Florida Senate - 2022 SB 804 By Senator Albritton 26-00753A-22 2022804__ 1 A bill to be entitled 2 An act relating to modernization of nursing home 3 facility staffing; amending s. 400.23, F.S.; defining 4 terms; specifying functions that do not constitute 5 direct care staffing hours for purposes of required 6 nursing home staffing ratios; revising nursing home 7 staffing requirements; requiring nursing home 8 facilities to maintain and report staffing information 9 consistent with federal law; amending s. 400.141, 10 F.S.; conforming cross-references and provisions to 11 changes made by the act; providing an effective date. 12 13 Be It Enacted by the Legislature of the State of Florida: 14 15 Section 1.Subsection (3) of section 400.23, Florida 16 Statutes, is amended to read: 17 400.23Rules; evaluation and deficiencies; licensure 18 status. 19 (3)(a)1.As used in this subsection, the term: 20 a.Average monthly hours of direct care per resident per 21 day means the total number of direct care service hours 22 provided by direct care staff in a month at the facility divided 23 by the sum of each daily resident census for that month. 24 b.Direct care staff means individuals who, through 25 interpersonal contact with residents or resident care 26 management, provide care and services to allow residents to 27 attain or maintain the highest practicable physical, mental, and 28 psychosocial well-being. The term includes, but is not limited 29 to, disciplines and professions that must be reported in 30 accordance with 42 C.F.R. s. 483.70(q) and all of the following: 31 (I)Licensed nurses. 32 (II)Certified nursing assistants. 33 (III)Physical therapy staff. 34 (IV)Occupational therapy staff. 35 (V)Speech therapy staff. 36 (VI)Respiratory therapy staff. 37 (VII)Activities staff. 38 (VIII)Social services staff. 39 (IX)Mental health service workers. 40 41 The term does not include individuals whose primary duty is 42 maintaining the physical environment of the facility, including, 43 but not limited to, food preparation, laundry, and housekeeping. 44 c.Non-nursing direct care staff means direct care staff 45 who are not licensed to practice nursing under part I of chapter 46 464. 47 2.For purposes of this subsection, direct care staffing 48 hours do not include time spent on nursing administration, staff 49 development, staffing coordination, and the administrative 50 portion of the minimum data set and care plan coordination for 51 Medicaid. 52 (b)1.The agency shall adopt rules providing minimum 53 staffing requirements for nursing home facilities. These 54 requirements must include, for each facility: 55 a.A minimum monthly weekly average of certified nursing 56 assistant and licensed nursing staffing combined of 3.6 hours of 57 direct care per resident per day, as determined by the facility 58 assessment staffing needs in accordance with 42 C.F.R. s. 59 483.70(e). As used in this sub-subparagraph, a week is defined 60 as Sunday through Saturday. 61 b.A minimum certified nursing assistant staffing of 2.5 62 hours of direct care by non-nursing direct care staff per 63 resident per day. A facility may not staff below a ratio of one 64 certified nursing assistant per 20 residents. 65 c.A minimum licensed nursing staffing of 1.0 hour of 66 direct care by licensed nurses per resident per day. A facility 67 may not staff below a ratio of one licensed nurse per 40 68 residents. 69 2.Nursing assistants employed under s. 400.211(2) may be 70 included in computing the hours of non-nursing direct care 71 provided to residents and may be included in computing the 72 staffing ratio for certified nursing assistants if their job 73 responsibilities include only nursing-assistant-related duties. 74 3.Each nursing home facility must document compliance with 75 staffing standards as required under this paragraph and post 76 daily the names of licensed nurses and certified nursing 77 assistants staff on duty for the benefit of facility residents 78 and the public. Facilities must maintain records of staffing in 79 accordance with 42 C.F.R. s. 483.35(g) and must report staffing 80 in accordance with 42 C.F.R. s. 483.70(q). 81 4.The agency must shall recognize the use of licensed 82 nurses for compliance with minimum staffing requirements for 83 non-nursing direct care staff certified nursing assistants if 84 the nursing home facility otherwise meets the minimum staffing 85 requirements for licensed nurses and the licensed nurses are 86 performing the duties of a certified nursing assistant. Unless 87 otherwise approved by the agency, licensed nurses counted toward 88 the minimum staffing requirements for non-nursing direct care 89 staff certified nursing assistants must exclusively perform the 90 duties of a certified nursing assistant for the entire shift and 91 not also be counted toward the minimum staffing requirements for 92 licensed nurses. If the agency approved a facilitys request to 93 use a licensed nurse to perform both licensed nursing and 94 certified nursing assistant duties, the facility must allocate 95 the amount of staff time specifically spent on certified nursing 96 assistant duties for the purpose of documenting compliance with 97 minimum staffing requirements for non-nursing direct care staff 98 certified and licensed nursing staff. The hours of a licensed 99 nurse with dual job responsibilities may not be counted twice. 