June 03, 2020
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Senate Bill 0276

Senate Bill sb0276e2

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




    CS for SB 276                           Second Engrossed (ntc)



  1                      A bill to be entitled

  2         An act relating to nursing homes and related

  3         health care facilities; amending s. 400.235,

  4         F.S.; revising membership and terms of office

  5         of the Governor's Panel on Excellence in

  6         Long-Term Care; providing for selection of a

  7         panel chairperson; amending s. 400.4195, F.S.;

  8         providing conditions under which the

  9         prohibition against payment of referral fees by

10         assisted living facilities does not apply;

11         authorizing the Agency for Health Care

12         Administration to adopt rules; amending s.

13         817.505, F.S.; providing that certain penalties

14         for patient brokering do not apply under such

15         conditions; providing an effective date.

16

17  Be It Enacted by the Legislature of the State of Florida:

18

19         Section 1.  Paragraph (a) of subsection (3) of section

20  400.235, Florida Statutes, is amended to read:

21         400.235  Nursing home quality and licensure status;

22  Gold Seal Program.--

23         (3)(a)1.  The Gold Seal Program shall be developed and

24  implemented by the Governor's Panel on Excellence in Long-Term

25  Care, which shall operate under the authority of the Executive

26  Office of the Governor. The panel shall be composed of the

27  following members:

28         a.  A consumer advocate for senior citizens, appointed

29  by the Governor.

30

31


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    CS for SB 276                           Second Engrossed (ntc)



  1         b.  Two persons having expertise in the field of

  2  quality management, service-delivery excellence, or

  3  public-sector accountability, appointed by the Governor.

  4         c.  A consumer advocate for senior citizens, appointed

  5  by the Secretary of Elderly Affairs.

  6         d.  An active member of a nursing facility family and

  7  resident care council, appointed by the Secretary of Elderly

  8  Affairs.

  9         e.  A member of the University Consortium on Aging,

10  appointed by the Secretary of Elderly Affairs.

11         f.  The State Long-Term Care Ombudsman.

12         g.  A consumer advocate for senior citizens, appointed

13  by the Florida Life Care Residents Association.

14         h.  A consumer advocate for senior citizens, appointed

15  by the Secretary of Health.

16         i.  A consumer advocate for senior citizens, appointed

17  by the Secretary of the Agency for Health Care Administration.

18         j.  The Deputy Secretary for Medicaid of the Agency for

19  Health Care Administration.

20         k.  One person appointed by the Florida Association of

21  Homes for the Aging.

22         l.  One person appointed by the Florida Health Care

23  Association.

24         m.  A member of the Florida Silver Hair Legislature,

25  appointed by the Florida Silver Hair Legislature.

26         n.  A member of the Florida Alliance for Retired

27  Americans, appointed by the Florida Alliance for Retired

28  Americans.

29         o.  An elder-law attorney appointed by The Florida Bar.

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    CS for SB 276                           Second Engrossed (ntc)



  1  Persons serving on the panel on the effective date of this act

  2  shall continue to serve and persons shall be appointed

  3  according to the criteria described in sub-subparagraphs m.,

  4  n., and o. for terms beginning October 1, 2002; however, for

  5  the dual purpose of staggering the terms of the members and

  6  maintaining continuity, the terms of the panel members serving

  7  on the effective date of this act who were appointed according

  8  to the criteria described in sub-subparagraphs b., d., g., i.,

  9  and k. expire September 30, 2002, and terms of the panel

10  members serving on the effective date of this act who were

11  appointed according to the criteria described in

12  sub-subparagraphs a., c., e., h., and l. expire September 30,

13  2003. Thereafter, each appointive member shall be appointed

14  for a 4-year term in the same manner as the original

15  appointment. A person may not be appointed to serve more than

16  two consecutive 4-year terms. However, an appointee serving on

17  the effective date of this act is not eligible for

18  reappointment.

