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Florida Legislature

staff Analyses

1993 Sessions

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1993 Session Law Number

H 2197 GENERAL BILUCS/2ND ENG by Appropriations; Aging & Human Services; Gordon (Similar CS/S 0298, Compare S 1118) Adult Congregate Living/Sunset; provides penalties for neglect; provides for care of residents designated as being mentally ill; revises requirements for existing fa­cilities requesting to provide extended congregate care services; provides for bi­ennial license fees; provides additional license application requirement; requires certain agreement or notice prior to moving resident to another facility, etc. Amends Ch. 400, 509.032. 651.011; revives & readopts Part II of Ch. 400. Appro-priation: $155,520. Effective Date: 10/01/93.

I

02/26/93 HOUSE Filed 03/02/93 HOUSE Introduced, referred to Appropriations -HJ 00302 03/22/93 HOUSE On Committee agenda-Appropriations, 03/23/93, 8:00

/ am, Morris Hall 03/23/93 HOUSE Co=. Action:-CS by Appropriations -HJ 00683 03/24/93 HOUSE CS read first time on 03/24/93 -HJ 00681; Placed on Calen- / dar -HJ 00683 ,-03/25/93 HOUSE Placed on Special Order Calendar 03/29/93 HOUSE Read second time -HJ 00845; Amendment(s) adopted -HJ 00846; Read third time; CS passed as amended; YEAS 109 NAYS 2 -HJ 00846 03/29/93 SENATE In Messages 03/31/93 SENATE Received, referred to Health and Rehabilitative Services -SJ 00828; Immediately withdrawn from Health and Reha­bilitative Services -SJ 00633; Substituted for CS/SB 298; Amendment(s) adopted -SJ 00634; CS passed as amended; YEAS 33 NAYS O -SJ 00634, -SJ 00838 03/31/93 HOUSE In returning messages 04/01/93 HOUSE Was taken up -HJ 01155; Refused to concur in 1 amend-ment(s) -HJ 01156; Requested Senate to recede; Con-

Icurred in 4 amendment(s) -HJ 01156; CS passed aa amend-ed; YEAS 119 NAYS O -HJ 01156 04/01/93 SENATE In returning messages; Was taken up -SJ 00991; Refused to recede -SJ 00992 04/01/93 HOUSE In returning messages 04/02/93 HOUSE Insisted Senate to recede -HJ 01441 04/02/93 SENATE In returning messages; Receded; CS passed aa amended; YEAS 36 NAYS O -SJ 01438. -SJ 01456 04/02/93 HOUSE Ordered engroesed, then enrolled -HJ 01688 04/29/93 Siitned by Officers and presented to Governor 05/12/93 Approved by Governor; Chapter No. 93-216

f t· 's FINAL LEGISLA­histor from Division of Legislative In orma ion NOTES: Above bill y

Staff Analyses for bills amended beyond TIVE BILL INFORMATION, 1993 SESSIONS.

d 'th the enacted law. Journal page t. y not be in accor ance wi final committee ac ion ma

t be the same as final bound numbers (HJ & SJ) refer to daily Journals and may no

Journals.

STORAGE NAME: h2197slz.ahs DATE: April 6, 1993

'13-216

**AS PASSED BY THE LEGISLATURE** CHAPTER 93-216, Laws of Florida

HOUSE OF REPRESENTATIVES COMMITTEE ON

AGING AND HUMAN SERVICES FINAL BILL ANALYSIS & ECONOMIC IMPACT STATEMENT

BILL#: CS/HB 2197 (PCB AHS 93-02)

RELATING TO: AQult Congregate Living Facilities

SPONSOR(S): Committee on Appropriations and Committee on Aging and Human Services and Rep. Gordon

STATUTE(S) AFFECTED: ss. 400.401, 400.402, 400.404, 400.407, 400.408, 400.411, 400.412, 400.414, 400.415, 400.417, 400.4174, 400.4176, 400.418, 400.419, 400.4195, 400.42, 400.421, 400.422, 400.424, 400.4255, 400.426, 400.427, 400.428, 400.429, 400.431, 400.434, 400.435, 400.441, 400.442, 400.444, 400.4445, 400.447, 400.452, 509.032, 651.011, F.S.

COMPANION BILL(S): CS/SB 298

ORIGINATING COMMITTEE(S)/COMMITTEE(S) OF REFERENCE: (1) AGING AND HUMAN SERVICES YEAS 19 NAYS 0 (2) APPROPRIATIONS YEAS 35 NAYS 0

***************************************************************************

I. SUMMARY:

CS/HB 2197 reenacts chapter 400, Part II, F.S., and makes a number ofsubstantive and technical changes to the provisions of that part asfollows: adds a legislative finding relating to licensure; addsdefinitions; makes unlicensed facilities subject to the samepenalties as licensed facilities; strengthens requirements for anextended congregate care license; strengthens enforcement provisionsrelating to referrals to unlicensed facilities and the regulationregarding transfer of ownership; adds additional causes of actionagainst a licensee to include a confirmed report of child abuse orneglect; requires the Division of Administrative Hearings to hearwithin 120 days any cases where a facility resident's health, safety,and welfare is threatened; requires that a facility is subject to animmediate moratorium on admissions when a license is denied, revoked,or suspended; amends the time frame for notifying the Agency forHealth Care Administration (hereafter the "Agency") of a change inadministrators from 30 to 45 days; requires the facility to notifyresidents of its policy on advance rent or security; providesauthority for certified nurse assistants to perform additionalduties; prohibits facility personnel from acting as a resident'spayee; amends the residents' bill of rights; adds conditions whichwarrant full biennial inspections; requires corrective action within48 hours if not sooner in cases where deficiencies in medication havebeen noted; requires interagency coordination with local firesafetyauthority to identify alternative living arrangements for tenants orclients who are victims of self-neglect; and deletes the requirementthat HRS review and approve advertising. The fiscal impact of thisbill has not yet been determined.

