Florida Senate - 2022 CS for SB 804 By the Committee on Health Policy; and Senator Albritton 588-02938-22 2022804c1 1 A bill to be entitled 2 An act relating to modernization of nursing home 3 facility staffing; amending s. 400.021, F.S.; revising 4 the definition of the term resident care plan; 5 amending s. 400.23, F.S.; defining the terms direct 6 care staff and facility assessment; specifying 7 functions that do not constitute direct care staffing 8 hours for purposes of required nursing home staffing 9 ratios; revising nursing home staffing requirements; 10 requiring nursing home facilities to maintain staffing 11 records for a specified time and report staffing 12 information consistent with federal law; providing 13 construction; providing that evidence of compliance 14 with state minimum staffing requirements is not 15 admissible as evidence for compliance with specified 16 provisions of federal law; providing that eating 17 assistance to residents provided by certain direct 18 care staff counts toward certain minimum direct care 19 staffing requirements; authorizing the Agency for 20 Health Care Administration to adopt rules; amending s. 21 400.0234, F.S.; providing that certain forms filed 22 with the agency are not confidential or exempt and may 23 be discoverable and admissible in civil or 24 administrative proceedings; amending s. 400.024, F.S.; 25 providing that an unsatisfied or undischarged adverse 26 final judgment in connection with a nursing home 27 facility becomes the responsibility and liability of a 28 new owner if ownership of the facility is transferred; 29 requiring a licensee to provide written notice to any 30 pending claimants or their attorneys of record within 31 a specified timeframe after filing a change of 32 ownership application with the agency; providing 33 requirements for the notice; providing that claimants 34 may object to the application within a specified 35 timeframe under certain circumstances; requiring the 36 agency to consider any such objections in its 37 decision; providing for the filing of such objections 38 in circuit court under certain circumstances; defining 39 the term claimant; amending s. 400.141, F.S.; 40 conforming cross-references and provisions to changes 41 made by the act; revising provisions related to 42 moratoriums on new admissions for facilities that fail 43 to comply with minimum staffing requirements; deleting 44 a certain fine; creating the Nursing Home 45 Sustainability Task Force; providing duties and 46 membership of the task force; requiring the task force 47 to submit its recommendations to the agency, the 48 Governor, and the Legislature by a specified date; 49 amending s. 651.118, F.S.; making a technical change; 50 providing an effective date. 51 52 Be It Enacted by the Legislature of the State of Florida: 53 54 Section 1.Subsection (18) of section 400.021, Florida 55 Statutes, is amended to read: 56 400.021Definitions.When used in this part, unless the 57 context otherwise requires, the term: 58 (18)Resident care plan means a written, comprehensive 59 person-centered care plan developed in accordance with 42 C.F.R. 60 s. 483.21(b) which is, maintained, and reviewed at least not 61 less than quarterly by a registered nurse, with participation 62 from other facility staff and the resident or his or her 63 designee or legal representative. The resident care plan must 64 include, which includes a comprehensive assessment of the needs 65 of an individual resident; the type and frequency of services 66 required to provide the necessary care for the resident to 67 attain or maintain the highest practicable physical, mental, and 68 psychosocial well-being; a listing of services provided within 69 or outside the facility to meet those needs; and an explanation 70 of service goals. 71 Section 2.Subsection (3) of section 400.23, Florida 72 Statutes, is amended to read: 73 400.23Rules; evaluation and deficiencies; licensure 74 status. 75 (3)(a)1.As used in this subsection, the term: 76 a.Direct care staff means individuals who, through 77 interpersonal contact with residents or resident care 78 management, provide care and services to allow residents to 79 attain or maintain the highest practicable physical, mental, and 80 psychosocial well-being. The term includes, but is not limited 81 to, disciplines and professions that must be reported in 82 accordance with 42 C.F.R. s. 483.70(q) in the following 83 categories of direct care services: 84 (I)Physician. 85 (II)Nursing. 86 (III)Pharmacy. 87 (IV)Dietary. 88 (V)Therapeutic. 89 (VI)Dental. 90 (VII)Podiatry. 91 (VIII)Mental health. 92 93 The term does not include individuals whose primary duty is 94 maintaining the physical environment of the facility, including, 95 but not limited to, food preparation, laundry, and housekeeping. 