Florida Senate - 2010 CS for SB 2138
By the Committee on Health Regulation; and Senator Gardiner
1 A bill to be entitled
2 An act relating to health care; repealing s.
3 112.0455(10)(e), F.S., relating to a prohibition
4 against applying the Drug-Free Workplace Act
5 retroactively; repealing s. 383.325, F.S., relating to
6 the requirement of a licensed facility under s.
7 383.305, F.S., to maintain inspection reports;
8 repealing s. 395.1046, F.S., relating to the
9 investigation of complaints regarding hospitals;
10 repealing s. 395.3037, F.S.; deleting definitions
11 relating to obsolete provisions governing primary and
12 comprehensive stroke centers; amending s. 400.0239,
13 F.S.; deleting an obsolete provision; repealing s.
14 400.147(10), F.S., relating to a requirement that a
15 nursing home facility report any notice of a filing of
16 a claim for a violation of a resident’s rights or a
17 claim of negligence; repealing s. 400.148, F.S.,
18 relating to the Medicaid “Up-or-Out” Quality of Care
19 Contract Management Program; repealing s. 400.195,
20 F.S., relating to reporting requirements for the
21 Agency for Health Care Administration; amending s.
22 400.476, F.S.; providing requirements for an
23 alternative administrator of a home health agency;
24 revising the duties of the administrator; revising the
25 requirements for a director of nursing for a specified
26 number of home health agencies; prohibiting a home
27 health agency from using an individual as a home
28 health aide unless the person has completed training
29 and an evaluation program; requiring a home health
30 aide to meet certain standards in order to be
31 competent in performing certain tasks; requiring a
32 home health agency and staff to comply with accepted
33 professional standards; providing certain requirements
34 for a written contract between certain personnel and
35 the agency; requiring a home health agency to provide
36 certain services through its employees; authorizing a
37 home health agency to provide additional services with
38 another organization; providing responsibilities of a
39 home health agency when it provides home health aide
40 services through another organization; requiring the
41 home health agency to coordinate personnel who provide
42 home health services; requiring personnel to
43 communicate with the home health agency; amending s.
44 400.487, F.S.; requiring a home health agency to
45 provide a copy of the agreement between the agency and
46 a patient which specifies the home health services to
47 be provided; providing the rights that are protected
48 by the home health agency; requiring the home health
49 agency to furnish nursing services by or under the
50 supervision of a registered nurse; requiring the home
51 health agency to provide therapy services through a
52 qualified therapist or therapy assistant; providing
53 the duties and qualifications of a therapist and
54 therapy assistant; requiring supervision by a physical
55 therapist or occupational therapist of a physical
56 therapist assistant or occupational therapist
57 assistant; providing duties of a physical therapist
58 assistant or occupational therapist assistant;
59 providing for speech therapy services to be provided
60 by a qualified speech pathologist or audiologist;
61 providing for a plan of care; providing that only the
62 staff of a home health agency may administer drugs and
63 treatments as ordered by certain health professionals;
64 providing requirements for verbal orders; providing
65 duties of a registered nurse, licensed practical
66 nurse, home health aide, and certified nursing
67 assistant who work for a home health agency; providing
68 for supervisory visits of services provided by a home
69 health agency; repealing s. 408.802(11), F.S.,
70 relating to the applicability of the Health Care
71 Licensing Procedures Act to private review agents;
72 repealing s. 409.912(15)(e), (f), and (g), F.S.,
73 relating to a requirement for the Agency for Health
74 Care Administration to submit a report to the
75 Legislature regarding the operations of the CARE
76 program; repealing s. 429.12(2), F.S., relating to the
77 sale or transfer of ownership of an assisted living
78 facility; repealing s. 429.23(5), F.S., relating to
79 each assisted living facility’s requirement to submit
80 a report to the agency regarding liability claims
81 filed against it; repealing s. 429.911, F.S., relating
82 to grounds for which the agency may take action
83 against the owner of an adult day care center or its
84 operator or employee; providing an effective date.
86 Be It Enacted by the Legislature of the State of Florida:
88 Section 1. Paragraph (e) of subsection (10) of section
89 112.0455, Florida Statutes, is repealed.
