June 19, 2019
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       Florida Senate - 2010                                    SB 1102
       
       
       
       By Senator Fasano
       
       
       
       
       11-00635D-10                                          20101102__
    1                        A bill to be entitled                      
    2         An act relating to residents of assisted living
    3         facilities; amending s. 429.07, F.S.; conforming
    4         provisions to changes made by the act; amending s.
    5         429.28, F.S.; revising provisions relating to a
    6         resident’s right to receive notice before being
    7         relocated or terminated from a facility; providing
    8         that a document that waives such right is void;
    9         requiring a facility’s grievance procedure to be in
   10         writing; creating s. 429.285, F.S.; providing the
   11         grounds and notice requirements for relocating or
   12         terminating a resident from a facility; authorizing
   13         the Department of Elderly Affairs to adopt rules;
   14         amending s. 429.31, F.S.; conforming provisions to
   15         changes made by the act; providing an effective date.
   16  
   17  Be It Enacted by the Legislature of the State of Florida:
   18  
   19         Section 1. Paragraphs (b) and (c) of subsection (3) of
   20  section 429.07, Florida Statutes, are amended to read:
   21         429.07 License required; fee.—
   22         (3) In addition to the requirements of s. 408.806, each
   23  license granted by the agency must state the type of care for
   24  which the license is granted. Licenses shall be issued for one
   25  or more of the following categories of care: standard, extended
   26  congregate care, limited nursing services, or limited mental
   27  health.
   28         (b) An extended congregate care license shall be issued to
   29  facilities providing, directly or through contract, services
   30  beyond those authorized in paragraph (a), including services
   31  performed by persons licensed under acts performed pursuant to
   32  part I of chapter 464 by persons licensed thereunder, and
   33  supportive services, as defined by rule, to persons who would
   34  otherwise would be disqualified from continued residence in a
   35  facility licensed under this part.
   36         1. In order for extended congregate care services to be
   37  provided in a facility licensed under this part, the agency must
   38  first determine that all requirements established in law and
   39  rule are met and must specifically designate, on the facility’s
   40  license, that such services may be provided and whether the
   41  designation applies to all or part of a facility. Such
   42  designation may be made at the time of initial licensure or
   43  relicensure, or upon request in writing by a licensee under this
   44  part and part II of chapter 408. Notification of approval or
   45  denial of the such request shall be made in accordance with part
   46  II of chapter 408. Existing facilities qualifying to provide
   47  extended congregate care services must have maintained a
   48  standard license and may not have been subject to administrative
   49  sanctions during the previous 2 years, or since initial
   50  licensure if the facility has been licensed for less than 2
   51  years, for any of the following reasons:
   52         a. A class I or class II violation;
   53         b. Three or more repeat or recurring class III violations
   54  of identical or similar resident care standards as specified in
   55  rule from which a pattern of noncompliance is found by the
   56  agency;
   57         c. Three or more class III violations that were not
   58  corrected in accordance with the corrective action plan approved
   59  by the agency;
   60         d. Violation of resident care standards resulting in a
   61  requirement to employ the services of a consultant pharmacist or
   62  consultant dietitian;
   63         e. Denial, suspension, or revocation of a license for
   64  another facility under this part in which the applicant for an
   65  extended congregate care license has at least 25 percent
   66  ownership interest; or
   67         f. Imposition of a moratorium pursuant to this part or part
   68  II of chapter 408 or initiation of injunctive proceedings.
   69         2. Facilities that are licensed to provide extended
   70  congregate care services shall maintain a written progress
   71  report on each person who receives such services, which report
   72  describes the type, amount, duration, scope, and outcome of
   73  services that are rendered and the general status of the
   74  resident’s health. A registered nurse, or appropriate designee,
   75  representing the agency shall visit such facilities at least
   76  quarterly to monitor residents who are receiving extended
   77  congregate care services and to determine if the facility is in
   78  compliance with this part, part II of chapter 408, and rules
   79  that relate to extended congregate care. One of these visits may
   80  be in conjunction with the regular survey. The monitoring visits
   81  may be provided through contractual arrangements with
   82  appropriate community agencies. A registered nurse shall serve
   83  as part of the team that inspects the such facility. The agency
   84  may waive one of the required yearly monitoring visits for a
   85  facility that has been licensed for at least 24 months to
   86  provide extended congregate care services, if, during the
   87  inspection, the registered nurse determines that extended
   88  congregate care services are being provided appropriately, and
   89  if the facility has no class I or class II violations and no
   90  uncorrected class III violations. Before such decision is made,
   91  the agency shall consult with the long-term care ombudsman
   92  council for the area in which the facility is located to
   93  determine if any complaints have been made and substantiated
   94  about the quality of services or care. The agency may not waive
   95  one of the required yearly monitoring visits if complaints have
   96  been made and substantiated.