96 b.Facility assessment means a process to determine the 97 staff competencies that are necessary to provide the level and 98 types of care needed for the facilitys resident population 99 considering the types of diseases, conditions, physical and 100 cognitive disabilities, overall acuity, and other pertinent 101 factors that are present within that resident population. 102 Additional requirements for conducting a facility assessment 103 must be performed in accordance with 42 C.F.R. s. 483.70(e). 104 2.For purposes of this subsection, direct care staffing 105 hours do not include time spent on nursing administration, staff 106 development, staffing coordination, and the administrative 107 portion of the minimum data set and care plan coordination for 108 Medicaid. 109 (b)1.Each facility must determine its direct care staffing 110 needs based on the facility assessment and the individual needs 111 of each resident based on the residents care plan. At a 112 minimum, staffing The agency shall adopt rules providing minimum 113 staffing requirements for nursing home facilities. These 114 requirements must include, for each facility: 115 a.A minimum weekly average of certified nursing assistant 116 and licensed nursing staffing combined of 3.6 hours of direct 117 care per resident per day. As used in this subparagraph sub 118 subparagraph, a week is defined as Sunday through Saturday. 119 b.A minimum certified nursing assistant staffing of 2.0 120 2.5 hours of direct care by a certified nursing assistant per 121 resident per day. A facility may not staff below a ratio of one 122 certified nursing assistant per 20 residents. 123 c.A minimum licensed nursing staffing of 1.0 hour of 124 direct care by a licensed nurse per resident per day. A facility 125 may not staff below a ratio of one licensed nurse per 40 126 residents. 127 2.Nursing assistants employed under s. 400.211(2) may be 128 included in computing the hours of direct care provided by 129 certified nursing assistants and may be included in computing 130 the staffing ratio for certified nursing assistants if their job 131 responsibilities include only nursing-assistant-related duties. 132 3.Each nursing home facility must document compliance with 133 staffing standards as required under this paragraph and post 134 daily the names of licensed nurses and certified nursing 135 assistants staff on duty for the benefit of facility residents 136 and the public. Facilities must maintain the records documenting 137 compliance with minimum staffing standards for a period of 5 138 years and must report staffing in accordance with 42 C.F.R. s. 139 483.70(q). 140 4.The agency must shall recognize the use of licensed 141 nurses for compliance with minimum staffing requirements for 142 certified nursing assistants if the nursing home facility 143 otherwise meets the minimum staffing requirements for licensed 144 nurses and the licensed nurses are performing the duties of a 145 certified nursing assistant. Unless otherwise approved by the 146 agency, licensed nurses counted toward the minimum staffing 147 requirements for certified nursing assistants must exclusively 148 perform the duties of a certified nursing assistant for the 149 entire shift and not also be counted toward the minimum staffing 150 requirements for licensed nurses. If the agency approved a 151 facilitys request to use a licensed nurse to perform both 152 licensed nursing and certified nursing assistant duties, the 153 facility must allocate the amount of staff time specifically 154 spent on certified nursing assistant duties for the purpose of 155 documenting compliance with minimum staffing requirements for 156 certified and licensed nursing staff. The hours of a licensed 157 nurse with dual job responsibilities may not be counted twice. 158 5.The nurse staffing requirements imposed in this 159 paragraph are minimum nurse staffing requirements for nursing 160 home facilities. Evidence that a facility complied with the 161 minimum direct care staffing requirements under subparagraph 1. 162 is not admissible as evidence of compliance with the nursing 163 services requirements under 42 C.F.R. s. 483.35 or 42 C.F.R. s. 164 483.70. 165 (c)(b)Paid feeding assistants and direct care staff, other 166 than certified nursing assistants, who have successfully 167 completed the feeding assistant training program under s. 168 400.141(1)(v) and who provide nonnursing staff providing eating 169 assistance to residents shall not count toward compliance with 170 overall direct care minimum staffing hours but not the hours of 171 direct care required for certified nursing assistants or 172 licensed nurses standards. 