408, the facility shall inform each resident or the next of kin,
455legal representative, or agency acting on each resident's
456behalf, of the fact and the proposed time of discontinuance of
457operation, following the notification requirements provided in
458s. 429.285 429.28(1)(k). In the event a resident has no person
459to represent him or her, the facility shall be responsible for
460referral to an appropriate social service agency for placement.
461     Section 5.  This act shall take effect July 1, 2008.


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