90 Section 2. Section 383.325, Florida Statutes, is repealed.
91 Section 3. Section 395.1046, Florida Statutes, is repealed.
92 Section 4. Section 395.3037, Florida Statutes, is repealed.
93 Section 5. Paragraph (g) of subsection (2) of section
94 400.0239, Florida Statutes, is amended to read:
95 400.0239 Quality of Long-Term Care Facility Improvement
96 Trust Fund.—
97 (2) Expenditures from the trust fund shall be allowable for
98 direct support of the following:
99 (g) Other initiatives authorized by the Centers for
100 Medicare and Medicaid Services for the use of federal civil
101 monetary penalties
, including projects recommended through the
102 Medicaid “Up-or-Out” Quality of Care Contract Management Program
103 pursuant to s. 400.148.
104 Section 6. Subsection (10) of section 400.147, Florida
105 Statutes, is repealed.
106 Section 7. Section 400.148, Florida Statutes, is repealed.
107 Section 8. Section 400.195, Florida Statutes, is repealed.
108 Section 9. Section 400.476, Florida Statutes, is amended to
110 400.476 Staffing requirements; notifications; limitations
111 on staffing services.—
112 (1) ADMINISTRATOR.—
113 (a) An administrator may manage only one home health
114 agency, except that an administrator may manage up to five home
115 health agencies if all five home health agencies have identical
116 controlling interests as defined in s. 408.803 and are located
117 within one agency geographic service area or within an
118 immediately contiguous county. If the home health agency is
119 licensed under this chapter and is part of a retirement
120 community that provides multiple levels of care, an employee of
121 the retirement community may administer the home health agency
122 and up to a maximum of four entities licensed under this chapter
123 or chapter 429 which all have identical controlling interests as
124 defined in s. 408.803. An administrator shall designate, in
125 writing, for each licensed entity, a qualified alternate
126 administrator to serve during the administrator’s absence. An
127 alternate administrator must meet the requirements in this
128 paragraph and s. 400.462(1).
129 (b) An administrator of a home health agency who is a
130 licensed physician, physician assistant, or registered nurse
131 licensed to practice in this state may also be the director of
132 nursing for a home health agency. An administrator may serve as
133 a director of nursing for up to the number of entities
134 authorized in subsection (2) only if there are 10 or fewer full
135 time equivalent employees and contracted personnel in each home
136 health agency.
137 (c) The administrator shall organize and direct the
138 agency’s ongoing functions, maintain an ongoing liaison with the
139 board members and the staff, employ qualified personnel and
140 ensure adequate staff education and evaluations, ensure the
141 accuracy of public informational materials and activities,
142 implement an effective budgeting and accounting system, and
143 ensure that the home health agency operates in compliance with
144 this part and part II of chapter 408 and rules adopted for these
146 (d) The administrator shall clearly set forth in writing
147 the organizational chart, services furnished, administrative
148 control, and lines of authority for the delegation of
149 responsibilities for patient care. These responsibilities must
150 be readily identifiable. Administrative and supervisory
151 functions may not be delegated to another agency or
152 organization, and the primary home health agency shall monitor
153 and control all services that are not furnished directly,
154 including services provided through contracts.
155 (2) DIRECTOR OF NURSING.—
156 (a) A director of nursing may be the director of nursing
158 1. Up to two licensed home health agencies if the agencies
159 have identical controlling interests as defined in s. 408.803
160 and are located within one agency geographic service area or
161 within an immediately contiguous county; or
162 2. Up to five licensed home health agencies if:
163 a. All of the home health agencies have identical
164 controlling interests as defined in s. 408.803;
165 b. All of the home health agencies are located within one
166 agency geographic service area or within an immediately
167 contiguous county; and
168 c. Each home health agency has a registered nurse who meets
169 the qualifications of a director of nursing and who has a
170 written delegation from the director of nursing to serve as the
171 director of nursing for that home health agency when the
172 director of nursing is not present; and .