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II. SUBSTANTIVE ANALYSIS:

A. PRESENT SITUATION:

Refer to "Section-by-Section Analysis"

B. EFFECT OF PROPOSED CHANGES:

Refer to "Section-by-Section Analysis"

C. SECTION-BY-SECTION ANALYSIS:

Section 1 - 400.401, F.S.:

Present Situation: Specifies that the act may be cited as theadult congregate living facilities act; specifies the purpose ofthe act to promote available and appropriate services to elderlyand disabled persons in the least restrictive environment.

Effects of Proposed Change: Amends section to add a legislativefinding that licensure is a public trust and a privilege and notan entitlement and that this should be a guiding principle in anadministrative or judicial proceeding.

Section 2 - 400.402, F.S.:

Present Situation: chapter 400, F.S.

Specifies the definitions used in part II,

Effects of Proposed Change: Amends section to add definitionsfor "activities of daily living", "agency", "chemical restraint",and "twenty-four hour nursing supervision"; deletes the definitionof "multiple or repeated violations" and "neglect"; adds the terms"if applicable, the resident's representative or designee,surrogate, guardian, or attorney-in-fact" to several definitionsthat refer to the "resident"; deletes "assisting residents" fromthe definition of "supervision of activities of daily living"; andmakes minor changes to several other definitions.

Section 3 - 400.404, F.S.:

Present Situation: Specifies which facilities must obtain anACLF license and lists the exemptions from such licensure.

Effects of Proposed Change: Amends section to update and clarifythe exemption section; deletes refe�ence to institutions exemptedfrom this part which do not operate as an ACLF, including medicaltreatment or surgical facilities and transient rentals and collegedormitories; and makes a technical change.

Section 4 - 400.407, F.S.:

Present Situation: Provides the requirements for the variouslicensure categories, the fees, and the penalties for notobtaining a license when required.

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Effects of Proposed Change: Amends section to make an unlicensed facility subject to the same penalties as a licensed facility and to require that facilities that accept two or more residents designated as being mentally ill and whose mental health treatment services are funded by the state must have an individualized writtefl--plan with the community mental health center or other Medicaid provider for the state-funded mental health residents. The section also clarifies requirements for an extended congregate care license. It clarifies that existing facilities qualifying to provide extended congregate care services must not have had an administrative sanctions during the previous 2 years and delineates the criteria for determining multiple or repeated violations for which sanctions will be imposed for extended congregate care licensure. It also deletes the provision that facilities licensed to provide limited mental health services to 16 or fewer residents may have all mental health residents inthose facilities. In addition, the section specifies that a fee may be charged to a facility requesting a duplicate license which shall not exceed the actual cost of duplication and postage. Furthermore, the section corrects several cross-references and conforms the change of licensure from annual to biennial.

Section 5 - 400,408, F.S.:

Present Situation: Specifies that it is unlawful to knowingly refer a person to an unlicensed facility and specifies the penalty.

Effects of Proposed Change: Amends section to strengthen the enforcement provisions relating to referrals to unlicensed facilities or facilities whose licenses are under denial, suspension or revocation or has had a moratorium placed on admissions.

Section 6 - 400.411. F.S.:

Present Situation: Specifies the requirements for license application and provides for a provisional license to be issued under certain circumstances.

Effects of Proposed Change: Amends section to add to the information to be included in the application form, the list of other facilities operated by the licensee; and makes several technical changes.

Section 7 - 400.412, F.S.:

Present Situation: Provides the requirements for transfer of ownership of a facility.

Effects of Proposed Change: Amends section to strengthen the regulation regarding transfer of ownership to require that a moratorium or a denial of licensure remains until the problem that caused it is corrected or a plan of correction is approved by the agency, and to provide that failure to correct the condition is grounds for denial of the transferee's license.

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Section 8 - 400.414, F.S.:

Present Situation: Provides the circumstances under which an ACLF license may be denied, revoked, or suspended, and penalties for certain actions.

Effects of Proposed Change: Amends section to add additional causes for action against a licensee to including multiple or repeated violations which in the aggregate affects the health, safety, or welfare of the residents, a confirmed report of child abuse or neglect on a facility owner or employee, failure to meet minimum standards in an initial or change of ownership license, and a fraudulent statement on any required document that is signed and notarized. It also requires the agency to provide to the Division of Hotels and Restaurants, Department of Business Regulation, on a monthly basis, a list of those facilities which have had their license denied, suspended or revoked, or which are involved in an appellate proceeding pursuant to s. 120.60 related to the denial, suspension, or revocation of a license.

Section 9 - 400.415, F.S.:

Present Situation: Allows for an immediate moratorium to be placed on a facility when it is determined that a condition presents a potential threat to the health, safety, or welfare of the facility residents.

Effects of Propose Change: Amends section to require that when a facility license is denied, revoked, or suspended, that facility may be subject to an immediate moratorium on admissions to run concurrently with the licensure action.

Section 10 - 400.417, F.S.:

Present Situation: Provides the requirements for license renewal and allows for a conditional license to be issued when there is a revocation or suspension pending against a licensee at the time of renewal or when a renewal applicant does not meet minimum standards.

Effects of Proposed Change: changes.

