Florida Senate - 2022 CS for CS for SB 804 By the Committees on Rules; and Health Policy; and Senator Albritton 595-03642-22 2022804c2 1 A bill to be entitled 2 An act relating to nursing homes; amending s. 400.021, 3 F.S.; revising the definition of the term resident 4 care plan; amending s. 400.23, F.S.; defining the 5 terms direct care staff and facility assessment; 6 specifying functions that do not constitute direct 7 care staffing hours for purposes of required nursing 8 home staffing ratios; revising nursing home staffing 9 requirements; requiring nursing home facilities to 10 maintain staffing records for a specified time and 11 report staffing information consistent with federal 12 law; providing that evidence of compliance with state 13 minimum staffing requirements is not admissible as 14 evidence for compliance with specified provisions of 15 federal law; providing that eating assistance to 16 residents provided by certain direct care staff counts 17 toward certain minimum direct care staffing 18 requirements; authorizing the Agency for Health Care 19 Administration to adopt rules; amending s. 400.0234, 20 F.S.; providing that certain information submitted to 21 the agency is discoverable and may be admissible in 22 civil and administrative proceedings; amending s. 23 400.024, F.S.; providing that an unsatisfied or 24 undischarged adverse final judgment in connection with 25 a nursing home facility becomes the responsibility and 26 liability of a new owner if ownership of the facility 27 is transferred; requiring a licensee to provide 28 written notice to any pending claimants or their 29 attorneys of record within a specified timeframe after 30 filing a change of ownership application with the 31 agency; providing requirements for the notice; 32 providing that claimants may object to the application 33 within a specified timeframe under certain 34 circumstances; requiring the agency to consider any 35 such objections in its decision; providing for the 36 filing of such objections in circuit court under 37 certain circumstances; defining the term claimant; 38 amending s. 400.141, F.S.; conforming cross-references 39 and provisions to changes made by the act; revising 40 provisions related to facilities that fail to comply 41 with minimum staffing requirements; providing an 42 effective date. 43 44 Be It Enacted by the Legislature of the State of Florida: 45 46 Section 1.Subsection (18) of section 400.021, Florida 47 Statutes, is amended to read: 48 400.021Definitions.When used in this part, unless the 49 context otherwise requires, the term: 50 (18)Resident care plan means a written, comprehensive 51 person-centered care plan developed in accordance with 42 C.F.R. 52 s. 483.21(b) by an interdisciplinary team within 7 days after 53 completion of a comprehensive assessment and with participation 54 by the resident or the residents designee. The resident care 55 plan must be reviewed and revised after each comprehensive 56 assessment, which may be a new admission assessment, an annual 57 assessment, or an assessment after a significant change in 58 status, and after a quarterly review assessment. A resident care 59 plan includes measurable objectives and timeframes to meet the 60 residents medical, nursing, mental, and psychosocial needs and 61 preferences, and must describe the services to be furnished, 62 maintained, and reviewed not less than quarterly by a registered 63 nurse, with participation from other facility staff and the 64 resident or his or her designee or legal representative, which 65 includes a comprehensive assessment of the needs of an 66 individual resident; the type and frequency of services required 67 to provide the necessary care for the resident to attain or 68 maintain the residents highest practicable physical, mental, 69 and psychosocial well-being; a listing of services provided 70 within or outside the facility to meet those needs; and an 71 explanation of service goals. 72 Section 2.Subsection (3) of section 400.23, Florida 73 Statutes, is amended to read: 74 400.23Rules; evaluation and deficiencies; licensure 75 status. 76 (3)(a)1.As used in this subsection, the term: 77 a.Direct care staff means persons who, through 78 interpersonal contact with residents or resident care 79 management, provide care and services to allow residents to 80 attain or maintain the highest practicable physical, mental, and 81 psychosocial well-being, including, but not limited to, 82 disciplines and professions that must be reported in accordance 83 with 42 C.F.R. s. 483.70(q) in the categories of direct care 84 services of nursing, dietary, therapeutic, and mental health. 85 The term does not include a person whose primary duty is 86 maintaining the physical environment of the facility, including, 87 but not limited to, food preparation, laundry, and housekeeping. 88 b.Facility assessment means a process, performed in 89 accordance with 42 C.F.R. s. 483.70(e), to determine the staff 90 competencies necessary to provide the level and types of care 91 needed for the facilitys resident population, considering the 92 types of diseases, conditions, physical and cognitive 93 disabilities, overall acuity, and other factors pertinent to 94 that resident population. 95 2.For purposes of this subsection, direct care staffing 96 hours do not include time spent on nursing administration, 97 activities program administration, staff development, staffing 98 coordination, and the administrative portion of the minimum data 99 set and care plan coordination for Medicaid. 