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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to nursing homes; amending s. 400.021, 2
F.S.; revising a definition; amending s. 400.23, F.S.; 3
providing definitions; specifying functions that do 4
not constitute direct care staffing hours for purposes 5
of required nursing home staffing ratio s; requiring 6
nursing home facilities to determine their direct care 7
staffing needs based on the facility assessment and 8
the individual needs of a resident based on the 9
resident's care plan; revising nursing home staffing 10
requirements; requiring nursing hom e facilities to 11
maintain and report staffing information consistent 12
with federal law; specifying that evidence of a 13
facility's compliance with the minimum direct care 14
staffing requirements is not admissible as evidence of 15
compliance with certain federal re quirements; 16
providing that certain paid feeding assistants and 17
direct care staff count toward compliance with the 18
overall direct care minimum staffing requirement; 19
providing an exception; requiring certain direct care 20
staff to complete a certain feeding as sistant training 21
program; authorizing the Agency for Health Care 22
Administration to adopt rules; amending s. 400.0234, 23
F.S.; providing that certain information submitted to 24
the agency is discoverable and may be admissible in 25
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certain civil or administrative proceedings; amending 26
s. 400.024, F.S.; providing that the transferee in a 27
change of ownership of a facility is responsible and 28
liable for any unsatisfied or undischarged adverse 29
final judgements; requiring the licensee or transferor 30
who submits an applica tion for a change of ownership 31
to provide written notice to each pending claimant or 32
the claimant's attorney; requiring such notice to be 33
provided within a specified timeframe and by certain 34
methods; providing that a claimant has a specified 35
period to object to an application for a change of 36
ownership; requiring the agency to consider any 37
objection in its decision to approve or deny such 38
application; authorizing a claimant to file a petition 39
to enjoin a change of ownership under certain 40
circumstances; defin ing the term "claimant"; amending 41
s. 400.141, F.S.; revising provisions relating to a 42
facility's failure to comply with minimum staffing 43
requirements; conforming cross -references and 44
provisions to changes made by the act; providing an 45
effective date. 46
47
Be It Enacted by the Legislature of the State of Florida: 48
49
Section 1. Subsection (18) of section 400.021, Florida 50
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Statutes, is amended to read: 51
400.021 Definitions. —When used in this part, unless the 52
context otherwise requires, the term: 53
(18) "Resident care plan" means a written comprehensive 54
person-centered care plan developed in accordance with 42 55
C.F.R. s. 483.21(b) by an interdisciplinary team within 7 days 56
after completion of a comprehensive assessment and with 57
participation by the resident or the resident's designee. The 58
resident care plan must be reviewed and revised after each 59
comprehensive assessment which may be a new admission 60
assessment, an annual assessment, or an assessment after a 61
significant change in status and after a quarterly revi ew 62
assessment. A resident care plan includes measurable objectives 63
and timeframes to meet the resident's medical, nursing, mental, 64
and psychosocial needs and preferences and must describe the 65
services to be furnished , maintained, and reviewed not less 66
than quarterly by a registered nurse, with participation from 67
other facility staff and the resident or his or her designee or 68
legal representative, which includes a comprehensive assessment 69
of the needs of an individual resident; the type and frequency 70
of services required to provide the necessary care for the 71
resident to attain or maintain the resident's highest 72
practicable physical, mental, and psychosocial well -being; a 73
listing of services provided within or outside the facility to 74
meet those needs; and an e xplanation of service goals . 75
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Section 2. Subsection (3) of section 400.23, Florida 76
Statutes, is amended to read: 77
400.23 Rules; evaluation and deficiencies; licensure 78
status.— 79
(3)(a)1. As used in this subsection, the term: 80
a. "Direct care staff" means persons who, through 81
interpersonal contact with residents or resident care 82
management, provide care and services to allow residents to 83
attain or maintain the highest practicable physical, mental, 84
and psychosocial well -being, including, but not limite d to, 85
disciplines and professions that must be reported in accordance 86
with 42 C.F.R. s. 483.70(q) in the categories of direct care 87
services of nursing, dietary, therapeutic, and mental health. 88
The term does not include a person whose primary duty is 89
maintaining the physical environment of the facility, 90
including, but not limited to, food preparation, laundry, and 91
housekeeping. 92
b. "Facility assessment" means a process to determine the 93
staff competencies necessary to provide the level and types of 94
care needed for the facility's resident population considering 95
the types of diseases, conditions, physical and cognitive 96
disabilities, overall acuity, and other facts pertinent to that 97
resident population, and performed in accordance with 42 C.F.R. 98
s. 483.70(e). 99
2. For purposes of this subsection, direct care staffing 100
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hours do not include time spent on nursing administration, 101
activities program administration, staff development, staffing 102
coordination, and the administrative portion of the minimum 103
data set and care plan coordination for Medicaid. 104
(b)1. Each facility must determine its direct care 105
staffing needs based on the facility assessment and the 106
individual needs of a resident based on the resident's care 107