19         2.  Panel members shall select the panel chairperson to

20  serve a 3-year term by a majority vote at the panel's first

21  meeting after all panel members have been appointed.

22         3.  For the purposes of this paragraph, the term

23  "consumer advocate for senior citizens" means a person who:

24         a.  Does not receive more than 20 percent of his or her

25  personal income from any business involved in the delivery of

26  long-term care services, from any attorney or law firm that

27  represents nursing home facilities or nursing home residents

28  in personal injury actions, or from any affiliated membership

29  organizations or corporations;

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    CS for SB 276                           Second Engrossed (ntc)



  1         b.  Is not an employee of the Agency for Health Care

  2  Administration, the Department of Health, or the Department of

  3  Elderly Affairs; and

  4         c.  Is either a member of an organized senior advocacy

  5  group or has had or currently has a relative in a nursing

  6  home. three persons appointed by the Governor, to include a

  7  consumer advocate for senior citizens and two persons with

  8  expertise in the fields of quality management, service

  9  delivery excellence, or public sector accountability; three

10  persons appointed by the Secretary of Elderly Affairs, to

11  include an active member of a nursing facility family and

12  resident care council and a member of the University

13  Consortium on Aging; the State Long-Term Care Ombudsman; one

14  person appointed by the Florida Life Care Residents

15  Association; one person appointed by the Secretary of Health;

16  two persons appointed by the Secretary of Health Care

17  Administration; one person appointed by the Florida

18  Association of Homes for the Aging; and one person appointed

19  by the Florida Health Care Association. Vacancies on the panel

20  shall be filled in the same manner as the original

21  appointments.

22         Section 2.  Section 400.4195, Florida Statutes, is

23  amended to read:

24         400.4195  Rebates prohibited; penalties.--

25         (1)  Except as provided in subsection (2), it is

26  unlawful for any assisted living facility, or any person or

27  agency employed by or contracting with the facility, licensed

28  under this part to contract or promise to pay or receive any

29  commission, bonus, kickback, or rebate or engage in any

30  split-fee arrangement in any form whatsoever with any health

31  care practitioner, health care facility, or other physician,


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    CS for SB 276                           Second Engrossed (ntc)



  1  surgeon, organization, agency, or person, either directly or

  2  indirectly, for residents referred to an assisted living

  3  facility licensed under this part.

  4         (2)(a)  A facility may employ or contract with persons

  5  or agencies to market the facility for a fee or commission not

  6  based on the volume or value of referrals to the facility.

  7  Fees or commissions may be based on the volume or value of

  8  referrals to the facility when:

  9         1.  The facility is not subject to the provisions of 42

10  U.S.C. s. 1320a-7b;

11         2.  Payment to the contract provider is made under a

12  nonexclusive contract;

13         3.  The contract provider represents multiple

14  facilities with different owners;, provided

15         4.  The employee or contract provider clearly indicates

16  to all clients prior to referral that he or she represents and

17  is being compensated by the facility, in addition to all other

18  facilities represented by the person or agency;

19         5.  The employee or contract provider:

20         a.  Is not a health care practitioner or employee,

21  vendor, or other contract provider of a health care facility

22  in a position to make referrals to an assisted living

23  facility;

24         b.  Is not employed by a health care facility, social

25  service agency, or any other organization in a position to

26  make referrals to an assisted living facility;

27         c.  Does not have an ownership interest in an assisted

28  living facility and is not related to a person with an

29  ownership interest in an assisted living facility;

30         d.  Does not contract with or pay a health care

31  facility, its employees, vendors, or other contract providers


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    CS for SB 276                           Second Engrossed (ntc)



  1  for access to internal or external processes for discharge of

  2  disabled persons over the age of 18 or frail and elderly

  3  persons to assisted living facilities;

  4         e.  Cannot offer the client or referral any money or

  5  gift of value as an enticement for services;

  6         6.  A level 2 background screening must be conducted

  7  for the contract provider or related employees for the

  8  purposes of conducting screening under chapter 435;

  9         7.  Referral is made to a licensed facility;

10         8.  The contract does not require the facility or the

11  individual being referred to use any other services affiliated

12  with or owned in whole or in part by the contract provider;

13         9.  The person referred remains a resident of the

14  facility for at least 90 days.

