This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0987b.CFS
DATE: 2/2/2022
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 987 In-person Visitation by Essential Caregivers
SPONSOR(S): Finance & Facilities Subcommittee, Shoaf
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Finance & Facilities Subcommittee 17 Y, 0 N, As CS Guzzo Lloyd
2) Children, Families & Seniors Subcommittee Guzzo Brazzell
3) Health & Human Services Committee
SUMMARY ANALYSIS
Due to the COVID-19 pandemic, from March 2020, to March 2021, residents of 11 different facility types in
Florida were not allowed to receive visitors. The effects of social isolation and loneliness are known to be very
harmful to older adults. According to the Centers for Disease Control and Prevention, social isolation
significantly increases the risk of premature death from all causes.
To protect Florida’s most vulnerable residents from the effects of social isolation, the bill allows a resident of an
intermediate care facility for the developmentally disabled (ICFDD), nursing home, or assisted living facility
(ALF), or his or her guardian or legal representative, to designate an essential caregiver. The bill prohibits a
facility from refusing visitation by the essential caregiver. An essential caregiver can be a family member,
friend, guardian, or other individual.
The bill requires AHCA and APD to develop guidelines to assist facilities in establishing essential caregiver
visitation policies and procedures, which must require facilities to:
Allow a resident or client, or his or her guardian or legal representative, to designate an essential
caregiver for in-person visitation in the same manner that they would designate a power of attorney;
Establish a visitation schedule allowing the essential caregiver to visit the resident or client for at least 2
hours every day;
Establish procedures to enable physical contact between the resident or client and essential caregivers;
Establish a visitor’s log; and
Obtain the signature of the essential caregiver certifying that the caregiver agrees to follow the facility’s
safety protocols.
The bill allows a facility to revoke an individual’s designation as an essential caregiver if the person violates the
facility’s safety protocols, which cannot be more stringent than those established for the staff of the facility.
The bill also allows a facility to suspend all essential caregiver visitation rights one time only for up to seven
days if in-person visitation poses a serious health risk to the residents of the facility. The bill requires facilities
to allow visitation by essential caregivers during a suspension on visitation under certain circumstances on a
case by case basis.
The bill requires APD and AHCA to publish a web page explaining essential caregiver visitation rights.
The bill has no fiscal impact on state or local government.
The bill provides an effective date of July 1, 2022. STORAGE NAME: h0987b.CFS PAGE: 2
DATE: 2/2/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
The COVID-19 Pandemic
The novel human coronavirus disease 2019 (COVID-19) was first reported in Wuhan, China, in
December of 2019, when dozens of cases of pneumonia of unknown etiology were first reported. By
early January, 2020, Chinese authorities identified a novel coronavirus as the cause of the outbreak.
Shortly thereafter, the first cases of COVID-19—officially named by the World Health Organization
(WHO) on February 11, 2020—were detected in Japan and Thailand. On January 20, 2020, the U.S.
Centers for Disease Control and Prevention confirmed the first case of COVID-19 in the United States
appearing in Washington State. On January 31, 2020, the U.S. Secretary of Health and Human
services declared COVID19 a public health emergency and on March 11, 2020, the WHO declared
COVID-19 a pandemic.
1
On March 1, 2020, Florida’s Surgeon General declared a public health emergency.
2
On March 9, 2020,
the Governor issued an executive order to declare a state of emergency and delegate certain powers to
the Director of the Division of Emergency Management (DEM), including the ability to restrict visitation
in certain health care and long-term care facilities.
3
Visitation Restrictions During COVID-19
On March 15, 2020, DEM issued an emergency order to require certain facilities to prohibit the entry of
any individual except in specified circumstances.
4
The emergency order applied to the following facility
types:
Nursing homes;
Assisted living facilities;
Intermediate care facilities for the developmentally disabled;
Transitional living facilities;
Adult mental health and treatment facilities;
Adult forensic facilities;
Civil facilities;
Adult family care homes;
Group homes;
Homes for special services; and
Long-term care hospitals.