   97         3. Facilities that are licensed to provide extended
   98  congregate care services shall:
   99         a. Demonstrate the capability to meet unanticipated
  100  resident service needs.
  101         b. Offer a physical environment that promotes a homelike
  102  setting, provides for resident privacy, promotes resident
  103  independence, and allows sufficient congregate space as defined
  104  by rule.
  105         c. Have sufficient staff available, taking into account the
  106  physical plant and firesafety features of the building, to
  107  assist with the evacuation of residents in an emergency, as
  108  necessary.
  109         d. Adopt and follow policies and procedures that maximize
  110  resident independence, dignity, choice, and decisionmaking to
  111  permit residents to age in place to the extent possible, so that
  112  moves due to changes in functional status are minimized or
  113  avoided.
  114         e. Allow residents or, if applicable, a resident’s
  115  representative, designee, surrogate, guardian, or attorney in
  116  fact to make a variety of personal choices, participate in
  117  developing service plans, and share responsibility in
  118  decisionmaking.
  119         f. Implement the concept of managed risk.
  120         g. Provide, either directly or through contract, the
  121  services of a person licensed pursuant to part I of chapter 464.
  122         h. In addition to the training mandated in s. 429.52,
  123  provide specialized training as defined by rule for facility
  124  staff.
  125         4. Facilities licensed to provide extended congregate care
  126  services are exempt from the criteria for continued residency as
  127  set forth in rules adopted under s. 429.41. Facilities so
  128  licensed shall adopt their own requirements within guidelines
  129  for continued residency set forth by rule. However, such
  130  facilities may not serve residents who require 24-hour nursing
  131  supervision. Facilities licensed to provide extended congregate
  132  care services shall provide each resident with a written copy of
  133  facility policies governing admission and retention.
  134         5. The primary purpose of extended congregate care services
  135  is to allow residents, as they become more impaired, the option
  136  of remaining in a familiar setting from which they would
  137  otherwise be disqualified for continued residency. A facility
  138  licensed to provide extended congregate care services may also
  139  admit an individual who exceeds the admission criteria for a
  140  facility with a standard license, if the individual is
  141  determined appropriate for admission to the extended congregate
  142  care facility.
  143         6. Before admission of an individual to a facility licensed
  144  to provide extended congregate care services, the individual
  145  must undergo a medical examination as provided in s. 429.26(4)
  146  and the facility must develop a preliminary service plan for the
  147  individual.
  148         7. If When a facility can no longer provide or arrange for
  149  services in accordance with the resident’s service plan and
  150  needs and the facility’s policy, the facility shall make
  151  arrangements for relocating the person in accordance with s.
  152  429.285 s. 429.28(1)(k).
  153         8. Failure to provide extended congregate care services may
  154  result in denial of extended congregate care license renewal.
  155         9. By No later than January 1 of each year, the department,
  156  in consultation with the agency, shall prepare and submit to the
  157  Governor, the President of the Senate, the Speaker of the House
  158  of Representatives, and the chairs of appropriate legislative
  159  committees, a report on the status of, and recommendations
  160  related to, extended congregate care services. The status report
  161  must include, but need not be limited to, the following
  162  information:
  163         a. A description of the facilities licensed to provide such
  164  services, including total number of beds licensed under this
  165  part.
  166         b. The number and characteristics of residents receiving
  167  such services.
  168         c. The types of services rendered that could not be
  169  provided through a standard license.
  170         d. An analysis of deficiencies cited during licensure
  171  inspections.
  172         e. The number of residents who required extended congregate
  173  care services at admission and the source of admission.
