This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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DATE: 4/8/2022
HOUSE OF REPRESENTATIVES STAFF FINAL BILL ANALYSIS
BILL #: CS/CS/HB 1239 Nursing Homes
SPONSOR(S): Health & Human Services Committee and Finance & Facilities Subcommittee, Melo
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 804
FINAL HOUSE FLOOR ACTION: 80 Y’s
31 N’s GOVERNOR’S ACTION: Approved
SUMMARY ANALYSIS
CS/CS/HB 1239 passed the House on March 4, 2022, and subsequently passed the Senate on March 7, 2022.
A nursing home is a facility that provides 24-hour nursing care, personal care, and custodial care to individuals who
are ill or physically infirm. Nursing homes are licensed and regulated by the Agency for Health Care Administration
(AHCA) under part II of ch. 400, F.S., and must meet conditions of participation (COPs) established by the federal
Centers for Medicare and Medicaid Services (CMS) to participate in the Medicare and Medicaid programs.
The CMS COPs do not include minimum staffing requirements. Instead, CMS requires nursing homes to conduct
and document a facility assessment to determine the resources necessary to care for its residents competently
during day-to-day operations and emergencies. However, Florida law requires nursing homes to meet the following
minimum staffing requirements:
A weekly average of 3.6 hours of direct care per resident per day provided by a combination of certified
nursing assistants (CNAs) and licensed nursing staff.
2.5 hours of direct care per resident per day provided by CNAs. A facility may not staff at a ratio of less than
one CNA per 20 residents.
1.0 hour of direct care per resident per day provided by licensed nurses. A facility may not staff at a ratio of
less than one licensed nurse per 40 residents.
The bill reduces required CNA direct care from 2.5 hours to 2 hours per resident per day, and retains current law
requiring 1 hour of licensed nurse direct care per resident per day. For the remaining 0.6 hours of the required 3.6
weekly average of total hours of direct care, the bill allows nursing homes to count care provided by any
combination of the following categories of disciplines and professions: nursing; dietary; therapeutic; mental health;
and paid feeding assistants.
The bill requires nursing homes to maintain records documenting compliance with minimum staffing requirements
for at least five years, and makes evidence of such compliance inadmissible as evidence of compliance with federal
standards.
Certain changes in a nursing home’s ownership must be approved by AHCA. For a change of ownership (CHOW),
the bill makes the transferee liable for any unsatisfied adverse final judgment against the transferor if AHCA
approves the CHOW before the judgment is due and paid. Upon filing the CHOW application, the transferor must
provide written notice to each pending claimant. Within 30 days of receipt of the written notice, the bill allows a
claimant to object to the application under certain circumstances, and AHCA must consider the objection in its
decision to approve or deny a CHOW application.
The bill has no fiscal impact on state or local government.
The bill was approved by the Governor on April 6, 2022, ch. 2022-61, L.O.F., and became effective on that
date.
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I. SUBSTANTIVE INFORMATION
A. EFFECT OF CHANGES:
Background
Nursing Home Staffing Requirements
A nursing home is a facility that provides 24-hour nursing care, personal care, or custodial care to
individuals who are ill or physically infirm.
1
Nursing homes are licensed and regulated by the Agency for
Health Care Administration (AHCA) under part II of ch. 400, F.S. Nursing homes are required to meet
certain conditions of participation (COPs) established by the federal Centers for Medicare and Medicaid
Services (CMS) in order to qualify to participate in the Medicare and Medicaid programs.
2
Federal Staffing Requirements
The CMS COPs do not include minimum staffing requirements. Instead, CMS requires nursing homes
to conduct and document a facility assessment to determine the resources necessary to care for its
residents competently during day-to-day operations and emergencies.
3
Nursing homes must review
and update the assessment at least annually and whenever there is a change that would require a
substantial modification to any part of the facility assessment. The facility assessment must include:
The facility’s resident population.