5
The emergency order authorized the following individuals to enter a facility:
1
Centers for Disease Control and Prevention, COVID-19 Timeline, David J. Spencer CDC Museum: In Association With the
Smithsonian Institution, available at https://www.cdc.gov/museum/timeline/covid19.html (last accessed January 24, 2022).
2
Florida Department of Health Declaration of Public Health Emergency, March 1, 2020, available at
https://floridahealthcovid19.gov/wp-content/uploads/2020/03/declaration-of-public-health-emergency-covid-19-3.1.20.pdf (last accessed
January 24, 2022).
3
State of Florida, Office of the Governor, Executive Order Number 20-52, Emergency Management – COVID-19 Public Health
Emergency (March 9, 2020), available at https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-52.pdf (last accessed January
24, 2022).
4
State of Florida, Division of Emergency Management, Emergency Order Number 20-006 (March 15, 2020) available at
https://www.floridadisaster.org/globalassets/executive-orders/covid-19/dem-order-no.-20-006-in-re-covid-19-public-health-emergency-
issued-march-15-2020.pdf (last accessed January 24, 2022).
5
Id. STORAGE NAME: h0987b.CFS PAGE: 3
DATE: 2/2/2022
Facility residents;
Facility staff;
Family members and friends during end of life situations;
Hospice or palliative care workers caring for residents in end-of-life situations;
Any individual providing necessary health care to a resident;
Attorneys of records for residents in adult mental health facilities for court related matters if
virtual or telephone means are unavailable; and
Representatives of the state and federal government seeking entry as part of their official
duties, including, but not limited to, the Long-Term Care Ombudsman program,
representatives of the Department of Children and Families, the Department of Health, the
Department of Elderly Affairs, the Agency for Health Care Administration, the Agency for
Persons with Disabilities (APD), protection and advocacy organizations for individuals with
developmental disabilities, the Office of the Attorney General, any law enforcement officer, and
any emergency medical personnel.
6
Further, the emergency order prohibited any of the above individuals from entering a facility if they
failed to meet certain screening criteria, including:
Being infected with COVID-19 without having two consecutive negative test results separated
by 24 hours;
Showing signs or symptoms of, or disclosing the presence of a respiratory infection, including
cough, fever, shortness of breath or sore throat;
Being in contact with any person known to be infected with COVID-19, who has not tested
negative within the past 14 days.
7
The emergency order was extended on May 18, 2020.
8
On September 1, 2020, DEM extended the
order again and modified it to allow visitation by essential caregivers
9
and compassionate care
visitors
10
under certain circumstances.
11
On October 22, 2020, DEM extended the order for a second
time and modified it to allow general visitors under certain circumstances.
12
Finally, on March 22,
2021, DEM rescinded the previous executive orders that prohibited visitation and instead required all
affected facilities to maintain visitation and infection control policies in accordance with all state and
federal laws.
13
Post-COVID-19 Visitation Reform in Other States
The visitation restrictions imposed on different types of long-term care facilities across the nation,
while necessary for the overall wellbeing of those residents, still had negative effects on the residents
and their families. A recent study concluded that when implementing visiting restrictions in health care
6
Id.
7
Id.
8
State of Florida, Division of Emergency Management, Emergency Order Number 20-007 (May 18, 2020), available at
https://www.floridadisaster.org/globalassets/executive-orders/covid-19/dem-order-no.-20-007-in-re-covif-19-public-health-emergency-
issued-may-18-2020.pdf (last accessed January 24, 2022).
9
Essential caregivers are those who have been given consent by the resident or his or her representative to provide services and/or
assistance with activities of daily living to help maintain or improve the quality of care or quality of life for a facility resident. Essential
caregivers include persons who provided services before the pandemic and those who request to provide services.
10
Compassionate care visitors provide emotional support to help a resident deal with a difficult transition or loss, upsetting event, or
end-of-life. Compassionate care visitors may be allowed entry into facilities on a limited basis for these specific purposes.