  174         f. Recommendations for statutory or regulatory changes.
  175         g. The availability of extended congregate care to state
  176  clients residing in facilities licensed under this part and in
  177  need of additional services, and recommendations for
  178  appropriations to subsidize extended congregate care services
  179  for such persons.
  180         h. Such other information as the department considers
  181  appropriate.
  182         (c) A limited nursing services license shall be issued to a
  183  facility that provides services beyond those authorized in
  184  paragraph (a) and as specified in this paragraph.
  185         1. In order for limited nursing services to be provided in
  186  a facility licensed under this part, the agency must first
  187  determine that all requirements established in law and rule are
  188  met and must specifically designate, on the facility’s license,
  189  that such services may be provided. Such designation may be made
  190  at the time of initial licensure or relicensure, or upon request
  191  in writing by a licensee under this part and part II of chapter
  192  408. Notification of approval or denial of such request shall be
  193  made in accordance with part II of chapter 408. Existing
  194  facilities qualifying to provide limited nursing services shall
  195  have maintained a standard license and may not have been subject
  196  to administrative sanctions that affect the health, safety, and
  197  welfare of residents for the previous 2 years or since initial
  198  licensure if the facility has been licensed for less than 2
  199  years.
  200         2. Facilities that are licensed to provide limited nursing
  201  services shall maintain a written progress report on each person
  202  who receives such nursing services, which report describes the
  203  type, amount, duration, scope, and outcome of services that are
  204  rendered and the general status of the resident’s health. A
  205  registered nurse representing the agency shall visit such
  206  facilities at least twice a year to monitor residents who are
  207  receiving limited nursing services and to determine if the
  208  facility is in compliance with applicable provisions of this
  209  part, part II of chapter 408, and related rules. The monitoring
  210  visits may be provided through contractual arrangements with
  211  appropriate community agencies. A registered nurse shall also
  212  serve as part of the team that inspects the such facility.
  213         3. A person who receives limited nursing services under
  214  this part must meet the admission criteria established by the
  215  agency for assisted living facilities. If When a resident no
  216  longer meets the admission criteria for a facility licensed
  217  under this part, arrangements for relocating the person shall be
  218  made in accordance with s. 429.285 s. 429.28(1)(k), unless the
  219  facility is also licensed to provide extended congregate care
  220  services.
  221         Section 2. Paragraphs (k) and (l) of subsection (1) of
  222  section 429.28, Florida Statutes, are amended to read:
  223         429.28 Resident bill of rights.—
  224         (1) No resident of a facility shall be deprived of any
  225  civil or legal rights, benefits, or privileges guaranteed by
  226  law, the Constitution of the State of Florida, or the
  227  Constitution of the United States as a resident of a facility.
  228  Every resident of a facility shall have the right to:
  229         (k) Receive notice, as provided in s. 429.285, before at
  230  least 45 days’ notice of relocation or termination of residency
  231  from the facility unless, for medical reasons, the resident is
  232  certified by a physician to require an emergency relocation to a
  233  facility providing a more skilled level of care or the resident
  234  engages in a pattern of conduct that is harmful or offensive to
  235  other residents. Such notice is not required if the relocation
  236  or termination of residency is initiated by the resident or the
  237  resident’s designee. Admission to a facility may not be
  238  conditioned upon a waiver of this right, and any provision in a
  239  document which purports to waive or preclude such right is void
  240  and unenforceable. In the case of a resident who has been
  241  adjudicated mentally incapacitated, the guardian shall be given
  242  at least 45 days’ notice of a nonemergency relocation or
  243  residency termination. Reasons for relocation shall be set forth
  244  in writing. In order for a facility to terminate the residency
  245  of an individual without notice as provided herein, the facility
  246  shall show good cause in a court of competent jurisdiction.
  247         (l) Present grievances and recommend changes in policies,
  248  procedures, and services to the staff of the facility, governing
  249  officials, or any other person without restraint, interference,
  250  coercion, discrimination, or reprisal. Each facility shall
  251  establish a written grievance procedure to facilitate the
  252  residents’ exercise of this right. This right includes access to
  253  ombudsman volunteers and advocates and the right to be a member
  254  of, to be active in, and to associate with advocacy or special
  255  interest groups.