173 d. This person, or similarly qualified alternate, is
174 available at all times during operating hours and participates
175 in all activities relevant to the professional services
176 furnished, including, but not limited to, the oversight of
177 nursing services, home health aides, and certified nursing
178 assistants, and assignment of personnel.
180 If a home health agency licensed under this chapter is part of a
181 retirement community that provides multiple levels of care, an
182 employee of the retirement community may serve as the director
183 of nursing of the home health agency and up to a maximum of four
184 entities, other than home health agencies, licensed under this
185 chapter or chapter 429 which all have identical controlling
186 interests as defined in s. 408.803.
187 (b) A home health agency that provides skilled nursing care
188 may not operate for more than 30 calendar days without a
189 director of nursing. A home health agency that provides skilled
190 nursing care and the director of nursing of a home health agency
191 must notify the agency within 10 business days after termination
192 of the services of the director of nursing for the home health
193 agency. A home health agency that provides skilled nursing care
194 must notify the agency of the identity and qualifications of the
195 new director of nursing within 10 days after the new director is
196 hired. If a home health agency that provides skilled nursing
197 care operates for more than 30 calendar days without a director
198 of nursing, the home health agency commits a class II
199 deficiency. In addition to the fine for a class II deficiency,
200 the agency may issue a moratorium in accordance with s. 408.814
201 or revoke the license. The agency shall fine a home health
202 agency that fails to notify the agency as required in this
203 paragraph $1,000 for the first violation and $2,000 for a repeat
204 violation. The agency may not take administrative action against
205 a home health agency if the director of nursing fails to notify
206 the department upon termination of services as the director of
207 nursing for the home health agency.
208 (c) A home health agency that is not Medicare or Medicaid
209 certified and does not provide skilled care or provides only
210 physical, occupational, or speech therapy is not required to
211 have a director of nursing and is exempt from paragraph (b).
212 (3) TRAINING.—A home health agency shall ensure that each
213 certified nursing assistant employed by or under contract with
214 the home health agency and each home health aide employed by or
215 under contract with the home health agency is adequately trained
216 to perform the tasks of a home health aide in the home setting.
217 (a) The home health agency may not use as a home health
218 aide on a full-time, temporary, per diem, or other basis, any
219 individual to provide services unless the individual has
220 completed a training and competency evaluation program, or a
221 competency evaluation program, as permitted in s. 400.497, which
222 meets the minimum standards established by the agency in state
224 (b) A home health aide is not competent in any task for
225 which he or she is evaluated as “unsatisfactory.” The aide must
226 perform any such task only under direct supervision by a
227 licensed nurse until he or she receives training in the task and
228 satisfactorily passes a subsequent evaluation in performing the
229 task. A home health aide has not successfully passed a
230 competency evaluation if the aide does not have a passing score
231 on the test as specified by agency rule.
232 (4) STAFFING.—Staffing services may be provided anywhere
233 within the state.
234 (5) PERSONNEL.—
235 (a) The home health agency and its staff must comply with
236 accepted professional standards and principles that apply to
237 professionals, including, but not limited to, the state practice
238 acts and the home health agency’s policies and procedures.
239 (b) If personnel under hourly or per-visit contracts are
240 used by the home health agency, there must be a written contract
241 between those personnel and the agency which specifies the
242 following requirements:
243 1. Acceptance for care only of patients by the primary home
244 health agency.
245 2. The services to be furnished.
246 3. The necessity to conform to all applicable agency
247 policies, including personnel qualifications.
248 4. The responsibility for participating in developing plans
249 of care.
250 5. The manner in which services are controlled,
251 coordinated, and evaluated by the primary home health agency.
252 6. The procedures for submitting clinical and progress
253 notes, scheduling of visits, and periodic patient evaluation.
254 7. The procedures for payment for services furnished under
255 the contract.
256 (c) A home health agency shall directly provide at least
257 one of the types of services through home health agency
258 employees, but may provide additional services under
259 arrangements with another agency or organization. Services
260 furnished under such arrangements must have a written contract
261 conforming to the requirements specified in paragraph (b).