100 (b)1.Each facility must determine its direct care staffing 101 needs based on the facility assessment and the individual needs 102 of a resident based on the residents care plan. At a minimum, 103 staffing The agency shall adopt rules providing minimum staffing 104 requirements for nursing home facilities. These requirements 105 must include the following, for each facility: 106 a.A minimum weekly average of certified nursing assistant 107 and licensed nursing staffing combined of 3.6 hours of direct 108 care by direct care staff per resident per day. As used in this 109 sub-subparagraph, a week is defined as Sunday through Saturday. 110 b.A minimum certified nursing assistant staffing of 2.0 111 2.5 hours of direct care by a certified nursing assistant per 112 resident per day. A facility may not staff below one certified 113 nursing assistant per 20 residents. 114 c.A minimum licensed nursing staffing of 1.0 hour of 115 direct care by a licensed nurse per resident per day. A facility 116 may not staff below one licensed nurse per 40 residents. 117 2.Nursing assistants employed under s. 400.211(2) may be 118 included in computing the hours of direct care provided by 119 certified nursing assistants and may be included in computing 120 the staffing ratio for certified nursing assistants if their job 121 responsibilities include only nursing-assistant-related duties. 122 3.Each nursing home facility must document compliance with 123 staffing standards as required under this paragraph and post 124 daily the names of licensed nurses and certified nursing 125 assistants staff on duty for the benefit of facility residents 126 and the public. Facilities must maintain the records documenting 127 compliance with minimum staffing standards for a period of 5 128 years and must report staffing in accordance with 42 C.F.R. s. 129 483.70(q). 130 4.The agency must shall recognize the use of licensed 131 nurses for compliance with minimum staffing requirements for 132 certified nursing assistants if the nursing home facility 133 otherwise meets the minimum staffing requirements for licensed 134 nurses and the licensed nurses are performing the duties of a 135 certified nursing assistant. Unless otherwise approved by the 136 agency, licensed nurses counted toward the minimum staffing 137 requirements for certified nursing assistants must exclusively 138 perform the duties of a certified nursing assistant for the 139 entire shift and not also be counted toward the minimum staffing 140 requirements for licensed nurses. If the agency approved a 141 facilitys request to use a licensed nurse to perform both 142 licensed nursing and certified nursing assistant duties, the 143 facility must allocate the amount of staff time specifically 144 spent on certified nursing assistant duties for the purpose of 145 documenting compliance with minimum staffing requirements for 146 certified and licensed nursing staff. The hours of a licensed 147 nurse with dual job responsibilities may not be counted twice. 148 5.Evidence that a facility complied with the minimum 149 direct care staffing requirements under subparagraph 1. is not 150 admissible as evidence of compliance with the nursing services 151 requirements under 42 C.F.R. s. 483.35 or 42 C.F.R. s. 483.70. 152 (c)(b)Paid feeding assistants and direct care nonnursing 153 staff, other than certified nursing assistants and licensed 154 nurses, who have successfully completed the feeding assistant 155 training program under s. 400.141(1)(v) and who provide 156 providing eating assistance to residents shall not count toward 157 compliance with overall direct care minimum staffing hours but 158 not the hours of direct care required for certified nursing 159 assistants or licensed nurses. Time spent by certified nursing 160 assistants or licensed nurses on providing eating assistance to 161 residents shall count toward the hours of direct care required 162 for certified nursing assistants or licensed nurses standards. 163 (d)(c)Licensed practical nurses licensed under chapter 464 164 who provide are providing nursing services in nursing home 165 facilities under this part may supervise the activities of other 166 licensed practical nurses, certified nursing assistants, and 167 other unlicensed personnel providing services in such facilities 168 in accordance with rules adopted by the Board of Nursing. 169 (e)The agency may adopt rules to implement this 170 subsection. 171 Section 3.Present subsection (2) of section 400.0234, 172 Florida Statutes, is redesignated as subsection (3), and a new 173 subsection (2) is added to that section, to read: 174 400.0234Availability of facility records for investigation 175 of residents rights violations and defenses; penalty. 176 (2)Information submitted pursuant to s. 408.061(5) and (6) 177 is discoverable and may be admissible in a civil action or an 178 administrative action under this part or part II of chapter 408. 179 Section 4.Subsection (4) of section 400.024, Florida 180 Statutes, is amended, and subsection (5) is added to that 181 section, to read: 182 400.024Failure to satisfy a judgment or settlement 183 agreement; required notification to claimants. 184 (4)If, After the agency is placed on notice pursuant to 185 subsection (2), the following applies and: 186 (a)If the license is subject to renewal, the agency may 187 deny the license renewal unless compliance with this section is 188 achieved.; and 189 (b)If a change of ownership application for the facility 190 at issue is filed submitted by the licensee, by a person or 191 entity identified as having a controlling interest in the 192 licensee, or by a related party, the agency shall deny the 193 change of ownership application unless compliance with this 194 section is achieved. 195 (c)If an adverse final judgment under subsection (1) is 196 entered but payment is not yet due and a change of ownership 197 application for the facility at issue is submitted by the 198 licensee, by a person or entity identified as having a 199 controlling interest in the licensee, or by a related party, the 200 adverse final judgment becomes the responsibility and liability 201 of the transferee if the agency approves the change of ownership 202 application. 