  256         Section 3. Section 429.285, Florida Statutes, is created to
  257  read:
  258         429.285Relocation or termination of residency.—
  259         (1) A resident may not be relocated or terminated from a
  260  facility unless:
  261         (a) The resident’s needs cannot be met in the facility and
  262  the relocation or termination is necessary for the resident’s
  263  welfare;
  264         (b) The resident no longer needs the services provided by
  265  the facility;
  266         (c) The health and safety of other residents or facility
  267  staff are endangered;
  268         (d) There is a documented pattern of harmful or offensive
  269  behavior by the resident;
  270         (e) The resident has failed, after at least 30 days’
  271  notice, to provide payment for his or her stay in the facility;
  272  or
  273         (f) The facility ceases to operate.
  274         (2) The department shall develop a standard form to be used
  275  by a facility to provide written notice to a resident of a
  276  proposed relocation or termination of residency. At a minimum,
  277  the notice must specify:
  278         (a) The grounds authorized under subsection (1) for
  279  relocation or termination of residency and the specific facts
  280  relating to the resident which support those grounds.
  281         (b) The effective date of the proposed relocation or
  282  termination and the name and address of the location to which
  283  the resident would be relocated.
  284         (c) The right and procedure for requesting the local long
  285  term care ombudsman council to review the proposed relocation or
  286  termination.
  287         (d) All information required by state laws and rules.
  288         (e) Any other pertinent information.
  289         (3) At least 45 days before the relocation or termination
  290  of the resident, the facility must provide by certified mail
  291  written notice of the proposed relocation or termination to the
  292  resident’s legal guardian or representative, if known. If the
  293  resident has been adjudicated mentally incapacitated, the notice
  294  must be provided to the resident’s legal guardian.
  295         (4) If the relocation or termination of a resident is
  296  initiated by the facility, the administrator or designee must
  297  sign the written notice of relocation or termination. A copy of
  298  the notice must also be signed by the resident and placed in the
  299  resident’s file. If the relocation or termination is for medical
  300  reasons, the notice must be signed by the resident’s physician,
  301  or the physician’s written order for relocation or termination
  302  must be attached to the notice.
  303         (5) A copy of a notice of relocation or termination of
  304  residency initiated by a facility must be submitted to the
  305  Office of State Long-Term Care Ombudsman by mail, electronic
  306  mail, or facsimile within 2 business days after a resident’s
  307  receipt of the notice to relocate or terminate residency. A
  308  resident may request a review of the proposed relocation or
  309  termination by the local long-term care ombudsman council.
  310         (6) In the event of an emergency relocation or termination
  311  of residency for medical reasons, as certified by a physician,
  312  or due to harmful or offensive conduct by the resident, notice
  313  must be provided to the resident’s legal guardian or
  314  representative, if known, and the Office of the State Long-Term
  315  Ombudsman, by telephone or in person as soon as practicable, but
  316  within 2 business days after the emergency relocation or
  317  termination. The resident’s file must include documentation
  318  indicating who was contacted, whether the contact was by
  319  telephone or in person, and the date and time of the contact.
  320  The written notice described in subsection (2) shall be given
  321  before the relocation or termination of residency if possible,
  322  but within 5 business days after the emergency relocation or
  323  termination.
  324         (7) A facility that terminates the residency of an
  325  individual without providing written notice as required under
  326  this section must be able to show good cause in a court of
  327  competent jurisdiction.
  328         (8) The department may adopt rules to administer this
  329  section.
  330         Section 4. Subsection (1) of section 429.31, Florida
  331  Statutes, is amended to read:
  332         429.31 Closing of facility; notice; penalty.—
  333         (1) In addition to the requirements of part II of chapter
  334  408, the facility shall inform each resident or the next of kin,
  335  legal representative, or agency acting on the each resident’s
  336  behalf, of the fact and the proposed time of discontinuance of
  337  operation in accordance with s. 429.285, following the
  338  notification requirements provided in s. 429.28(1)(k). If In the
  339  event a resident does not have anyone has no person to represent
  340  him or her, the facility shall refer the resident be responsible
  341  for referral to an appropriate social service agency for
  342  placement.
  343         Section 5. This act shall take effect July 1, 2010.

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