plan. At a minimum, staffing The agency shall adopt ru les 108
providing minimum staffing requirements for nursing home 109
facilities. These requirements must include, for each facility , 110
the following requirements : 111
a. A minimum weekly average of certified nursing assistant 112
and licensed nursing staffing combined of 3.6 hours of direct 113
care by direct care staff per resident per day. As used in this 114
sub-subparagraph, a week is defined as Sunday through Saturday. 115
b. A minimum certified nursing assistant staffing of 2.0 116
2.5 hours of direct care by a certified nursing a ssistant per 117
resident per day. A facility may not staff below one certified 118
nursing assistant per 20 residents. 119
c. A minimum licensed nursing staffing of 1.0 hour of 120
direct care by a licensed nurse per resident per day. A 121
facility may not staff below one licensed nurse per 40 122
residents. 123
2. Nursing assistants employed under s. 400.211(2) may be 124
included in computing the hours of direct care provided by 125
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certified nursing assistants and may be included in computing 126
the staffing ratio for certified nursing assistants if their 127
job responsibilities include only nursing -assistant-related 128
duties. 129
3. Each nursing home facility must document compliance 130
with staffing standards as required under this paragraph and 131
post daily the names of licensed nurses and certif ied nursing 132
assistants staff on duty for the benefit of facility residents 133
and the public. Facilities must maintain the records 134
documenting compliance with minimum staffing standards for a 135
period of 5 years and must report staffing in accordance with 136
42 C.F.R. s. 483.70(q). 137
4. The agency must shall recognize the use of licensed 138
nurses for compliance with minimum staffing requirements for 139
certified nursing assistants if the nursing home facility 140
otherwise meets the minimum staffing requirements for license d 141
nurses and the licensed nurses are performing the duties of a 142
certified nursing assistant. Unless otherwise approved by the 143
agency, licensed nurses counted toward the minimum staffing 144
requirements for certified nursing assistants must exclusively 145
perform the duties of a certified nursing assistant for the 146
entire shift and not also be counted toward the minimum 147
staffing requirements for licensed nurses. If the agency 148
approved a facility's request to use a licensed nurse to 149
perform both licensed nursing and certified nursing assistant 150
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duties, the facility must allocate the amount of staff time 151
specifically spent on certified nursing assistant duties for 152
the purpose of documenting compliance with minimum staffing 153
requirements for certified and licensed nursin g staff. The 154
hours of a licensed nurse with dual job responsibilities may 155
not be counted twice. 156
5. Evidence that a facility complied with the minimum 157
direct care staffing requirements under subparagraph 1. is not 158
admissible as evidence of compliance with the nursing services 159
requirements under 42 C.F.R. s. 483.35 or 42 C.F.R. s. 483.70. 160
(c)(b) Paid feeding assistants and direct care nonnursing 161
staff who provide providing eating assistance to residents 162
shall not count toward compliance with overall direct care 163
minimum staffing hours, but not the hours of direct care 164
required for certified nursing assistants or licensed nurses. 165
Direct care staff who are not certified nursing assistants or 166
licensed nurses must successfully complete the feeding 167
assistant training program under s. 400.141(1)(v) for purposes 168
of this paragraph. Time spent by certified nursing assistants 169
or licensed nurses providing eating assistance to residents 170
shall count toward the hours of direct care required for 171
certified nursing assi stants or licensed nurses standards. 172
(d)(c) Licensed practical nurses licensed under chapter 173
464 who provide are providing nursing services in nursing home 174
facilities under this part may supervise the activities of 175
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other licensed practical nurses, certif ied nursing assistants, 176
and other unlicensed personnel providing services in such 177
facilities in accordance with rules adopted by the Board of 178
Nursing. 179
(e) The agency may adopt rules to implement this 180
subsection. 181
Section 3. Subsection (2) of section 4 00.0234, Florida 182
Statutes, is renumbered as subsection (3), and a new subsection 183
(2) is added to that section, to read: 184
400.0234 Availability of facility records for 185
investigation of resident's rights violations and defenses; 186
penalty.— 187
(2) Information submitted pursuant to s. 408.061(5) and 188
(6) is discoverable and may be admissible in a civil action or 189
an administrative action under this part or part II of chapter 190
408. 191
Section 4. Subsection (4) of section 400.024, Florida 192
Statutes, is amended, and s ubsection (5) is added to that 193
section, to read: 194
400.024 Failure to satisfy a judgment or settlement 195
agreement; required notification to claimants .— 196
(4) If, After the agency is placed on notice pursuant to 197
subsection (2), the following applies and: 198
(a) If the license is subject to renewal, the agency may 199
deny the license renewal unless compliance with this section is 200
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achieved.; and 201
(b) If a change of ownership application for the facility 202
at issue is submitted by the licensee, by a person or entity 203
identified as having a controlling interest in the licensee, or 204
by a related party, the agency shall deny the change of 205
ownership application u nless compliance with this section is 206
achieved. 207
(c) If an adverse final judgement under subsection (1) is 208
entered, but payment is not yet due and a change of ownership 209
application for the facility at issue is submitted by the 210
licensee, by a person or ent ity identified as having a 211