Section 11 - 400.4174, F.S.:

Amends section to make technical

Present Situation: Requires that the licensing office be notified when there is a confirmed report of abuse, neglect, or exploitation on a facility employee, volunteer, administrator, or owner.

Effects of Proposed Change: conforming changes.

Section 12 - 400.4176, F.S.:

Amends section to make technical and

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Present Situation: Requires the facility owner to notify the department within 30 days when there is a change of facility administrator.

Effects of Proposed Change: Amends section to increase the time period from 30 to 45 days within which the agency must be notified when there is a change in facility administrators.

Section 13 - 400.418, F.S.:

Present Situation: Provides for the disposition of fees and fines into a trust fund.

Effects of Proposed Change: Amends section to require trust funds to be used for offsetting the costs of the licensure program.

Section 14 - 400.419, F.S.:

Present Situation: Specifies the penalties for certain types of violations and provides an appeals process.

Effects of Proposed Change: Amends section to allow the agency to impose a fine for fraudulent misrepresentation of actions taken and in the case of the owner-operator of a facility, revoke his/her license for the same action. The section establishes a new type of violation, a "class IV" violation which specifically refers to operation and maintenance of a building or to required reports, forms, or documents which do not negatively affect residents and the penalties to be imposed for this type of violation. It also requires the agency to publish and disseminate an annual list of sanctioned facilities.

Section 15 - 400.4195. F.S.:

Present Situation: Specifies that it is unlawful for an ACLF to contract, or promise, to pay a commission or any kickback for referrals, but allows facilities to do marketing and referral agencies to do business as long as the agency charges the individual looking for a facility and not the facility.

Effects of Proposed Change: Amends section to specify that HRS, in consultation with the agency, will develop rules relating to rebates which assess administrative penalties to be imposed for violation of this section.

Section 16 - 400.42, F.S.:

Present Situation: Prohibits certain kinds of solicitation.

Effects of Proposed Change: Amends section to add that an ACLF may accept additional supplementation from third parties on behalf of residents receiving optional state supplementation.

section 17 - 400.421, F.S.:

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Present Situation: proceedings.

Allows for the provision of injunctive

Effects of Proposed Change: change.

Section 18 - 400.422, F.S.:

Amends section to make a conforming

Present Situation: Allows, as an alternative to or in conjunction with an injunctive proceeding, the department to petition for the appointment of a receiver. The conditions for such receivership are specified.

Effects of Proposed Change: Amends section to increase the cap on amount of funds to be available during receivership proceedings to reflect the current cost of goods and services; and makes a minor and technical change.

Section 19 - 400.424, F.s.:

Present Situation: Requires facilities to execute contracts with facility residents or their designees or legal representatives and specifies the contents of such contracts.

Effects of Proposed Change: Amends section to require a facility to notify residents of its policy on advance rent or security deposits. The section also clarifies when the date of termination of residency occurs and the policy on clearing a unit of personal belongings. The section requires refunds to be provided to the resident or responsible party within 45 days after transfer, discharge, or death and provides for a fine for failure to do so and for the distribution of such fines.

Section 20 - 400.4255, F.S.:

Present Situation: Allows persons licensed under chapter 464, F.S., who are under contract to a facility to perform certairispecified functions for all staff in a facility.

Effects of Proposed Change: Amends section to allow facility personnel who are licensed under chapter 464, F.S., to perform additional duties in a facility and to allow certified nursing assistants to take residents' vital signs as directed by a licensed nurse or physician. In facilities licensed to provide extended congregate care, facility personnel would be permitted to perform all duties within the scope of their license or certification when approved by the facility administrator and consistent with the provisions of this part.

Section 21 - 400.426, F.s.:

Present Situation: Specifies provisions relating to appropriateness of placement in a facility and for examinations of residents.

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Effects of Proposed Change: Amends section to clarify that a determination of appropriateness must be based upon an assessment of the strengths, needs, and preferences of the resident and the care and services offered or arranged for the resident by the facility; clarifies procedure for circumstances where a resident is moveg from an ACLF and the responsibility of the department; specifies that the agency will require a resident to undergo a physical examination when it appears that the care needed by the resident is beyond that which the facility is licensed to provide; specifies that if the facility schedules the appointment for the physical examination, preference will be given to the resident's choice of either a physician, advance nurse practitioner, or a mental health professional; allows home health agencies to provide care to terminally ill patients in ACLFs under certain circumstances; and provides that under no circumstances will a facility retain a resident who requires more services than those the facility is able to provide in accordance with its policies and criteria for admission and continued residency.

Section 22 - 400.427, F.S.:

Present Situation: Specifies provisions relating to the property and personal affairs of residents. The section also provides penalties for misuse of residents' funds or personal property.

Effects of Proposed Change: Amends section to allow a resident to use his own belongings, as space permits, and whenever possible, unless the resident is adjudicated incompetent or incapacitated; prohibits facility personnel from acting as a competent resident's payee for social security, veteran's or railroad benefits without the consent of the resident; and clarifies current law relating to property and personal affairs of residents and specifies that the resident must use personal funds to pay for care in an ACLF.

Section 23 - 400.428, F.S.:

Present Situation: Provides the Resident Bill of Rights.

Effects of Proposed Change: Amends section to make several revisions to the residents' bill of rights, such as requiring each facility to develop a grievance procedure and to ensure a resident's access to a telephone call to specified advocacy organizations and to the abuse registry. The section also would require the agency to conduct one monitoring visit during the non­inspection year in certain sanctioned facilities.

Section 24 - 400.429, F.S.:

Present Situation: Allows for a cause of action against a facility for any person or resident whose rights have been violated.