The facility’s resources, including:
o services provided, such as physical therapy, pharmacy, and specific rehabilitation
therapies; and
o all personnel, including managers, staff, and volunteers, as well as their education and
training and any competencies related to resident care.
4
While CMS does not set staffing minimums, it does require nursing homes to report staffing data to
CMS. The CMS COPs requires nursing homes to electronically submit complete and accurate direct
care staffing information, including the following:
The category of work for each person on direct care staff,
5
including, but not limited to, whether
the individual is a registered nurse, licensed practical nurse, licensed vocational nurse, certified
nursing assistant (CNA), therapist, or other type of medical personnel as specified by CMS;
Resident census data; and
Information on direct care staff turnover and tenure, and on the hours of care provided by each
category of staff per resident per day, including, but not limited to, start date, end date, and
hours worked for each individual.
6
The staffing information must be reported to CMS at least quarterly.
7
The CMS COPs also require nursing homes to post certain nurse staffing information on a daily basis,
including the actual hours worked by registered nurses, licensed practical nurses or licensed vocational
1
S. 400.021(7), F.S.
2
42 C.F.R. § 483.1.
3
42 C.F.R. § 483.70(e).
4
Id.
5
Direct care staff are those individuals who, through interpersonal contact with residents or resident care management, provide care
and services to allow residents to attain or maintain the highest practicable physical, mental, and psychosocial well-being. Direct care
staff does not include individuals whose primary duty is maintaining the physical environment of the facility (for example,
housekeeping).
6
42 C.F.R. § 483.70(q).
7
Id.
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nurses, and CNAs. The data must be posted in a clear and legible format in a prominent place that is
readily accessible to residents and visitors. The facility must maintain the staffing data for a minimum of
18 months, or as required by state law, whichever is greater.
8
State Staffing Requirements
Florida, along with 26 other states, has statutory requirements for staff-to-resident ratios in nursing
homes.
9
Section 400.23(3), F.S., establishes the minimum staffing requirements:
A minimum weekly
10
average of 3.6 hours of direct care per resident per day provided by a
combination of CNAs and licensed nursing staff.
A minimum of 2.5 hours of direct care per resident per day provided by CNAs. A facility may not
staff at a ratio of less than one CNA per 20 residents.
A minimum of 1.0 hour of direct care per resident per day provided by licensed nurses. A facility
may not staff at a ratio of less than one licensed nurse per 40 residents.
Certified Nursing Assistants and Licensed Nurses
When computing the staffing ratio for certified nursing assistants, nursing home facilities are allowed to
use uncertified nursing assistants under certain conditions to satisfy the staffing ratio requirements, if
their job duties only include nursing assistant-related duties.
11
If approved by AHCA, licensed nurses may also be used to meet staffing requirements for CNAs if the
licensed nurses are performing the duties of a CNA and the facility otherwise meets minimum staffing
requirements for licensed nurses.
12
However, nurse and CNA time spent feeding is not counted
towards minimum staffing.
13
Nursing homes are required to maintain a daily chart of CNA services provided to each resident. The
daily chart must document assistance with activities of daily living and eating or drinking, and must
record each offering of nutrition and hydration for residents whose plan of care or assessment indicates
a risk for malnutrition or dehydration.
14
Nursing homes are required to document compliance with staffing requirements and daily post the
names of staff on duty for the benefit of facility residents and the public.
15
Paid Feeding Assistants
Section 400.141(1)(v), F.S., authorizes nursing home facilities to employ paid feeding assistants in
accordance with Federal regulations
16
to help residents who have no complicated feeding problems but
need some assistance in eating or drinking. Paid feeding assistants are required to complete a 12-hour
feeding assistant training program developed by AHCA, which must, at a minimum, provide training on:
8
42 C.F.R. § 483.35(g).
9
In January of 2021, Finance & Facilities Subcommittee staff conducted a 50-state analysis of states that had laws on staff-to-patient
ratios in nursing homes.
10
A week is defined as Sunday through Saturday.