262 (d) If home health aide services are provided by an
263 individual who is not employed directly by the home health
264 agency, the services of the home health aide must be provided
265 under arrangements as stated in paragraphs (b) and (c). If the
266 home health agency chooses to provide home health aide services
267 under arrangements with another organization, the
268 responsibilities of the home health agency include, but are not
269 limited to:
270 1. Ensuring the overall quality of the care provided by the
272 2. Supervising the aide’s services as described in s.
273 400.487; and
274 3. Ensuring that each home health aide providing services
275 under arrangements with another organization has met the
276 training requirements or competency evaluation requirements of
277 s. 400.497.
278 (e) The home health agency shall coordinate the efforts of
279 all personnel furnishing services, and the personnel shall
280 maintain communication with the home health agency to ensure
281 that personnel efforts support the objectives outlined in the
282 plan of care. The clinical record or minutes of case conferences
283 shall ensure that effective interchange, reporting, and
284 coordination of patient care occurs.
285 Section 10. Section 400.487, Florida Statutes, is amended
286 to read:
287 400.487 Home health service agreements; physician’s,
288 physician assistant’s, and advanced registered nurse
289 practitioner’s treatment orders; patient assessment;
290 establishment and review of plan of care; provision of services;
291 orders not to resuscitate.—
292 (1) Services provided by a home health agency must be
293 covered by an agreement between the home health agency and the
294 patient or the patient’s legal representative specifying the
295 home health services to be provided, the rates or charges for
296 services paid with private funds, and the sources of payment,
297 which may include Medicare, Medicaid, private insurance,
298 personal funds, or a combination thereof. The home health agency
299 shall provide a copy of the agreement to the patient or the
300 patient’s legal representative. A home health agency providing
301 skilled care must make an assessment of the patient’s needs
302 within 48 hours after the start of services.
303 (2) When required by the provisions of chapter 464; part I,
304 part III, or part V of chapter 468; or chapter 486, the
305 attending physician, physician assistant, or advanced registered
306 nurse practitioner, acting within his or her respective scope of
307 practice, shall establish treatment orders for a patient who is
308 to receive skilled care. The treatment orders must be signed by
309 the physician, physician assistant, or advanced registered nurse
310 practitioner before a claim for payment for the skilled services
311 is submitted by the home health agency. If the claim is
312 submitted to a managed care organization, the treatment orders
313 must be signed within the time allowed under the provider
314 agreement. The treatment orders shall be reviewed, as frequently
315 as the patient’s illness requires, by the physician, physician
316 assistant, or advanced registered nurse practitioner in
317 consultation with the home health agency.
318 (3) A home health agency shall arrange for supervisory
319 visits by a registered nurse to the home of a patient receiving
320 home health aide services as specified in subsection (9) in
321 accordance with the patient’s direction, approval, and agreement
322 to pay the charge for the visits.
323 (4) The home health agency shall protect and promote the
324 rights of each individual under its care, including each of the
325 following rights:
326 (a) Notice of rights.—The home health agency shall provide
327 the patient with a written notice of the patient’s rights in
328 advance of furnishing care to the patient or during the initial
329 evaluation visit before the initiation of treatment. The home
330 health agency must maintain documentation showing that it has
331 complied with the requirements of this section.
332 (b) Exercise of rights and respect for property and
334 1. The patient has the right to exercise his or her rights
335 as a patient of the home health agency.
336 2. The patient has the right to have his or her property
337 treated with respect.
338 3. The patient has the right to voice grievances regarding
339 treatment or care that is or fails to be furnished, or regarding
340 the lack of respect for property by anyone who is furnishing
341 services on behalf of the home health agency, and not be
342 subjected to discrimination or reprisal for doing so.
343 4. The home health agency must investigate complaints made
344 by a patient or the patient’s family or guardian regarding
345 treatment or care that is or fails to be furnished, or regarding
346 the lack of respect for the patient’s property by anyone
347 furnishing services on behalf of the home health agency. The
348 home health agency shall document the existence of the complaint
349 and its resolution.
350 5. The patient and his or her immediate family or
351 representative must be informed of the right to report
352 complaints via the statewide toll-free telephone number to the
353 agency as required in s. 408.810.