Effects of Proposed Change: Amends section to allow a personal representative to bring a lawsuit against an ACLF when the cause

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of death resulted from an ACLFs violation of the deceased resident's rights; and makes a technical change.

Section 25 - 400.431, F.S.:

Present_Situation: facility.

Provides the requirements for closing of a

Effects of Proposed Change: Amends section to require HRS to specify in rule which program offices are responsible for ensuring that residents receiving state services are appropriately relocated during a closure of a facility. The section also requires that advance payments for services not received must be refunded within 10 working days instead of the 7 days under current law.

Section 26 - 400.434, F.S.:

Present Situation: Provides for a right of entry to and inspection of a facility to any designated officer or employee of the department, the state or local fire marshal, or a member of the ombudsman council.

Effects of Proposed Change: Amends section to provide that the agency retains the right of entry and inspection of a facility whose license has been suspended or revoked within the previous 24 months; and defines provisions relating to the statement of probable cause prior to entering a facility.

Section 27 - 400,435, F.S.:

Present Situation: Requires facilities to maintain inspection records as public information and requires the department to forward inspection results to the district ombudsman council, one public library or the county seat.

Effects of Proposed Change: technical changes.

Section 28 - 400.441, F.S.:

Amends section to make minor and

Present Situation: Provides rulemaking authority for part II, chapter 400, F,S., and specifies what the rules must include.

Effects of Proposed Change: Amends section to require the department to promulgate rules, in consultation with the agency, to implement the provisions of this part; requires that night staff participate in a mock fire drill each year in addition to one regular fire drill at night. The section also would require the agency to collect fees for food service inspections conducted by the county public health units and transfer the fees to the department. The term "mechanical restraints" is changed to "physical or chemical restraints", and the use of such restraints must be with the consent of the resident or resident's representatives or other responsible party. It specifies criteria for use of chemical restraints. The language in subsection (2) is

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reworded to specify that rules must be developed which make distinct standards based on the various types of facilities and that such rules not restrict the use of shared staffing and programming in certain facilities. Confirmed ombudsman complaints or confirmed licensure complaints are added as conditions that would warrant a full biennial inspection. A fee must be charged to the persons requesting copies of statutes and rules.

Section 29 - 400.442, F.S.:

Present Situation: Requires that a facility with certain documented deficiencies employ a licensed pharmacist or a registered or licensed dietitian, or both, as applicable and requires the department to employ at least two pharmacists among its personnel who inspect ACLFs.

Effects of Proposed Change: Amends section to require a corrective plan of action to be developed within 48 hours or sooner for life threatening deficiencies relating to the administration or supervision of medication.

Section 30 - 400.444, F.S.:

Present Situation: Provides that the requirements for construction and renovation of a facility must comply with the provisions of chapter 553, F.S.

Effects of Proposed Change: change.

Section 31 - 400.4445, F.S.:

Amends section to make a technical

Present Situation: Specifies the requirements to meet compliance with local zoning requirements.

Effects of Proposed Change: change.

section 32 - 400.447, F.S.:

Amends section to make a technical

Present Situation: Provides penalties for certain prohibited acts relating to advertising and withholding of information regarding financial instability. It allows advertising for facilities under construction if certain conditions are met.

Effects of Proposed Change: Deletes the requirement that HRS review and approve advertising for facilities under construction and specifies a fine for advertising that a freestanding facility is part of a nursing home.

Section 33 - 400.452, F.S.:

Present Situation: Provides requirements for staff training and educational programs.

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Effects of Proposed Change: changes.

Section 34 - 400.453, F.S.:

Amends section to make clarifying

Present-Situation: Requires the area offices of licensure and certification to provide consultation and allows the department to charge a fee, allows the department to collect certain information from facilities regarding cost of care and allows local governments or organizations to contribute to the cost of care.

Effects of Proposed Change: changes.

Amends section to make technical

Section 35 - 509.032(2)(a)4.a., F.S.:

Present Situation: Contains the duties of the Division of Hotels and Restaurants, Department of Business Regulation, as related to public lodging establishments and public food service establishments; specifies requirements relating to keeping accurate account of all expenses, inspection of premises, sanitary standards to be imposed during emergencies and temporary food service events, and rulemaking authority.

Effects of Proposed Change: Specifies that the division convene meetings of appropriate agencies to develop a plan which ensures the safety of tenants or clients who appear to be victims of neglect as defined in s. 415.102(12), F.S., residing in public lodging establishments or in buildings not equipped with automatic sprinkler systems in instances where tenants are unable to self­preserve in an emergency; and if necessary, identify alternative living arrangements, such as facilities licensed under chapter 400, F.S., for affected tenants and clients.

Section 36 - 651.011, F.S.:

Present Situation: Contains the definitions used in s. 651.011, F.S., relating to continuing care services.

Effects of Proposed Change: change.

Amends section to make a technical

Section 37: Authorizes FTEs and funds from the Health Care Trust Fund to carry out the additional field survey activities provided in this part.

Section 38: Provides that notwithstanding the provisions of the Regulatory Sunset Act in accordance with s. 11.61, F.S., part II of chapter 400� F.s., will not be repealed on October 1, 1993, and will continue in full force and effect as amended.

Section 39: Specifies that part II of chapter 400, F.S., is repealed on October 1, 2003 ,· and will be reviewed by the Legislature pursuant to s. 11.61, F.S. In the event that s. 11.61, F.S., is repealed prior to October 1, 2003, this section will be repealed on the effective date of the repeal.