173 (d)(c)Licensed practical nurses licensed under chapter 464 174 who provide are providing nursing services in nursing home 175 facilities under this part may supervise the activities of other 176 licensed practical nurses, certified nursing assistants, and 177 other unlicensed personnel providing services in such facilities 178 in accordance with rules adopted by the Board of Nursing. 179 (e)The agency may adopt rules to implement this 180 subsection. 181 Section 3.Present subsection (2) of section 400.0234, 182 Florida Statutes, is redesignated as subsection (3), and a new 183 subsection (2) is added to that section, to read: 184 400.0234Availability of facility records for investigation 185 of residents rights violations and defenses; penalty. 186 (2)Forms filed with the agency pursuant to s. 408.061(5) 187 and (6) are not confidential or exempt from the provisions of s. 188 119.07(1) and s. 24(a), Art. I of the State Constitution and may 189 be discoverable and admissible in a civil action under this part 190 or an administrative action under this part or part II of 191 chapter 408. 192 Section 4.Subsection (4) of section 400.024, Florida 193 Statutes, is amended to read: 194 400.024Failure to satisfy a judgment or settlement 195 agreement. 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 achieved.; and 201 (b)If a change of ownership application for the facility 202 at issue is filed submitted by the licensee, by a person or 203 entity identified as having a controlling interest in the 204 licensee, or by a related party, the unsatisfied or undischarged 205 adverse final judgment under subsection (1) becomes the 206 responsibility and liability of the transferee, and the agency 207 shall deny the change of ownership application unless compliance 208 with this section is achieved. 209 (c)If a change of ownership application for the facility 210 at issue is filed by the licensee, by a person or entity 211 identified as having a controlling interest in the licensee, or 212 by a related party, then: 213 1.The licensee or transferor must provide written notice 214 of the filing of the application to each pending claimant or the 215 claimants attorney of record, if applicable, within 14 days 216 after the date the application is filed with the agency. 217 2.The written notice must be provided by certified mail, 218 return receipt requested, or other method that provides 219 verification of receipt. 220 3.A claimant has 30 days after the date of receipt of the 221 written notice to object to the application if the claimant has 222 reason to believe that the approval of the application would 223 facilitate a fraudulent transfer or allow the transferor to 224 avoid financial responsibility for the claimants pending claim. 225 4.The agency must consider any objection brought pursuant 226 to this subsection in its decision to approve or deny an 227 application for change of ownership under this part and part II 228 of chapter 408. 229 5.If a claim is pending in arbitration at the time that 230 the application for change of ownership is filed, the claimant 231 may file a petition to enjoin the transfer in circuit court. 232 6.As used in this paragraph, claimant means a resident 233 or the residents family or personal representative who has 234 notified the licensee or facility of a potential claim by notice 235 of intent letter or who has initiated an action, claim, or 236 arbitration proceeding against the licensee or facility. 237 Section 5.Paragraphs (g), (n), and (r) of subsection (1) 238 of section 400.141, Florida Statutes, are amended to read: 239 400.141Administration and management of nursing home 240 facilities. 241 (1)Every licensed facility shall comply with all 242 applicable standards and rules of the agency and shall: 243 (g)If the facility has a standard license, exceeds the 244 minimum required hours of direct care provided by licensed 245 nurses nursing and certified nursing assistants assistant direct 246 care per resident per day, and is part of a continuing care 247 facility licensed under chapter 651 or is a retirement community 248 that offers other services pursuant to part III of this chapter 249 or part I or part III of chapter 429 on a single campus, be 250 allowed to share programming and staff. At the time of 251 inspection, a continuing care facility or retirement community 252 that uses this option must demonstrate through staffing records 253 that minimum staffing requirements for the facility were met. 254 Licensed nurses and certified nursing assistants who work in the 255 facility may be used to provide services elsewhere on campus if 256 the facility exceeds the minimum number of direct care hours 257 required per resident per day and the total number of residents 258 receiving direct care services from a