11
Sections 400.23(3)(a)2. and 400.211(2), F.S. Nursing facilities may employ uncertified nursing assistants for a single consecutive
period of up to 4 months if they: are enrolled in, or have completed, a state-approving nursing assistant program; have been positively
verified as actively certified and on the registry in another state with no findings of abuse, neglect, or exploitation in that state; have
preliminarily passed the state’s certification exam; or are employed as a personal care attendant.
12
Section 400.23(3)(a)4., F.S., and rule 59A-4.108(7), F.A.C. The hours of a licensed nurse with dual job responsibilities may not be
counted twice.
13
Section 400.23(3)(b), F.S.
14
Section 400.141(1)(r), F.S.
15
Section 400.23(3)(a)3., F.S.
16
42 C.F.R. § 483.60, and 42 C.F.R. § 488.301.
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Feeding techniques;
Assistance with feeding and hydration;
Communication and interpersonal skills;
Appropriate responses to resident behavior;
Safety and emergency procedures, including the Heimlich maneuver;
Infection control;
Residents rights; and
Recognizing changes in residents that are inconsistent with their normal behavior and the
importance of reporting those changes to the supervisory nurse.
17
Pursuant to federal regulations, paid feeding assistants must work under the supervision of a registered
nurse or licensed practical nurse.
18
Federal regulations also require nursing homes to maintain a record
of all individuals that have successfully completed the training course.
19
Of the 27 states with laws on staff-to-resident ratios in nursing homes, 10 of those states specifically
prohibit nursing homes from counting paid feeding assistants toward the nursing home staff-to-resident
ratio requirements of their states. The other 17 states do not specify whether or not paid feeding
assistants count toward the nursing home staff-to-resident ratio requirements of their states.
20
Florida currently prohibits nursing homes from counting paid feeding assistants toward the nursing
home staff-to-resident ratio requirements contained in s. 400.23, F.S.
21
Staffing Enforcement
AHCA is required to conduct at least one unannounced inspection of licensed nursing homes every 15
months.
22
To determine compliance with the minimum staffing requirements, AHCA reviews a facility’s
time cards, payroll, or computer printouts of actual time worked for the two-week period immediately
preceding the inspection.
Nursing homes are required to place a self-imposed moratorium on new admissions if they fail to
comply with minimum staffing requirements for two consecutive days, which must continue until the
facility is in compliance with the minimum staffing requirements for six consecutive days.
23
AHCA is
authorized to impose a fine of $1,000 on a facility that fails to self-impose a moratorium for
noncompliance with minimum staffing requirements.
24
17
Section 400.141(1)(v), F.S.
18
42 C.F.R. § 483.60(h).
19
42 C.F.R. § 483.160(b).
20
Supra at note 9.
21
Section 400.23(3)(b), F.S.
22
42 C.F.R. §. 488.308(a).
23
Section 400.141(1)(n)1., F.S.
24
Id.
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Nursing Home Change of Ownership
Certain changes in nursing home ownership must be approved by AHCA. Current law requires an
application for change of ownership
25
(CHOW) of a nursing home to comply with all aspects of an initial
license application, including payment of licensure fees and submitting proof of financial ability to
operate.
26
To initiate a CHOW, the transferor must notify AHCA in writing of the CHOW and the transferee must
submit an application for initial licensure at least 60 days before the anticipated date of the CHOW.
27
The transferor in a CHOW is responsible and liable for:
The lawful operation of the nursing home and the welfare of the clients served until the
transferee becomes licensed; and
All penalties imposed by AHCA against the transferor for violations occurring before the date of
the CHOW.
28
Civil Lawsuit Judgments
Section 400.024, F.S., establishes certain restrictions on nursing homes
29
that have had an adverse
final judgment against them which arises from a civil claim, including an arbitration award, for a claim of
negligence or a violation of residents’ rights, in contract or tort, or from noncompliance with the terms of
a settlement agreement as determined by a court or arbitration panel.