11
State of Florida, Division of Emergency Management, Emergency Order Number 20-009 (September 1, 2020), available at
https://www.floridadisaster.org/globalassets/covid19/dem-order-20-009-signed.pdf (last accessed January 24, 2022).
12
State of Florida, Division of Emergency Management, Emergency Order Number 20-011 (October 22, 2020), available at
https://www.floridadisaster.org/globalassets/executive-orders/covid-19/dem-order-no.-20-011-in-re-covid-19-public-health-emergency-
issued-october-22-2020.pdf (last accessed January 24, 2022).
13
State of Florida, Division of Emergency Management, Emergency Order Number 21-001 (March 22, 2021), available at
https://ahca.myflorida.com/docs/DEM_Emergency_Order_21-001.pdf (last accessed January 24, 2022). STORAGE NAME: h0987b.CFS PAGE: 4
DATE: 2/2/2022
services, decision makers and nurses need to be aware of their potential negative effects and adapt
the provision of care to compensate for such effects.
14
Several states have recently passed legislation to find a common ground between protecting
residents of long-term care facilities and over-protecting them.
Alabama
Requires health care facilities, including nursing homes, to allow at least one caregiver or visitor to
visit each patient or resident during a public health emergency.
15
Connecticut,
16
Indiana,
17
North Dakota,
18
Oklahoma,
19
and Texas
20
Allow long-term care facility residents to designate essential support persons who may visit and
support their physical, emotional, psychological, and socialization needs.
New Jersey
Requires each long-term care facility to adopt and institute a written isolation prevention plan and
have appropriate technology, staff, and other capabilities in place to prevent the facility’s resident
from becoming isolated during public emergencies.
21
South Dakota
Allows residents of an ALF to receive visitors of their choosing, at the time of their choosing, provided
the visitation does not impose upon the rights of another resident.
22
Intermediate Care Facilities for the Developmentally Disabled
An intermediate care facility for the developmentally disabled (ICFDD) provides institutional care for
individuals with developmental disabilities. A developmental disability is a disorder or syndrome that
is attributable to intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan-
McDermid syndrome, or Prader-Willi syndrome; that manifests before the age of 18; and that
constitutes a substantial handicap that can reasonably be expected to continue indefinitely.
23
ICFDDs are licensed and regulated by the Agency for Health Care Administration (AHCA) under Part
VIII of ch. 400, F.S., and Chapter 59A-26, F.A.C. ICFDDs provide the following services: nursing
services, activity services, dental services, dietary services, pharmacy services, physician services,
rehabilitative care services, room/bed and maintenance services and social services.
24
ICFDD
services are only covered by the Medicaid program. Individuals who have a developmental disability
and who meet Medicaid eligibility requirements may receive services in an ICFDD.
There are also two public ICF/DDs known as developmental disabilities centers that are operated by
APD — Sunland in Marianna, and Tacachale in Gainesville.
14
Karen Hugelius, Nahoko Harada, Miki Marutani, Consequences of Visiting Restrictions During the COVID-19 Pandemic: An
Integrative Review, International Journal of Nursing Studies, vol. 121 (September 2021), available at
https://www.sciencedirect.com/science/article/pii/S0020748921001474 (last accessed January 24, 2022).
15
2021-470,§ 1, eff. 5/18/2021.
16
Conn. Gen. Stat. § 31-NEW-Connecticut Essential Workers COVID-19 Assistance Program and Fund Established.
17
Indiana Public Law 142 (April 29, 2021).
18
N.D. Cent. Code § 50-10.3 (2021).
19
Oklahoma HB 2566-2021 Legislative Session, enacted April 27, 2021.
20
Texas Senate Joint Resolution 19-2021 Legislative Session, filed with the Secretary of State June 1, 2021.
21
New Jersey P.L. 2020, c. 113.
22
South Dakota, 2021 H.J. 570.
23
See s. 393.063(12), F.S.
