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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
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 ratios; 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 o n the 9
resident's care plan; revising nursing home staffing 10
requirements; requiring nursing home 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 requirements; 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 assistant 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 sub mitted 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 undi scharged adverse 29
final judgements; requiring the licensee or transferor 30
who submits an application 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 specif ied 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; defining 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 annua l assessment, or an assessment after a 61
significant change in status and after a quarterly review 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 pref erences 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 c omprehensive 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 explanation 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; l icensure 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 limited 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 admini stration, 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 rules 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 Sat urday. 115
b. A minimum certified nursing assistant staffing of 2.0 116
2.5 hours of direct care by a certified nursing assistant 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 complia nce 130
with staffing standards as required under this paragraph and 131
post daily the names of licensed nurses and certified 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 licensed 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 li censed 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 assistan t duties for 152
the purpose of documenting compliance with minimum staffing 153
requirements for certified and licensed nursing 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 wi th 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, other than certified nursing assistants and licensed 162
nurses, who have successfully completed the feeding assistant 163
training program under s. 400.141(1)(v) and who provide 164
providing eating assistance to residents shall not count toward 165
compliance with overall direct care minimum staffing hours but 166
not the hours of direct care required for certified nursing 167
assistants or licensed nurses. Time spent by certified nursing 168
assistants or licensed nurses on providing eating assistance to 169
residents shall count toward the hours of direct care required 170
for certified nursing assistants or licensed nurses standards. 171
(d)(c) Licensed practical nurses licensed under chapter 172
464 who provide are providing nursing services in nursing home 173
facilities under this part may supervise the activities of 174
other licensed practical nurses, certified nursing assistants, 175
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and other unlicensed personnel providing services in such 176
facilities in accordance with rules adopted by the Board of 177
Nursing. 178
(e) The agency may adopt r ules to implement this 179
subsection. 180
Section 3. Subsection (2) of section 400.0234, Florida 181
Statutes, is renumbered as subsection (3), and a new subsection 182
(2) is added to that section, to read: 183
400.0234 Availability of facility records for 184
investigation of resident's rights violations and defenses; 185
penalty.— 186
(2) Information submitted pursuant to s. 408.061(5) and 187
(6) is discoverable and may be admissible in a civil action or 188
an administrative action under this part or part II of chapter 189
408. 190
Section 4. Subsection (4) of section 400.024, Florida 191
Statutes, is amended, and subsection (5) is added to that 192
section, to read: 193
400.024 Failure to satisfy a judgment or settlement 194
agreement; required notification to claimants .— 195
(4) If, After the agency is placed on notice pursuant to 196
subsection (2), the following applies and: 197
(a) If the license is subject to renewal, the agency may 198
deny the license renewal unless compliance with this section is 199
achieved.; and 200
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(b) If a change of ownership application for the facility 201
at issue is submitted by the licensee, by a person or entity 202
identified as having a controlling interest in the licensee, or 203
by a related party, the agency shall deny the change of 204
ownership application u nless compliance with this section is 205
achieved. 206
(c) If an adverse final judgement under subsection (1) is 207
entered, but payment is not yet due and a change of ownership 208
application for the facility at issue is submitted by the 209
licensee, by a person or ent ity identified as having a 210
controlling interest in the licensee, or by a related party, 211
the adverse final judgment becomes the responsibility and 212
liability of the transferee if the agency approves the change 213
of ownership application. 214
(5) If a change of o wnership application for the facility 215
at issue is submitted by the licensee, by a person or entity 216
identified as having a controlling interest in the licensee, or 217
by a related party: 218
(a) The licensee or transferor must provide written notice 219
of the submission of the application to each pending claimant 220