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Section 40: Provides an effective date of October 1, 1993.

III. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT:

A. FISCAL IMPACT ON STATE AGENCIES/STATE FUNDS:

** SEE FISCAL COMMENTS

1. Non-recurring Effects:

Expenditures:

AGENCY FOR HEALTH CAREADMINISTRATION

Expenses General Revenue Fund

Other Capital Outlay General Revenue Fund

2. Recurring Effects:

Expenditures:

AGENCY FOR HEALTH CAREADMINISTRATION

Salary and Benefits General Revenue Fund

Expenses General Revenue Fund

(4.5 FTE's)

3. Long Run Effects Other Than Normal Growth:

None

4. Total Revenues and Expenditures:

AGENCY FOR HEALTH CAREADMINISTRATION

General Revenue Fund (4.5 FTE's)

1993-94 1994-95

$ 12,600

10,700

103,461 137,948

28,759 38,345

155,520 176,293

B. FISCAL IMPACT ON LOCAL GOVERNMENTS AS A WHOLE:

1. Non-recurring Effects:

None

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2. Recurring Effects:

None

3. Long Run Effects Other Than Normal Growth:

None

C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:

1. Direct Private Sector Costs:

None

2. Direct Private Sector Benefits:

None

3. Effects on Competition, Private Enterprise and EmploymentMarkets:

None

D. FISCAL COMMENTS:

The Agency for Health Care Administration reports that there is a$1.6 million shortfall in revenues to support the current ACLFlicensure program. This is in addition to the funding required toimplement this bill. The current cost to regulate the program isestimated at $2.6 million. The current licensure fees generateapproximately $1.0 million.

The fiscal impact on the Department of Health and RehabilitativeServices is minimal if any, and can be absorbed within it'scurrent resources.

IV. CONSEQUENCES OF ARTICLE VII, SECTION 18 OF THE FLORIDA CONSTITUTION:

Not Applicable

A. APPLICABILITY OF THE MANDATES PROVISION:

Not Applicable

B. REDUCTION OF REVENUE RAISING AUTHORITY:

Not Applicable

C. REDUCTION OF STATE TAX SHARED WITH COUNTIES AND MUNICIPALITIES:

Not Applicable

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V. COMMENTS:

A 1991 performance audit of the regulation of ACLFs by the Auditor General (Report No. 11767) found a number of problems in the regulatory process. The audit found that because of a lack of written guidelines, inconsistencies occur in the sanctioning process. There is also a lack of timeliness in the sanctioning process due to insufficient departmental legal staff, lack of time goals, and no oversight.

Most residents living in problem facilities have limited housing options since they have low personal incomes or are recipients of state or federal assistance. In addition, a large number of these facility residents have chronic mental illness diagnoses.

A 1985 Florida Supreme Court decision states, occupations that are potentially injurious to practiced by privilege rather than by right. Department of Business Regulation, 463 So. 2d

in part, that licensed the public welfare are Astral Liquors, Inc. v. 1130 (Fla. 1985).

The proposed legislation would increase the agency's enforcement ability to provide for the public safety of an aged person or disabled adult living in an unlicensed, unregulated facility or in an ACLF when its license is in denial, revocation, or suspension status. This bill would protect residents from living in licensed facilities with histories of noncompliance with minimum standards.

In addition, this bill specifies that licensure fees and fines collected under this part will be deposited into the Health Care Trust Fund, established under Chapter 92-33 during the 1992 legislative session which created the Agency for Health Care Administration. Effective July 1, 1993, the Health Care Trust Fund will replace the current Resident Protection Trust Fund and the Licensure Fee Trust Fund as the general funding category for provisions under this part. This bill conforms to provisions specified in Chapter 92-33 and superseded the November, 1992 constitutional amendment regarding trust funds, specifically, the requirement that new trust funds created will require a three-fifths (3/5) vote of the membership of each house of the Legislature. A review by appropriate House staff indicated that the bill does not conflict with the constitutional amendment.

Many of the provisions of this bill were contained in House Bill 1701 which passed the House and failed passage in the Senate during the 1992 legislative session.

VI. AMENDMENTS OR COMMITTEE SUBSTITUTE CHANGES:

The Committee on Appropriations passed the following amendments:

1. A strike everything after the enacting clause amendment containsnumerous clarifying, technical, and conforming changes to make the

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House version similar to the Senate bill (CS/HB 298). The substantive changes are as follows:

• Specifies, where applicable, the criteria for determining multipleor repeated violations. This clarifies the categories ofviolations for which sanctions will be imposed;

• Adds language to the section on unlawful referral to unlicensedfacilities to also prohibit referrals of individuals to facilitieswhich have had a moratorium placed on admissions;

• Adds to the information to be included in the application form,the list of other facilities operated by the licensee;

• Establishes a new type of violation, a "class IV" violation, whichspecifically refers to operation and maintenance of a building orto required reports, forms, or documents which do not negativelyaffect residents;

• Increases the cap on the amount of funds to be available duringreceivership proceedings to reflect current cost of goods andservices;

• Clarifies provisions relating to the entry and inspection offacilities whose license has been revoked to define probablecause; and

• Clarifies the use of chemical restraints.

2. There was one amendment to the amendment which authorizes fundsand FTEs to carry out the agency's additional field survey activitiesprovided in this part.

3. There were four technical and clarifying amendments which passedon the floor.

VII. SIGNATURES:

COMMITTEE ON AGING AND HUMAN SERVICES:Prepared by: Staff Director:

Felicidad Curva, Ph.D. Tom Batchelor, Ph.D.