In such an instance, the nursing home must pay the judgment creditor the entire amount of the
judgment, award, or settlement and all accrued interest within 60 days after the date such judgment,
award, or settlement becomes final and subject to execution unless otherwise mutually agreed to in
writing by the parties. If AHCA is notified
30
of an unsatisfied final judgment or settlement, they may
revoke or deny a renewal application or a related party CHOW application.
Within 60 days after receiving such notification, AHCA must notify the nursing home by certified mail,
return receipt requested, that it is subject to disciplinary action unless, within 30 days after the date of
mailing the notice, the nursing home:
Shows proof that the unsatisfied judgment or settlement has been paid in the amount specified;
Shows proof of the existence of a payment plan mutually agreed upon by the parties in writing;
Furnishes AHCA with a copy of a timely filed notice of appeal;
Furnishes AHCA with a copy of a court order staying execution of the final judgment; or
Shows proof that they are seeking indemnification from an insurer or another party by furnishing
AHCA with a copy of an order from a court or arbitration panel.
25
Section 408.803(5), F.S. A change of ownership is an event in which: the licensee sells or otherwise transfers its ownership to a
different individual or entity as evidenced by a change in federal employer identification number or taxpayer identification number; or 51
percent or more of the ownership, shares, membership, or controlling interest of a licensee is an any manner transferred or otherwise
assigned.
26
Section 408.806, F.S. Section 408.810(8), F.S., provides an exemption from furnishing proof of financial ability to operate for a
CHOW applicant who has been licensed for at least five years, and: The ownership change is a result of a corporate reorganization
under which the controlling interest is unchanged and the applicant submits organizational charts that represent the current and
proposed structure of the organized corporation; or the ownership change is due solely to the death of a person holding a controlling
interest, and the surviving controlling interests continue to hold at least 51 percent of ownership.
27
Section 408.807, F.S.
28
Id.
29
Licensee means an individual, corporation, partnership, firm, association, governmental entity, or other entity that is issued a permit,
registration, certificate, or license by AHCA and that is legally responsible for all aspects of the operation of the nursing home facility.
30
Section 400.024(2), F.S., deems that AHCA is notified of an unsatisfied judgment or settlement when a certified copy of the judgment
and a certified copy of a valid judgment lien certificate, filed in accordance with ss. 55.202
30
and 55.203
30
, F.S., are served to the AHCA
by a process server or received by certified mail, return receipt requested.
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If AHCA is placed on notice and such proof is not provided by the nursing home, AHCA must issue an
emergency order declaring that the facility lacks financial ability to operate and a notice of intent to
revoke or deny a license. In addition, if the license is subject to renewal, AHCA may choose to deny the
license renewal unless the final judgment is satisfied.
For a CHOW, AHCA does not have discretion and must deny a CHOW application unless the final
judgement is satisfied.
Nursing Home Financial Reports
Nursing homes are required to submit financial data to AHCA pursuant to s. 408.061(5)-(6), F.S.
Nursing homes are required to report, within 120 days after the end of its fiscal year, its actual financial
experience for that fiscal year, including expenditures, revenues, and statistical measures. Such data
may be based on internal financial reports, if certified complete and accurate by the chief financial
officer of the nursing home. This actual experience must include the fiscal year-end balance sheet,
income statement, statement of cash flow, and statement of retained earnings and must be submitted
to AHCA in addition to the information filed in the uniform system of financial reporting.
31
Effect of the Bill
Staffing Requirements
The bill makes the following changes to the minimum staffing requirements for nursing homes.
Requirement Current Law Effect of the Bill
Minimum Average of
Total Direct Care
Hours
3.6 daily care hours
Based on weekly average of
hours provided by CNAs and
licensed nurses.
3.6 daily care hours
Based on weekly average of hours provided by CNAs
and licensed nurses, and the following categories of
direct care services: physician; pharmacy; dietary;
therapeutic; dental; podiatry; and mental health.
Direct Care by
CNAs
Minimum of 2.5 hours provided
by CNAs per resident per day.