or the claimant's attorney of record, if applicable. The 221
written notice must be provided within 14 days after the date 222
the application is submitted to the agency. Notice must be 223
provided by certified mail, return receipt requested, or other 224
method that provides verification of receipt. 225
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(b) A claimant has 30 days after the date of receipt of 226
the written notice to object to the application if the claimant 227
has reason to believe that the approval of the applic ation 228
would facilitate a fraudulent transfer or allow the transferor 229
to avoid financial responsibility for the claimant's pending 230
claim. 231
(c) The agency must consider any objection brought 232
pursuant to this subsection in its decision to approve or deny 233
an application for change of ownership under this part and part 234
II of chapter 408. 235
(d) If a claim is pending in arbitration at the time that 236
the application for change of ownership is filed, the claimant 237
may file a petition to enjoin the transfer in circuit court. 238
239
As used in this subsection, "claimant" means a resident, the 240
resident's family, or a personal representative who has 241
notified the licensee or facility of a potential claim by 242
written notice of intent or who has initiated an action, claim, 243
or arbitration proceeding against the licensee or facility. 244
Section 5. Paragraphs (g), (n), and (r) of subsection (1) 245
of section 400.141, Florida Statutes, are amended to read: 246
400.141 Administration and management of nursing home 247
facilities.— 248
(1) Every licensed facility shall comply with all 249
applicable standards and rules of the agency and shall: 250
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(g) If the facility has a standard license, exceeds the 251
minimum required hours of direct care provided by licensed 252
nurses nursing and certified nursing assistants assistant 253
direct care per resident per day, and is part of a continuing 254
care facility licensed under chapter 651 or is a retirement 255
community that offers other services pursuant to part III of 256
this chapter or part I or part III of chapter 429 on a single 257
campus, be allowed to share programming and staff. At the time 258
of inspection, a continuing care facility or retirement 259
community that uses this option must demonstrate through 260
staffing records that minimum staffing requirements for the 261
facility were met. Licensed nurses and certified nursing 262
assistants who work in the facility may be used to provide 263
services elsewhere on campus if the facility exceeds the 264
minimum number of direct care hours required per resident per 265
day and the total number of res idents receiving direct care 266
services from a licensed nurse or a certified nursing assistant 267
does not cause the facility to violate the staffing ratios 268
required under s. 400.23(3)(b) s. 400.23(3)(a). Compliance with 269
the minimum staffing ratios must be base d on the total number 270
of residents receiving direct care services, regardless of 271
where they reside on campus. If the facility receives a 272
conditional license, it may not share staff until the 273
conditional license status ends. This paragraph does not 274
restrict the agency's authority under federal or state law to 275
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require additional staff if a facility is cited for 276
deficiencies in care which are caused by an insufficient number 277
of certified nursing assistants or licensed nurses. The agency 278
may adopt rules for the documentation necessary to determine 279
compliance with this provision. 280
(n) Comply with state minimum -staffing requirements: 281
1. A facility that has failed to comply with state 282
minimum-staffing requirements for 48 2 consecutive hours days 283
is prohibited from accepting new admissions until the facility 284
has achieved the minimum -staffing requirements for 6 285
consecutive days. For the purposes of this subparagraph, any 286
person who was a resident of the facility and was absent from 287
the facility for the purpose of r eceiving medical care at a 288
separate location or was on a leave of absence is not 289
considered a new admission. Failure by the facility to impose 290
such an admissions moratorium is subject to a $1,000 fine. 291
2. A facility that does not have a conditional licen se may 292
be cited for failure to comply with the standards in s. 293
400.23(3)(b)1.b. and c. s. 400.23(3)(a)1.b. and c. only if it 294
has failed to meet those standards for 48 on 2 consecutive 295
hours days or if it has failed to meet at least 97 percent of 296
those standards on any one day. 297
3. A facility that has a conditional license must be in 298
compliance with the standards in s. 400.23(3)(b) s. 299
400.23(3)(a) at all times. 300
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(r) Maintain in the medical record for each resident a 301
daily chart of direct care certified nursing assistant services 302
provided to the resident. The direct care staff certified 303
nursing assistant who is caring for the resident must complete 304
this record by the end of his or her shift. This record must 305
indicate assistance with activities of daily livin g, assistance 306
with eating, and assistance with drinking, and must record each 307
offering of nutrition and hydration for those residents whose 308
plan of care or assessment indicates a risk for malnutrition or 309
dehydration. 310
Section 6. This act shall take effe ct upon becoming a law. 311