COMMITTEE ON APPROPRIATIONS:

Prepared by: Staff Director:

Cathie Herndon Peter J. Mitchell

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FINAL ANALYSIS PREPARED BY

Prepared by:

,_}J-L�o�6 Felicidad R. Curva, Ph.D.

COMMITTEE ON AGING AND HUMAN SERVICES:

Staff Director:

��� Tom Batchelor, Ph.D.

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1 PAGE 15

FINAL ANALYSIS PREPARED BY

Prepared by:

,JJ-LJo�, Felicidad R. Curva, Ph.D.

COMMITTEE ON AGING AND HUMAN SERVICES:

Staff Director:

�'£� Tom Batchelor, Ph.D.

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REVISED: OR\G\NA\. co'P'f. BILL NO. CS/SB 298

Page DATE: February 5, 1993

SENATE STAFF ANALYSIS AND ECONOMIC IMPACT STATEMENT

ANALYST

1. McCord�2.

STAFF DIRECTOR

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REFERENCE

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ACTION

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SUBJECT: BILL NO. AND SPONSOR:

Adult Congregate Living Facilities (SUNSET REVIEW)

I. SUMMARY:

A. Present Situation:

CS/SB 298 by Health and RehabilitativeServices Committee

Section 11.61, Florida Statutes, the Regulatory Sunset Act,provides for a systematic review of those statutes which regulate the practices of business and industries within the State of Florida. If after review a statute is determined notto be a justifiable exercise of the state's police power or isotherwise deficient as provided for under the act, it must be repealed. However, if a statute is found to provide protectionto the public as a valid exercise of the state's police power, it must be revised if necessary and readopted. Those regulatory statutes under review are scheduled for repealunless revised or reenacted.

Chapter 400, Part II, F.S., which regulates adult congregate living facilities (ACLFs), is scheduled for repeal on October 1, 1993. As a 1992-93 interim project, the Senate Committee onHealth and Rehabilitative Services conducted a review of this statute pursuant to the Sunset Act. The review concluded that the absence of the present regulation would result in a substantial risk to the health, safety, and welfare of the public. The Sunset report recommends that the Legislature notrepeal the sections under review on October 1, 1993, but that the sections be reenacted with a number of changes.

ACLFs are places that provide housing, food service, and one ormore personal services for four or more adults who are elderly or disabled. If a facility provides housing, food service, andone or more personal services to fewer than four persons, advertises, and holds itself out to the public to be an establishment which regularly provides such services, it also must be licensed as an ACLF, ACLFs were designed to provide analternative to institutional care for those adults who were in need of assistance with daily activities and not physically or mentally impaired to the extent that they need nursing home care. The goal of the ACLF Program is to ensure the health, safety, and welfare of the residents of ACLFs; to promote theavailability of appropriate services for elderly and disabledpersons in the least restrictive environment; and to promote continued improvement of ACLF services and facilities.

These facilities are licensed by the Agency for Health CareAdministration, and the rules for the ACLF program are developed by the Department of Health and Rehabilitative Services (HRS), There are currently 1,564 facilities licensedin Florida with a bed capacity of 59,576. The law allows fourlicensure options for ACLFs: a standard license, a limited nursing services license, a limited mental health services license, and an extended congregate care license. The limitednursing services license allows an ACLF to employ a nurse licensed under ch. 464, F.S., to perform certain limited

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nursing services that are defined by administrative rule. The limited mental health services license was designed to provide low income mental health residents with proper mental health care within the ACLF setting. The 1991 Legislature passed the extended congregate care provision (chapter 91-263, L.O.F.) to allow residents who no longer meet admission criteria to "age in place". This option allows more impaired residents to remain in the facility if it is licensed to provide the additional supportive services needed, The rule was effective on September 30, 1992, and to date, no facilities have been licensed for extended congregate care. However, over 100 facilities have requested application packets to be mailed to them.

During the past five years, a number of problems have been identified concerning the care of residents living in ACLFs. Although the law provides the Agency for Health Care Administration the authority to initiate protective measures on behalf of these residents, legal delays, limited enforcement capabilities, and licensure law imperfections have resulted in documented instances when the residents of these facilities have been subjected to conditions that have contributed to their physical and mental decline: abuse, neglect, and exploitation; bodily injury; and death. According to the agency, these negative resident outcomes occur, in part, because the agency lacks sufficient specific statutory authority to prevent or minimize their occurrence.

A number of legislative changes have been made over the last several years in an effort to strengthen the enforcement of ACLF licensure standards as a result of industry, agency, and public input. Newspapers have published articles showing a need for greater enforcement in various areas, and the law has been amended accordingly. Yet, regardless of the penalties contained in the law for doing so, a number of facilities continue to provide ACLF services as unlicensed, unregulated facilities. It is alleged by some in the ACLF industry that there is an underground unlicensed home "industry".

In spite of the identified problems, Florida is considered a leader in the regulation of ACLFs and, with the 1991 legislation that allows these facilities to offer extended congregate care, is at the forefront of a national trend that allows and encourages residents of such facilities to age in place with as much independence as possible in order to avoid premature nursing home or institutional care.

B, Effect of Proposed Changes:

Based on the recommendations of the Sunset Report, the proposed bill reenacts chapter 400, Part II, F.S., and makes a number of substantive and technical changes to the provisions of that part.

Sectional Analysis

Section 1. amends s. 400.401, F.S., to add a legislative finding that licensure is a public trust and a privilege and not an entitlement and this should be a guiding principle in an administrative or judicial proceeding.