24
Agency for Health Care Administration, Intermediate Care Facility for Individuals with Intellectual Disabilities (ICF/DD) Services,
available at: https://ahca.myflorida.com/medicaid/Policy_and_Quality/Policy/behavioral_health_coverage/bhfu/Intermediate_Care.shtml
(last accessed January 22, 2022). STORAGE NAME: h0987b.CFS PAGE: 5
DATE: 2/2/2022
As of December 21, 2021, there are 104 licensed ICFDDs in Florida with a total of 2,806 beds.
25
ICFDD Visitation Requirements
Florida law requires ICFDDs to ensure that all residents of ICFDDs have an unrestricted right to
visitation, subject to reasonable rules of the facility.
26
The Centers for Medicare and Medicaid Services (CMS) conditions of participation require ICFDDs to
promote visits by individuals with a relationship to the client and promote visits by parents or
guardians to any area of the facility that provides direct client care services to the client, consistent
with the rights of the client and privacy of other clients.
27
On June 3, 2021, CMS issued a memo to
require all ICFDDs to allow indoor visitation at all times.
28
ICFDDs are not currently required to establish a visitation schedule to allow visitation for any period
of time and visitation logs are not required. Currently, ICFDDs are not required to implement safety
protocols relating to resident visitation.
ICFDD Fines and Penalties
APD is authorized to revoke or suspend a license of an ICFDD or impose an administrative fine on a
facility of up to $1,000 per day for failure to comply any of the requirements in ch. 393, F.S. The
aggregate amount of any fine may not be more than $10,000.
29
Nursing Homes
Nursing homes provide 24 hour a day care, case management, health monitoring, personal care,
nutritional meals and special diets, physical, occupational, and speech therapy, social activities, and
respite care for those who are ill or physically infirm. Nursing homes are regulated by the Agency for
Health Care Administration (AHCA) under the Health Care Licensing Procedures Act (Act) in part II of
chapter 408, F.S., which provides licensure requirements for all provider types regulated by AHCA,
and part II of chapter 400, F.S., which includes unique provisions for nursing home licensure beyond
the uniform criteria in the Act.
As of December 21, 2021, there are 705 licensed nursing homes in Florida with a total of 85,778
beds.
30
Nursing Home Visitation Requirements
Florida law requires nursing homes to adopt the residents’ bill of rights, which provides the rights and
responsibilities of residents, and requires nursing homes to treat such residents in accordance with its
provisions.
31
Nursing homes must provide a copy of the resident’s bill of rights to each resident or the
resident’s legal representative at or before the resident’s admission to the facility.
32
The residents’ bill
of rights includes, among other things, the right to visit with any person during visiting hours.
33
25
Florida Agency for Health Care Administration, Agency Analysis of 2022 HB 987 (December 27, 2021).
26
S. 393.13(4)(a)3., F.S.
27
42 C.F.R. § 483.420
28
Centers for Medicare & Medicaid Services, memorandum on visitation at intermediate care facilities for individuals with intellectual
disabilities and Psychiatric Residential Treatment Facilities - Coronavirus Disease -2019, ref: QSO-21-14-ICF/IID & PRTF REVISED
June 3, 2021, available at https://www.cms.gov/files/document/qso-21-14-icfiid-prtf-revised-06032021.pdf (last accessed January 24,
2022).
29
S. 393.0673(1), F.S.
30
Supra at note 25.
31
S. 400.022(1), F.S.
32
S. 400.022(2), F.S.
33
S. 400.022(1)(b), F.S. STORAGE NAME: h0987b.CFS PAGE: 6
DATE: 2/2/2022
Nursing homes are not currently required to establish a visitation schedule to allow visitation for any
period of time and visitation logs are not required. Currently, nursing homes are not required to
implement safety protocols relating to resident visitation.
On November 12, 2021, CMS issued a memo requiring nursing homes that are federally certified to
accept Medicare or Medicaid to allow indoor visitation at all times and for all residents.
34
Nursing Home Fines and Penalties
AHCA is authorized to deny, revoke, or suspend the license of a nursing home, or impose an
administrative fine on a nursing home of up to $500 per day for each violation of any provision of part
II of ch. 400, F.S. or applicable rules. The aggregate amount of any fine may not be more than
$5,000.