203 (5)If a change of ownership application for the facility 204 at issue is filed by the licensee, by a person or entity 205 identified as having a controlling interest in the licensee, or 206 by a related party, then: 207 (a)The licensee or transferor must provide written notice 208 of the filing of the application to each pending claimant or the 209 claimants attorney of record, if applicable. The written notice 210 must be provided within 14 days after the date the application 211 is filed with the agency. 212 (b)The written notice must be provided by certified mail, 213 return receipt requested, or other method that provides 214 verification of receipt. 215 (c)A claimant has 30 days after the date of receipt of the 216 written notice to object to the application if the claimant has 217 reason to believe that the approval of the application would 218 facilitate a fraudulent transfer or allow the transferor to 219 avoid financial responsibility for the claimants pending claim. 220 (d)The agency must consider any objection brought pursuant 221 to this subsection in its decision to approve or deny an 222 application for change of ownership under this part and part II 223 of chapter 408. 224 (e)If a claim is pending in arbitration at the time that 225 the application for change of ownership is filed, the claimant 226 may file a petition to enjoin the transfer in circuit court. 227 (f)As used in this subsection, the term claimant means a 228 resident or the residents family or personal representative who 229 has notified the licensee or facility of a potential claim by 230 written notice of intent or who has initiated an action, claim, 231 or arbitration proceeding against the licensee or facility. 232 Section 5.Paragraphs (g), (n), and (r) of subsection (1) 233 of section 400.141, Florida Statutes, are amended to read: 234 400.141Administration and management of nursing home 235 facilities. 236 (1)Every licensed facility shall comply with all 237 applicable standards and rules of the agency and shall: 238 (g)If the facility has a standard license, exceeds the 239 minimum required hours of direct care provided by licensed 240 nurses nursing and certified nursing assistants assistant direct 241 care per resident per day, and is part of a continuing care 242 facility licensed under chapter 651 or is a retirement community 243 that offers other services pursuant to part III of this chapter 244 or part I or part III of chapter 429 on a single campus, be 245 allowed to share programming and staff. At the time of 246 inspection, a continuing care facility or retirement community 247 that uses this option must demonstrate through staffing records 248 that minimum staffing requirements for the facility were met. 249 Licensed nurses and certified nursing assistants who work in the 250 facility may be used to provide services elsewhere on campus if 251 the facility exceeds the minimum number of direct care hours 252 required per resident per day and the total number of residents 253 receiving direct care services from a licensed nurse or a 254 certified nursing assistant does not cause the facility to 255 violate the staffing ratios required under s. 400.23(3)(b) s. 256 400.23(3)(a). Compliance with the minimum staffing ratios must 257 be based on the total number of residents receiving direct care 258 services, regardless of where they reside on campus. If the 259 facility receives a conditional license, it may not share staff 260 until the conditional license status ends. This paragraph does 261 not restrict the agencys authority under federal or state law 262 to require additional staff if a facility is cited for 263 deficiencies in care which are caused by an insufficient number 264 of certified nursing assistants or licensed nurses. The agency 265 may adopt rules for the documentation necessary to determine 266 compliance with this provision. 267 (n)Comply with state minimum-staffing requirements: 268 1.A facility that has failed to comply with state minimum 269 staffing requirements for 48 2 consecutive hours days is 270 prohibited from accepting new admissions until the facility has 271 achieved the minimum-staffing requirements for 6 consecutive 272 days. For the purposes of this subparagraph, any person who was 273 a resident of the facility and was absent from the facility for 274 the purpose of receiving medical care at a separate location or 275 was on a leave of absence is not considered a new admission. 276 Failure by the facility to impose such an admissions moratorium 277 is subject to a $1,000 fine. 278 2.A facility that does not have a conditional license may 279 be cited for failure to comply with the standards in s. 280 400.23(3)(b)1.b. and c. s. 400.23(3)(a)1.b. and c. only if it 281 has failed to meet those standards for 48 on 2 consecutive hours 282 days or if it has failed to meet at least 97 percent of those 283 standards on any one day. 284 3.A facility that has a conditional license must be in 285 compliance with the standards in s. 400.23(3)(b) s. 400.23(3)(a) 286 at all times. 287 (r)Maintain in the medical record for each resident a 288 daily chart of direct care certified nursing assistant services 289 provided to the resident. The direct care staff certified 290 nursing assistant who is caring for the resident must complete 291 this record by the end of his or her shift. This record must 292 indicate assistance with activities of daily living, assistance 293 with eating, and assistance with drinking, and must record each 294 offering of nutrition and hydration for those residents whose 295 plan of care or assessment indicates a risk for malnutrition or 296 dehydration. 297 Section 6.This act shall take effect upon becoming a law.