Section 2. amends s. 400,402, F.S., to add definitions for "activities of daily living", "agency", "multiple or repeated violations", "chemical restraints" and "twenty-four hour nursing supervision": to delete the definition for "neglect": to add the terms "surrogate, guardian, or attorney-in-fact" to several definitions that refer to "representative or designee": to delete "assist;ing residents" from the definition of

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"supervision of activities of daily living"; and to make minor changes to several other definitions.

Section 3. amends s. 400.404, F.S., to make technical changes and to change exemptions from licensure as an ACLF.

Section 4. amends s. 400.407, F.S., to make an unlicensed facility subject to the same penalties as a licensed facility. The section also strengthens requirements for an extended congregate care license and allows the agency to charge a fee to facilities requesting an increase in licensed capacity.

Section 5. amends s. 400.408, F.S., to strengthen the enforcement provisions relating to referrals to unlicensed facilities or facilities whose licenses are under denial.

Section 6. amends s. 400.411, F.S., to make technical changes and to require additional information on a license application.

Section 7. amends s. 400.412, F.S., to strengthen the regulation regarding transfer of ownership to require that a moratorium or a denial of licensure remains until the problem that caused it is corrected or a plan of correction is approved by the agency, and to provide that failure to correct the condition is grounds for denial of the transferee's license.

Section 8. amends s. 400.414, F.S., to add additional causes for action against a licensee to include a confirmed report of child abuse or neglect on a facility owner or employee, failure to meet minimum standards in an initial or change of ownership license, and a fraudulent statement on any required document that is signed and notarized. Additional causes for denying a license relating to the previous history of an applicant are added to include those who own 25 per cent or more of a facility. The Division of Administrative Hearings would be required to hear within 120 days after the request any cases where a facility resident's health, safety, or welfare is threatened by the owner or an employee.

Section 9. amends s. 400.415, F.S., to require that when a facility license is denied, revoked, or suspended that facility is subject to an immediate moratorium on admissions to run concurrently with the licensure action.

Section 10. amends s. 400.417, F.S., to make technical changes.

Section 11, amends s. 400.4174, F.S., to make technical and conforming changes.

Section 12. amends s. 4176, F.S., to increase the time period from 30 to 45 days within which the agency must be notified when there is a change in facility administrators.

Section 13, amends s. 400.418, F.S., to require trust funds to be used for offsetting the costs of the licensure program.

Section 14. amends s. 400.419, F.S., to allow the agency to impose a fine and in the case of an owner-operated facility, revoke a license when an administrator fraudulently misrepresents documentation of corrective action and to require the agency to publish and disseminate an annual list of sanctioned facilities.

Section 15. amends s. 400.4195, F.S., to make a technical change.

Section 16. amends s. 400.42, F.S., to make a conforming change.

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Section 17. amends s. 400.421, F.S., to make technical changes.

Section 18. amends s. 400.422, F.S., to make minor and technical changes.

Section 19. amends s. 400.424, F.S., to require a facility to notify residents of its policy on advance rent or security deposits. The section also clarifies when the date of termination of residency occurs and the policy on clearing a unit of personal belongings. The section requires refunds to be provided to the resident or responsible party within 45 days after transfer, discharge, or death and provides for a fine for failure to do so and for the distribution of such fines.

Section 20. amends s. 400.4255, F.S., to allow facility personnel who are licensed under ch. 464, F.S., to perform additional duties in a facility and to allow certified nursing assistants to take residents' vital signs. In facilities licensed to provide extended congregate care, facility personnel would be permitted to perform all duties within the scope of their license or certification when approved by the facility administrator and consistent with the provisions of this part.

Section 21. amends s. 400.426, F.S., to prohibit moving a resident from one facility to another without their agreement, and to allow the resident to choose a preferred physician to complete an examination to determine appropriateness of placement. A facility cannot be required to retain a resident for whom it is unable to provide needed services.

Section 22. amends s. 400.427, F.S., to prohibit facility personnel from acting as a competent resident's payee for social security, veteran's or railroad benefits without the consent of the resident and to make technical changes.

Section 23. amends s. 400.428, F.S., to make technical changes and to make several revisions to the residents' bill of rights, such as requiring each facility to develop a grievance procedure, to require a facility to extend visiting hours upon request in certain situations, and to ensure a resident's access to a telephone call to specified advocacy organizations and to the abuse registry. The section also would require the agency to conduct one monitoring visit during the non­inspection year in certain sanctioned facilities.

Section 24. amends s. 400.429, F.S., to make a technical change.

Section 25. amends s. 400.431, F.S., to require the department to specify in rule which program offices are responsible for ensuring that residents receiving state services are appropriately relocated. The section also would require that · advance payments for services not received must be refunded within 10 working days instead of the 7 days under current law.

Section 26. amends s. 400.434, F.S., to provide that the agency retains the right of entry and inspection of a facility whose license has been suspended or revoked or has voluntarily surrendered its license during the previous 18 months and there is probable cause to believe that the facility is operating unlawfully.

Section 27. amends s. 400.435, F.S., to make minor and technical changes.

Section 28. amends s, 400.441, F.S., to make technical changes and to require that night staff participate in a mock fire drill each year in addition to one regular fire drill at night. The section also would require the agency to collect fees and

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subcontract to the county public health units for food service inspections. The term "mechanical restraints" is changed to "physical or chemical restraints", and the use of such restraints must be with the consent of the resident or resident's representative or other responsible party. If a resident is receiving a medication that can serve as a chemical restraint, the resident must be evaluated by a physician at least annually. The language in subsection (2) is reworded to specify that rules must be developed which make distinct standards based on the various types of facilities and that such rules not restrict the use of shared staffing and programming in certain facilities. Confirmed ombudsman complaints or confirmed licensure complaints are added as conditions that would warrant a full biennial inspection. A fee must be charged to persons requesting copies of statutes or rules, and the agency would be permitted to charge a fee for duplicate licenses.