100 (c)(b)Paid feeding assistants and non-nursing direct care 101 nonnursing staff who have successfully completed the feeding 102 assistant training program under s. 400.141(1)(v) and who 103 provide providing eating assistance to residents shall not count 104 toward compliance with minimum staffing standards. 105 (d)(c)Licensed practical nurses licensed under chapter 464 106 who provide are providing nursing services in nursing home 107 facilities under this part may supervise the activities of other 108 licensed practical nurses, certified nursing assistants, and 109 other unlicensed personnel providing services in such facilities 110 in accordance with rules adopted by the Board of Nursing. 111 Section 2.Paragraphs (g), (n), and (r) of subsection (1) 112 of section 400.141, Florida Statutes, are amended to read: 113 400.141Administration and management of nursing home 114 facilities. 115 (1)Every licensed facility shall comply with all 116 applicable standards and rules of the agency and shall: 117 (g)If the facility has a standard license, exceeds the 118 minimum required hours of direct care provided by licensed 119 nurses nursing and non-nursing certified nursing assistant 120 direct care staff per resident per day, and is part of a 121 continuing care facility licensed under chapter 651 or a 122 retirement community that offers other services pursuant to part 123 III of this chapter or part I or part III of chapter 429 on a 124 single campus, be allowed to share programming and staff. At the 125 time of inspection, a continuing care facility or retirement 126 community that uses this option must demonstrate through 127 staffing records that minimum staffing requirements for the 128 facility were met. Licensed nurses and non-nursing direct care 129 staff certified nursing assistants who work in the facility may 130 be used to provide services elsewhere on campus if the facility 131 exceeds the minimum number of direct care hours required per 132 resident per day and the total number of residents receiving 133 direct care services from a licensed nurse or non-nursing direct 134 care staff a certified nursing assistant does not cause the 135 facility to violate the staffing ratios required under s. 136 400.23(3)(b) s. 400.23(3)(a). Compliance with the minimum 137 staffing ratios must be based on the total number of residents 138 receiving direct care services, regardless of where they reside 139 on campus. If the facility receives a conditional license, it 140 may not share staff until the conditional license status ends. 141 This paragraph does not restrict the agencys authority under 142 federal or state law to require additional staff if a facility 143 is cited for deficiencies in care which are caused by an 144 insufficient number of certified nursing assistants or licensed 145 nurses. The agency may adopt rules for the documentation 146 necessary to determine compliance with this provision. 147 (n)Comply with state minimum-staffing requirements: 148 1.A facility that has failed to comply with state minimum 149 staffing requirements for 2 consecutive days is prohibited from 150 accepting new admissions until the facility has achieved the 151 minimum-staffing requirements for 6 consecutive days. For the 152 purposes of this subparagraph, any person who was a resident of 153 the facility and was absent from the facility for the purpose of 154 receiving medical care at a separate location or was on a leave 155 of absence is not considered a new admission. Failure by the 156 facility to impose such an admissions moratorium is subject to a 157 $1,000 fine. 158 2.A facility that does not have a conditional license may 159 be cited for failure to comply with the standards in s. 160 400.23(3)(b)1.b. and c. s. 400.23(3)(a)1.b. and c. only if it 161 has failed to meet those standards on 2 consecutive days or if 162 it has failed to meet at least 97 percent of those standards on 163 any one day. 164 3.A facility that has a conditional license must be in 165 compliance with the standards in s. 400.23(3)(b) s. 400.23(3)(a) 166 at all times. 167 (r)Maintain in the medical record for each resident a 168 daily chart of direct care certified nursing assistant services 169 provided to the resident. The direct care staff certified 170 nursing assistant who is caring for the resident must complete 171 this record by the end of his or her shift. This record must 172 indicate assistance with activities of daily living, assistance 173 with eating, and assistance with drinking, and any other direct 174 care provided and must record each offering of nutrition and 175 hydration for those residents whose plan of care or assessment 176 indicates a risk for malnutrition or dehydration. 177 Section 3.This act shall take effect July 1, 2022.