35
Assisted Living Facilities
An assisted living facility (ALF) is a residential establishment, or part of a residential establishment,
that provides housing, meals, and one or more personal services for a period exceeding 24 hours to
one or more adults who are not relatives of the owner or administrator.
36
A personal service is direct
physical assistance with, or supervision of, the activities of daily living and the self-administration of
medication.
37
Activities of daily living include ambulation, bathing, dressing, eating, grooming,
toileting, and other similar tasks.
38
ALFs are licensed and regulated by AHCA under part I of ch. 429,
F.S., and part II of ch. 408, F.S., and rule 59A-36, F.A.C.
Facilities are required to provide services in a manner that reduces the risk of transmission of
infectious diseases.
39
ALFs are also required to include in their admission packet, written infection
control policies and procedures, detailing the sanitation methods and other precautions used to
combat the spread of infectious diseases.
40
If any staff member of an ALF has, or is suspected of
having, a communicable disease, the facility is required to prohibit the staff member from performing
their duties until a written statement is submitted from a health care provider indicating that the
individual does not constitute a risk of transmitting a communicable disease.
41
As of December 21, 2021, there are 3,139 licensed ALFs in Florida with a total of 114,979 beds.
42
Assisted Living Facility Visitation Requirements
The Resident Bill of Rights prohibits an ALF from depriving an ALF resident of any civil or legal rights,
benefits, or privileges guaranteed by law, the Florida Constitution, or the Constitution of the United
States.
43
The Resident Bill of Rights requires ALFs to ensure that every resident is provided with
certain enumerated rights, including the right to unrestricted private communication and visitation with
any person they choose between the hours of 9 a.m. and 9 p.m.
44
Upon request, the facility is
required to make provisions to extend visiting hours for caregivers and out-of-town guests, and in
similar situations.
45
34
Centers for Medicare & Medicaid Services, memorandum nursing home visitation, Ref: QSO-20-39-NH Revised November 12, 2021,
available at https://www.cms.gov/files/document/qso-20-39-nh-revised.pdf (last accessed January 24, 2022).
35
S. 400.121(1), F.S.
36
S. 429.02(5), F.S.
37
S. 429.02(18), F.S.
38
S. 429.02(1), F.S.
39
Rule 59A-36.007(10), F.A.C.
40
Rule 59A-36.007(5)(d), F.A.C.
41
Rule 59A-36.010(2)2., F.A.C.
42
Supra at note 25.
43
S. 429.28, F.S.
44
S. 429.28(1)(d), F.S.
45
Id. STORAGE NAME: h0987b.CFS PAGE: 7
DATE: 2/2/2022
ALFs are not currently required to establish a visitation schedule to allow visitation for any period of
time and visitation logs are not required. Currently, ALFs are not required to implement safety
protocols relating to resident visitation.
ALF Fines and Penalties
Section 408.813, F.S. categorizes violations into four classes according to the nature and gravity of
its probable effect on residents.
Class “I” violations are those conditions or occurrences related to the operation and maintenance of a
provider or to the care of clients which AHCA determines present an imminent danger to the clients of
the provider or a substantial probability that death or serious physical or emotional harm would result
therefrom.
46
AHCA may impose an administrative fine of not less than $5,000 and not exceeding
$10,000 for each class “I” violation.
47
Class “II” violations are those conditions or occurrences related to the operation and maintenance of
a provider or to the care of clients which AHCA determines directly threaten the physical or emotional
health, safety, or security of the clients, other than class I violations.
48
AHCA may impose an
administrative fine of not less than $1,000 and not exceeding $5,000 for each class “II” violation.
49
Class “III” violations are those conditions or occurrences related to the operation and maintenance of
a provider or to the care of clients which AHCA determines indirectly or potentially threaten the
physical or emotional health, safety, or security of clients, other than class I or class II
violations.
50
AHCA may impose an administrative fine of up to $500 and not more than $1,000 for
each class “III” violation.
51
Class “IV” violations are those conditions or occurrences related to the operation and maintenance of
a provider or to required reports, forms, or documents that do not have the potential of negatively
affecting clients. These are violations that AHCA determines do not threaten the health, safety, or
security of clients.