Section 29. amends s. 400.442, F.S., to require a corrective plan of action to be developed within 48 hours or sooner for life threatening deficiencies relating to the administration or supervision of medication.

Section 30. amends s. 400.444, F.S., to make a technical · change.

Section 31. amends s. 400.4445, F.S., to make a technical change.

Section 32. amends s. 400.447, F.S., to delete the requirement that HRS review and approve advertising for facilities under construction and specifies a fine for advertising that a freestanding facility is part of a nursing home.

Section 33. amends s. 400.452, F.S., to make minor changes.

Section 34. amends s. 400,453, F.S., to make technical changes.

Section 35, changes.

Section 36. s. 25 of ch.263, Laws of400, F,S,

Section 37.

amends s. 400.454, F.S., to make technical

repeals s. 83 of ch. 83-181, s. 19 of ch. 87-371, 89-294, s. 1 of ch. 90-192, and s. 38 of ch. 91-Florida, abrogating the repeal of Part II, ch.

provides an effective date.

II. ECONOMIC IMPACT AND FISCAL NOTE:

A. Public:

Several prov1s1ons of the bill will result in added costs tothe public, such as charging for requests for copies of law orrule and charging for requests for copies of the annual listingof sanctioned facilities. In addition, the bill also wouldallow the agency to charge for requests for increases inlicensed capacity.

The provisions of this bill may result in the more problematicfacilities going out of business.

B, Government:

The Agency for Health Care Administration reports that there is a $1,6 million shortfall in the adult congregate living facility licensure program. However, the figures to completely recover the costs of the program have not been determined as

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yet. To date, the agency has made no proposals for licensure fee increases in this program.

Several provisions in this bill will add as yet undetermined amounts to the costs of the licensure program. These provisions include the requirement for the agency to develop and disseminate an annual listing of sanctioned facilities: the requirement for the agency to conduct monitoring visits in certain sanctioned facilities during the non-inspection year; and the addition of confirmed ombudsman and confirmed licensure complaints as conditions that warrant a full biennial inspection.

There may be a workload impact on the Division of Administrative Hearings due to the requirement that a hearing must be held within 120 days after the hearing request. Some of this impact may be offset if fewer hearings are requested as a result of a more definitive law.

III, MUNICIPALITY/COUNTY MANDATES RESTRICTIONS:

The provisions of this bill have no impact on municipalities and counties under the requirements of Article VII, Section 18 of the Florida Constitution.

IV. COMMENTS:

A 1991 performance audit of the regulation of ACLFs by the AuditorGeneral (Report No. 11767) found a number of problems in theregulatory process. The audit found that because of a lack ofwritten guidelines, inconsistencies occur in the sanctioningprocess. There is also a lack of timeliness in the sanctioningprocess due to insufficient departmental legal staff, lack of timegoals, and no oversight.

Most residents living in problem facilities have limited housingoptions since they have low personal incomes or are recipients ofstate or federal assistance. In addition, a large number of thesefacility residents have chronic mental illness diagnoses.

A 1985 Florida Supreme Court decision states, in part, thatlicensed occupations that are potentially injurious to the publicwelfare are practiced by privilege rather than by right. AstralLiquors, Inc. v. Department of Business Regulation, 463 So. 2d 1130(Fla. 1985).

The bill would increase the agency's enforcement ability to provide for the public safety of an aged person or disabled adult living in an unlicensed, unregulated facility or in an ACLF when its license is in denial, revocation, or suspension status. This bill also would protect residents from living in licensed facilities with histories of noncompliance with minimum standards.

Many of the provisions of this bill were contained in Senate Bill 74-H which passed the Senate during the 1992 Special Session H.

V. AMENDMENTS:

None.

C�ICfNAL COPY

STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN COMMITTEE SUBSTITUTE FOR

Senate Bill 298

The committee substitute:

- eliminates the following from the exemption from ACLFlicensure:

1) any institution that offers its services primarilyfor medical treatment or surgery;

2) any facility licensed, certified, or regulated underother provisions of state law; and

3) transient rentals;

- exempts from ACLF licensure any facility or part of afacility licensed under chapter 393 or chapter 394;

- makes it unlawful to refer a person for residency to anadult congregate living facility whose license is underdenial or has had a moratorium placed on admissions;

- requires that information be included on a licenseapplication regarding all other homes or facilities owned oroperated by the applicant which provide housing, meals andpersonal services to adults;

- allows the agency to deny a license to an applicant whoowns 25% or more of a facility that has been sanctioned in avariety of ways prior to this application;

- prohibits moving a resident from one facility to anotherwithout consultation with and agreement from the resident oranother applicable parties;

- directs that, to the extent possible, a resident who isrequired to be examined to determine appropriateness ofplacement must be able to choose the examining physician,nurse practitioner or mental health professional;

- specifies that a facility can not be required to retain aresident who requires more services or care than thefacility is able to provide;

- provides that the agency has right of entry and inspectionof a facility for 18 months after a facility has had itslicense revoked or suspended or the facility has voluntarilysurrendered its license, if there is probable cause tobelieve that the facility is operating unlawfully.

Committee on Health and Rehabilitative

Services

i!:w� dUtt-tu sfaffirector

(FILE TWO COPIES WITH THE SECRETARY OF THE SENATE)