licensed nurse or a 259 certified nursing assistant does not cause the facility to 260 violate the staffing ratios required under s. 400.23(3)(b) s. 261 400.23(3)(a). Compliance with the minimum staffing ratios must 262 be based on the total number of residents receiving direct care 263 services, regardless of where they reside on campus. If the 264 facility receives a conditional license, it may not share staff 265 until the conditional license status ends. This paragraph does 266 not restrict the agencys authority under federal or state law 267 to require additional staff if a facility is cited for 268 deficiencies in care which are caused by an insufficient number 269 of certified nursing assistants or licensed nurses. The agency 270 may adopt rules for the documentation necessary to determine 271 compliance with this provision. 272 (n)Comply with state minimum-staffing requirements: 273 1.The agency may impose a moratorium on new admissions for 274 a facility that has failed for 48 consecutive hours to comply 275 with the minimum hours of direct care required to be provided by 276 a licensed nurse or certified nursing assistant. The moratorium 277 may be imposed until the facility is able to document compliance 278 with the minimum direct care hours required per resident per day 279 for licensed nurses and certified nursing assistants state 280 minimum-staffing requirements for 2 consecutive days is 281 prohibited from accepting new admissions until the facility has 282 achieved the minimum-staffing requirements for 6 consecutive 283 days. For the purposes of this subparagraph, any person who was 284 a resident of the facility and was absent from the facility for 285 the purpose of receiving medical care at a separate location or 286 was on a leave of absence is not considered a new admission. 287 Failure by the facility to impose such an admissions moratorium 288 is subject to a $1,000 fine. 289 2.A facility that has a standard does not have a 290 conditional license may be cited for failure to comply with the 291 standards in s. 400.23(3)(b)1.b. and c. s. 400.23(3)(a)1.b. and 292 c. only if it has failed to meet those standards on 2 293 consecutive days or if it has failed to meet at least 97 percent 294 of those standards on any one day. 295 3.A facility that has a conditional license must be in 296 compliance with the standards in s. 400.23(3)(b) s. 400.23(3)(a) 297 at all times. 298 (r)Maintain in the medical record for each resident a 299 daily chart of direct care certified nursing assistant services 300 provided to the resident. The direct care staff certified 301 nursing assistant who is caring for the resident must complete 302 this record by the end of his or her shift. This record must 303 indicate assistance with activities of daily living, assistance 304 with eating, and assistance with drinking, and must record each 305 offering of nutrition and hydration for those residents whose 306 plan of care or assessment indicates a risk for malnutrition or 307 dehydration. 308 Section 6.Nursing Home Sustainability Task Force.There is 309 created the Nursing Home Sustainability Task Force. The task 310 force shall review, analyze, and make recommendations specific 311 to the sustainability of the states model of providing quality 312 nursing home care. The task force shall consist of 313 representatives of nursing home providers and other interested 314 stakeholders. The task force shall review all areas of the 315 provision of health care services to residents, regulation, 316 liability, licensing, quality initiatives, and the availability 317 of quality, affordable, and accessible health care. The task 318 force shall make any recommendations to the Agency for Health 319 Care Administration, the Governor, the President of the Senate, 320 and the Speaker of the House of Representatives by January 1, 321 2025. 322 Section 7.Subsection (6) of section 651.118, Florida 323 Statutes, is amended to read: 324 651.118Agency for Health Care Administration; certificates 325 of need; sheltered beds; community beds. 326 (6)Unless the provider already has a component that is to 327 be a part of the continuing care facility and that is licensed 328 under chapter 395, part II of chapter 400, or part I of chapter 329 429 at the time of construction of the continuing care facility, 330 the provider must construct the non-nursing nonnursing home 331 portion of the facility and the nursing home portion of the 332 facility at the same time. If a provider constructs less than 333 the number of residential units approved in the certificate of 334 authority, the number of licensed sheltered nursing home beds 335 shall be reduced by a proportionate share. 336 Section 8.This act shall take effect upon becoming a law.