Minimum of 2.0 hours provided by CNAs per resident per
day.
Direct Care by
Nurses
Minimum of 1.0 hours provided
by nurses per resident per day.
No change
Direct Care by
Other Staff
N/A
Maximum 0.6 hours provided by non-CNAs/non-nurses
per resident per day.
(3.6 hrs. total minimum - 2.0 hrs. minimum CNA - 1.0
hr. minimum nurse = 0.6 hr.)
As depicted in the table above, the bill reduces the number of hours of required CNA direct care from
2.5 hours to 2 hours per resident per day. The bill retains current law requiring 1 hour of licensed nurse
direct care per resident per day. In total, at least 3 hours of direct care per resident per day must be
provided by CNAs and licensed nurses.
31
Section 408.061(2), F.S., requires AHCA to specify a uniform system of financial reporting for each type of facility based on a uniform
chart of accounts. Such systems must, to the extent feasible, use existing accounting systems and shall minimize the paperwork
required of facilities. As a part of such uniform system of financial reporting, AHCA may require the filing of any information relating to
the cost to the provider and the charge to the consumer of any service provided in such facility, except the cost of a physician’s services
which is billed independently of the facility.
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For the remaining 0.6 hours of the required 3.6 weekly average of total hours of direct care, the bill
allows nursing homes to count care provided by any combination of the following categories of
disciplines and professions: nursing; dietary; therapeutic; mental health; and paid feeding assistants.
The bill also authorizes nursing homes to count paid feeding assistants towards the overall 3.6 hour
weekly average minimum staffing requirement. Current law prohibits nursing homes from counting paid
feeding assistants towards any of the minimum staffing requirements.
Current law requires nursing homes to post daily the names of all staff on duty. The bill requires nursing
homes to post daily the hours worked by registered nurses, licensed practical nurses, and CNAs.
Further, the bill requires nursing homes to maintain records documenting compliance with minimum
staffing standards for at least five years.
Legal proceedings for noncompliance with federal staffing requirements are often rebutted by nursing
homes who provide proof of compliance with state staffing requirements as evidence of compliance
with federal staffing requirements. The bill provides that evidence of a facility’s compliance with state
minimum staffing requirements is not admissible as evidence of compliance with federal staffing
requirements.
Change of Ownership
When a nursing home changes ownership it may be difficult for a claimant to recoup an unsatisfied final
judgment because they are unaware of the change or unable to identify the new owner. The bill adds
several requirements to assist claimants in recovering unsatisfied final judgments under such
circumstances.
Specifically, in a change of ownership (CHOW), the bill makes the transferee liable for unsatisfied
adverse final judgments against the transferor where final payment is not yet due. Upon filing a CHOW
application, the transferor must provide written notice to each pending claimant. The bill allows a
claimant to object to the application within 30 days of receipt of the notice, if the claimant has reason to
believe that the approval of the application would facilitate a fraudulent transfer or allow the transferor
to avoid financial responsibility. AHCA must consider the objection in its decision to approve or deny a
CHOW application. Further, if a claim is pending in arbitration at the time the CHOW is filed, the
claimant may file a petition to enjoin the transfer in circuit court.
Nursing Home Financial Reports
The bill provides that forms filed with AHCA pursuant to s. 408.061(5)-(6), F.S., and the information
disclosed within the forms, are not privileged or protected from use in administrative, civil or criminal
proceedings.
The bill is effective upon becoming a law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
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None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have a positive fiscal impact on nursing homes resulting from the reduction in the number
of hours of required CNA direct care from 2.5 hours to 2 hours per resident per day.
The bill may have a negative fiscal impact on nursing homes due to an increase in litigation costs
related to the inadmissibility of evidence of compliance with state minimum staffing requirements as
evidence of compliance with federal staffing requirements.
The bill may have a positive fiscal impact on claimants with unsatisfied judgments against nursing
homes as the bill enhances their opportunity to recoup such judgments.
D. FISCAL COMMENTS:
None.