354 (c) Right to be informed and to participate in planning
355 care and treatment.—
356 1. The patient has the right to be informed, in advance,
357 about the care to be furnished and of any changes in the care to
358 be furnished. The home health agency shall advise the patient in
359 advance of which disciplines will furnish care and the frequency
360 of visits proposed to be furnished. The home health agency must
361 advise the patient in advance of any change in the plan of care
362 before the change is made.
363 2. The patient has the right to participate in the planning
364 of the care. The home health agency must advise the patient in
365 advance of the right to participate in planning the care or
366 treatment and in planning changes in the care or treatment. Each
367 patient has the right to be informed of and to participate in
368 the planning of his or her care. Each patient must be provided,
369 upon request, a copy of the plan of care established and
370 maintained for that patient by the home health agency.
371 (5) When nursing services are ordered, the home health
372 agency to which a patient has been admitted for care must
373 provide the initial admission visit, all service evaluation
374 visits, and the discharge visit by a direct employee. Services
375 provided by others under contractual arrangements to a home
376 health agency must be monitored and managed by the admitting
377 home health agency. The admitting home health agency is fully
378 responsible for ensuring that all care provided through its
379 employees or contract staff is delivered in accordance with this
380 part and applicable rules.
381 (6) The skilled care services provided by a home health
382 agency, directly or under contract, must be supervised and
383 coordinated in accordance with the plan of care. The home health
384 agency shall furnish skilled nursing services by or under the
385 supervision of a registered nurse and in accordance with the
386 plan of care. Any therapy services offered directly or under
387 arrangement by the home health agency must be provided by a
388 qualified therapist or by a qualified therapy assistant under
389 the supervision of a qualified therapist and in accordance with
390 the plan of care.
391 (a) Duties and qualifications.—A qualified therapist shall
392 assist the physician in evaluating the level of function, help
393 develop or revise the plan of care, prepare clinical and
394 progress notes, advise and consult with the family and other
395 agency personnel, and participate in in-service programs. The
396 therapist or therapy assistant must meet the qualifications in
397 the state practice acts and related applicable rules.
398 (b) Physical therapy assistants and occupational therapy
399 assistants.—Services provided by a physical therapy assistant or
400 occupational therapy assistant must be under the supervision of
401 a qualified physical therapist or occupational therapist as
402 required in chapter 486 and part III of chapter 468,
403 respectively, and related applicable rules. A physical therapy
404 assistant or occupational therapy assistant shall perform
405 services planned, delegated, and supervised by the therapist,
406 assist in preparing clinical notes and progress reports,
407 participate in educating the patient and his or her family, and
408 participate in in-service programs.
409 (c) Speech therapy services.—Speech therapy services shall
410 be furnished only by or under supervision of a qualified speech
411 pathologist or audiologist as required in part I of chapter 468
412 and related applicable rules.
413 (d) Care follows a written plan of care.—The plan of care
414 shall be reviewed by the physician or health professional who
415 provided the treatment orders pursuant to subsection (2) and
416 home health agency personnel as often as the severity of the
417 patient’s condition requires, but at least once every 60 days or
418 more when there is a patient-elected transfer, a significant
419 change in condition, or a discharge and return to the same home
420 health agency during the 60-day episode. Professional staff of a
421 home health agency shall promptly alert the physician or other
422 health professional who provided the treatment orders of any
423 change that suggests a need to alter the plan of care.
424 (e) Administration of drugs and treatment.—Only
425 professional staff of a home health agency may administer drugs
426 and treatments as ordered by the physician or health
427 professional pursuant to subsection (2), with the exception of
428 influenza and pneumococcal polysaccharide vaccines, which may be
429 administered according to the policy of the home health agency
430 developed in consultation with a physician and after an
431 assessment for contraindications. Verbal orders shall be in
432 writing and signed and dated with the date of receipt by the
433 registered nurse or qualified therapist who is responsible for
434 furnishing or supervising the ordered service. A verbal order
435 may be accepted only by personnel who are authorized to do so by
436 applicable state laws, rules, and internal policies of the home
437 health agency.