controlling interest in the licensee, or by a related party, 212
the adverse final judgment becomes the responsibility and 213
liability of the transferee if the agency approves the change 214
of ownership application. 215
(5) If a change of o wnership application for the facility 216
at issue is submitted by the licensee, by a person or entity 217
identified as having a controlling interest in the licensee, or 218
by a related party: 219
(a) The licensee or transferor must provide written notice 220
of the submission of the application to each pending claimant 221
or the claimant's attorney of record, if applicable. The 222
written notice must be provided within 14 days after the date 223
the application is submitted to the agency. Notice must be 224
provided by certified mail, return receipt requested, or other 225
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method that provides verification of receipt. 226
(b) A claimant has 30 days after the date of receipt of 227
the written notice to object to the application if the claimant 228
has reason to believe that the approval of the applic ation 229
would facilitate a fraudulent transfer or allow the transferor 230
to avoid financial responsibility for the claimant's pending 231
claim. 232
(c) The agency must consider any objection brought 233
pursuant to this subsection in its decision to approve or deny 234
an application for change of ownership under this part and part 235
II of chapter 408. 236
(d) If a claim is pending in arbitration at the time that 237
the application for change of ownership is filed, the claimant 238
may file a petition to enjoin the transfer in circuit court. 239
240
As used in this subsection, "claimant" means a resident, the 241
resident's family, or a personal representative who has 242
notified the licensee or facility of a potential claim by 243
written notice of intent or who has initiated an action, claim, 244
or arbitration proceeding against the licensee or facility. 245
Section 5. Paragraphs (g), (n), and (r) of subsection (1) 246
of section 400.141, Florida Statutes, are amended to read: 247
400.141 Administration and management of nursing home 248
facilities.— 249
(1) Every licensed facility shall comply with all 250
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applicable standards and rules of the agency and shall: 251
(g) If the facility has a standard license, exceeds the 252
minimum required hours of direct care provided by licensed 253
nurses nursing and certified nursing assistants assistant 254
direct care per resident per day, and is part of a continuing 255
care facility licensed under chapter 651 or is a retirement 256
community that offers other services pursuant to part III of 257
this chapter or part I or part III of chapter 429 on a singl e 258
campus, be allowed to share programming and staff. At the time 259
of inspection, a continuing care facility or retirement 260
community that uses this option must demonstrate through 261
staffing records that minimum staffing requirements for the 262
facility were met. Licensed nurses and certified nursing 263
assistants who work in the facility may be used to provide 264
services elsewhere on campus if the facility exceeds the 265
minimum number of direct care hours required per resident per 266
day and the total number of residents r eceiving direct care 267
services from a licensed nurse or a certified nursing assistant 268
does not cause the facility to violate the staffing ratios 269
required under s. 400.23(3)(b) s. 400.23(3)(a). Compliance with 270
the minimum staffing ratios must be based on the total number 271
of residents receiving direct care services, regardless of 272
where they reside on campus. If the facility receives a 273
conditional license, it may not share staff until the 274
conditional license status ends. This paragraph does not 275
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restrict the agency's authority under federal or state law to 276
require additional staff if a facility is cited for 277
deficiencies in care which are caused by an insufficient number 278
of certified nursing assistants or licensed nurses. The agency 279
may adopt rules for the documen tation necessary to determine 280
compliance with this provision. 281
(n) Comply with state minimum -staffing requirements: 282
1. A facility that has failed to comply with state 283
minimum-staffing requirements for 48 2 consecutive hours days 284
is prohibited from accep ting new admissions until the facility 285
has achieved the minimum -staffing requirements for 6 286
consecutive days. For the purposes of this subparagraph, any 287
person who was a resident of the facility and was absent from 288
the facility for the purpose of receiving medical care at a 289
separate location or was on a leave of absence is not 290
considered a new admission. Failure by the facility to impose 291
such an admissions moratorium is subject to a $1,000 fine. 292
2. A facility that does not have a conditional license may 293
be cited for failure to comply with the standards in s. 294
400.23(3)(b)1.b. and c. s. 400.23(3)(a)1.b. and c. only if it 295
has failed to meet those standards for 48 on 2 consecutive 296
hours days or if it has failed to meet at least 97 percent of 297
those standards on any one day. 298
3. A facility that has a conditional license must be in 299
compliance with the standards in s. 400.23(3)(b) s. 300
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400.23(3)(a) at all times. 301
(r) Maintain in the medical recor d for each resident a 302
daily chart of direct care certified nursing assistant services 303
provided to the resident. The direct care staff certified 304
nursing assistant who is caring for the resident must complete 305
this record by the end of his or her shift. This record must 306
indicate assistance with activities of daily living, assistance 307
with eating, and assistance with drinking, and must record each 308
offering of nutrition and hydration for those residents whose 309
plan of care or assessment indicates a risk for malnut rition or 310
dehydration. 311
Section 6. This act shall take effect upon becoming a law. 312