15         (b)  As used in this section, the term:

16         1.  "Facility" means an assisted living facility, as

17  defined in s. 400.402, which is not part of a continuing care

18  facility licensed under chapter 651;

19         2.  "Contract provider" means a person, agency,

20  organization, or corporation that contracts with a facility to

21  market that facility to potential residents;

22         3.  "Health care facility" means the office of a health

23  care practitioner, a hospital licensed under chapter 395, a

24  long-term care hospital licensed under chapter 395 which meets

25  the requirements of 42 CFR s. 412.23(e), a skilled nursing

26  facility, a hospice, as defined in part IV of chapter 400, an

27  intermediate care facility for the developmentally disabled

28  licensed under chapter 393, or a community mental health

29  center licensed under chapter 394. A facility relying solely

30  on spiritual means through prayer for healing is not a health

31  care facility;


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    CS for SB 276                           Second Engrossed (ntc)



  1         4.  "Health care practitioner" means a medical doctor

  2  licensed under chapter 458, a doctor of osteopathy licensed

  3  under chapter 459, a doctor of chiropractic medicine licensed

  4  under chapter 460, a doctor of podiatric medicine licensed

  5  under chapter 461, a doctor of dentistry licensed under

  6  chapter 466, or another health care professional regulated by

  7  the Department of Health;

  8         (c)1.  All contract providers must register with the

  9  agency. If the agency determines that a contract provider does

10  not meet the requirements of this section, the registration

11  shall be denied. If a registrant fails to comply with this

12  section, the agency may revoke or suspend the registration.

13         2.  As part of the registration process, the agency may

14  adopt by rule requirements for:

15         a.  Reporting of activity by a contract provider; and

16         b.  A process by which consumers or facilities may

17  register a complaint with the agency alleging a violation of

18  this section.

19         3.  The agency may adopt by rule any necessary fee

20  structure to cover the cost of administering the registration

21  and reporting requirements.

22         (d)1.  If the agency finds that any ground exists for

23  the revocation or suspension of a contract provider's

24  registration, the agency may, in lieu of revocation or

25  suspension, impose a fine upon the contract provider.

26         a.  With respect to any nonwillful violation, the fine

27  may not exceed $1,000 per violation, not to exceed a total of

28  $10,000 for all nonwillful violations arising out of the same

29  action.

30         b.  With respect to any knowing and willful violation,

31  the fine may not exceed $10,000 for each violation, not to


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    CS for SB 276                           Second Engrossed (ntc)



  1  exceed a total of $100,000 for all knowing and willful

  2  violations arising out of the same action.

  3         2.  The agency must adopt by rule penalty categories

  4  that specify varying ranges of monetary fines for willful and

  5  nonwillful violations.

  6         3.  The agency may also refer the contract provider to

  7  the appropriate law enforcement agency for enforcement under

  8  subsection (5).

  9         (3)  A person or agency independent of and not under

10  contract with a the facility may provide placement or referral

11  services for a fee to individuals seeking assistance in

12  finding a suitable facility; however, any fee paid for

13  placement or referral services must be paid by the individual

14  looking for a facility, not by the facility.

15         (4)  The agency shall adopt rules to implement this

16  section.

17         (5)(2)  A violation of this section shall be considered

18  patient brokering and is punishable as provided in s. 817.505.

19         Section 3.  Paragraph (j) is added to subsection (3) of

20  section 817.505, Florida Statutes, to read:

21         817.505  Patient brokering prohibited; exceptions;

22  penalties.--

23         (3)  This section shall not apply to:

24         (j)  Services authorized in s. 400.4195(2).

25         Section 4.  This act shall take effect upon becoming a

26  law.

27

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29

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