438 (7) A registered nurse shall conduct the initial evaluation
439 visit, regularly reevaluate the patient’s nursing needs,
440 initiate the plan of care and necessary revisions, furnish those
441 services requiring substantial and specialized nursing skill,
442 initiate appropriate preventive and rehabilitative nursing
443 procedures, prepare clinical and progress notes, coordinate
444 services, inform the physician and other personnel of changes in
445 the patient’s condition and needs, counsel the patient and his
446 or her family in meeting nursing and related needs, participate
447 in in-service programs, and supervise and teach other nursing
449 (8) A licensed practical nurse shall furnish services in
450 accordance with agency policies, prepare clinical and progress
451 notes, assist the physician and registered nurse in performing
452 specialized procedures, prepare equipment and materials for
453 treatments observing aseptic technique as required, and assist
454 the patient in learning appropriate self-care techniques.
455 (9) A home health aide and certified nursing assistant
456 shall provide services that are ordered by the physician in the
457 plan of care and that the aide or assistant is permitted to
458 perform under state law. The duties of a home health aide or
459 certified nursing assistant include the provision of hands-on
460 personal care, performance of simple procedures as an extension
461 of therapy or nursing services, assistance in ambulation or
462 exercises, and assistance in administering medications that are
463 ordinarily self-administered and are specified in agency rules.
464 Any services by a home health aide which are offered by a home
465 health agency must be provided by a qualified home health aide
466 or certified nursing assistant.
467 (a) Assignment and duties.—A home health aide or certified
468 nursing assistant shall be assigned to a specific patient by a
469 registered nurse. Written patient care instructions for the home
470 health aide and certified nursing assistant must be prepared by
471 the registered nurse or other appropriate professional who is
472 responsible for the supervision of the home health aide and
473 certified nursing assistant as stated in this section.
474 (b) Supervision.—If a patient receives skilled nursing
475 care, the registered nurse shall perform the supervisory visit.
476 If the patient is not receiving skilled nursing care but is
477 receiving physical therapy, occupational therapy, or speech
478 language pathology services, the appropriate therapist may
479 provide the supervision. A registered nurse or other
480 professional must make an onsite visit to the patient’s home at
481 least once every 2 weeks. The visit is not required while the
482 aide is providing care.
483 (c) Supervising visits.—If home health aide services are
484 provided to a patient who is not receiving skilled nursing care,
485 physical or occupational therapy, or speech-language pathology
486 services, a registered nurse must make a supervisory visit to
487 the patient’s home at least once every 60 days, unless the home
488 health agency providing the home health aide services is not
489 Medicare or Medicaid certified and does not provide skilled
490 care, either directly or through contracts. The registered nurse
491 shall ensure that the aide is properly caring for the patient
492 and each supervisory visit must occur while the home health aide
493 is providing patient care. In addition to the requirements in
494 this subsection, a home health agency shall arrange for
495 additional supervisory visits by a registered nurse to the home
496 of a patient receiving home health aide services in accordance
497 with the patient’s direction, approval, and agreement to pay the
498 charge for the visits.
499 (10) (7) Home health agency personnel may withhold or
500 withdraw cardiopulmonary resuscitation if presented with an
501 order not to resuscitate executed pursuant to s. 401.45. The
502 agency shall adopt rules providing for the implementation of
503 such orders. Home health personnel and agencies shall not be
504 subject to criminal prosecution or civil liability, nor be
505 considered to have engaged in negligent or unprofessional
506 conduct, for withholding or withdrawing cardiopulmonary
507 resuscitation pursuant to such an order and rules adopted by the
509 Section 11. Subsection (11) of section 408.802, Florida
510 Statutes, is repealed.
511 Section 12. Paragraphs (e), (f), and (g) of subsection (15)
512 of section 409.912, Florida Statutes, are repealed.
513 Section 13. Subsection (2) of section 429.12, Florida
514 Statutes, is repealed.
515 Section 14. Subsection (5) of section 429.23, Florida
516 Statutes, is repealed.
517 Section 15. Section 429.911(2)(b), Florida Statutes, is
519 Section 16. This act shall take effect July 1, 2010.