52
AHCA may impose an administrative fine of up to $100 and not more than $200
for each violation.
53
Effect of the Bill
The bill allows a resident of an ICFDD, nursing home, or ALF, or his or her guardian or legal
representative, to designate an essential caregiver and prohibits a facility from refusing visitation by
the essential caregiver. An essential caregiver can be a family member, friend, guardian, or other
individual.
46
S. 408.813(2)(a), F.S.
47
S. 429.19(2)(a), F.S.
48
S. 408.813(2)(b), F.S.
49
S. 429.19(2)(b), F.S.
50
S. 408.813(2)(c), F.S.
51
S. 429.19(2)(c), F.S.
52
S. 408.813(2)(d), F.S.
53
S. 429.19(2)(d), F.S. STORAGE NAME: h0987b.CFS PAGE: 8
DATE: 2/2/2022
The bill requires AHCA and APD to develop guidelines to assist facilities in establishing essential
caregiver visitation policies and procedures, which must require facilities to:
Allow a resident or client, or his or her guardian or legal representative, to designate an
essential caregiver for in-person visitation in the same manner that a resident or client would
designate a power of attorney;
Establish a visitation schedule allowing the essential caregiver to visit the resident or client for
at least 2 hours every day;
Establish procedures to enable physical contact between the resident or client and essential
caregivers;
Establish a visitor’s log; and
Obtain the signature of the essential caregiver certifying that the caregiver agrees to follow the
facility’s safety protocols.
Failure to comply with any of the above requirements could result in the denial, revocation or
suspension of a facility’s license or the imposition of an administrative fine.
The bill allows a facility to revoke an individual’s designation as an essential caregiver if the person
violates the facility’s safety protocols. The facility’s safety protocols cannot be more stringent than the
safety protocols established for the staff of the facility.
The bill also allows a facility to suspend all essential caregiver visitation rights one time only for up to
seven days if in-person visitation poses a serious health risk to the residents of the facility. The bill
requires facilities to allow visitation by essential caregivers during a suspension on visitation on a
case by case basis under certain circumstances.
Specifically, visitation by essential caregivers during a suspension must be allowed under any
circumstances deemed appropriate by APD or AHCA, and when:
An end-of-life situation exists;
A client who was living with his or her family before recently being admitted to the provider’s
facility is struggling with the change in environment and lack of physical family support;
A client is grieving the loss of a friend or family member who recently died;
A client needs cueing or encouragement to eat or drink that was previously provided by a
family member or caregiver, and the client is experiencing weight loss or dehydration; and
A client who used to talk and interact with others is experiencing emotional distress, is seldom
speaking, or is crying more frequently.
The bill prohibits a facility from requiring essential caregivers to provide necessary care and services
to residents.
Finally, the bill requires APD and AHCA to publish a web page explaining essential caregiver
visitation rights.
The bill provides an effective date of July 1, 2022.
B. SECTION DIRECTORY:
Section 1: Creates s. 393.131, F.S., relating to essential caregivers; in-person visitation.
Section 2: Creates s. 400.026, F.S., relating to essential caregivers; in-person visitation.
Section 3: Creates s. 429.276, F.S., relating to essential caregivers; in-person visitation.
Section 4: Provides an effective date of July 1, 2022.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT: STORAGE NAME: h0987b.CFS PAGE: 9
DATE: 2/2/2022
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill provides sufficient rule-making authority to AHCA and APD to implement the bill.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On January 27, 2022, the Finance & Facilities Subcommittee adopted an amendment and reported the bill
favorably as a committee substitute. The amendment:
Removes the authority for a facility to request an extension on a suspension of essential caregiver
visitations;
Requires facilities to allow visitation by essential caregivers during a suspension on visitation under
certain circumstances on a case by case basis; and
Requires APD and AHCA to publish a web page explaining essential caregiver visitation rights.
The analysis is drafted to the committee substitute as passed by the Finance & Facilities Subcommittee.