Bill Text: FL S1638 | 2013 | Regular Session | Introduced
Bill Title: Assisted Living Facilities
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2013-05-03 - Died in Health Policy [S1638 Detail]
Download: Florida-2013-S1638-Introduced.html
Florida Senate - 2013 SB 1638 By Senator Diaz de la Portilla 40-00845-13 20131638__ 1 A bill to be entitled 2 An act relating to assisted living facilities; 3 amending s. 429.26, F.S.; providing that the owner or 4 administrator of a facility is responsible for 5 arranging medical evaluations and reevaluations of 6 individuals admitted to or residing in the facility to 7 assess appropriateness of admission or continued 8 residence; requiring that the medical examination be 9 conducted by a physician, physician assistant, or 10 nurse practitioner and that the subsequent report be 11 submitted within a specified timeframe; requiring the 12 medical examination report to be recorded on a 13 specified form provided by the Agency for Health Care 14 Administration; providing immunity from liability for 15 owners and administrators under certain circumstances; 16 amending s. 429.29, F.S.; providing that a cause of 17 action does not accrue against an employee or agent of 18 a facility unless the employee or agent has been found 19 personally guilty of a criminal offense that 20 constitutes abuse, neglect, or exploitation; providing 21 an effective date. 22 23 Be It Enacted by the Legislature of the State of Florida: 24 25 Section 1. Subsections (1) and (4) of section 429.26, 26 Florida Statutes, are amended to read: 27 429.26 Appropriateness of placements; examinations of 28 residents.— 29 (1) The owner or administrator of a facility is responsible 30 for arranging a medical evaluation to determinedeterminingthe 31 appropriateness of admission of an individual to the facility 32 and for arranging a medical reevaluation at least annually or 33 when a significant change in condition is observed and reported 34 to the administrator regardingdeterminingthe continued 35 appropriateness of residence of an individual in the facility. A 36 determination shall be based upon an assessment of the 37 strengths, needs, and preferences of the resident, the care and 38 services offered or arranged for by the facility in accordance 39 with facility policy, and any limitations in law or rule related 40 to admission criteria or continued residency for the type of 41 license held by the facility under this part. The owner or 42 administrator shall base his or her determination of the initial 43 and continuing appropriateness of placement of a resident in a 44 facility on a medical examination report, conducted within 60 45 days prior to admission, by any of the following licensed health 46 care providers: a physician, physician assistant, or nurse 47 practitioner. A resident may not be moved from one facility to 48 another without consultation with and agreement from the 49 resident or, if applicable, the resident’s representative or 50 designee or the resident’s family, guardian, surrogate, or 51 attorney in fact. In the case of a resident who has been placed 52 by the department or the Department of Children and Family 53 Services, the administrator must notify the appropriate contact 54 person in the applicable department. 55 (4) If possible, each resident shall have been examined by 56 a licensed physician, a licensed physician assistant, or a 57 licensed nurse practitioner within 60 days before admission to 58 the facility. The signed and completed medical examination 59 report, which is recorded on AHCA Form 1823, the Resident Health 60 Assessment for Assisted Living Facilities, as required by Rule 61 58A-5.0181(2)(b), Florida Administrative Code, shall be 62 submitted to the owner or administrator of the facility who 63 shall use the information contained therein to assist in the 64 determination of the appropriateness of the resident’s admission 65 and continued stay in the facility. The owner or administrator 66 is required to ensure that the AHCA Form 1823 is completed 67 thoroughly. An owner or administrator who obtains this medical 68 evaluation and verifies its completeness is not personally 69 liable in any administrative, civil, or criminal action for any 70 error in determining that a resident is appropriate for 71 admission or continued residency. The medical examination report 72 shall become a permanent part of the record of the resident at 73 the facility and shall be made available to the agency during 74 inspection or upon request. An assessment that has been 75 completed through the Comprehensive Assessment and Review for 76 Long-Term Care Services (CARES) Program fulfills the 77 requirements for a medical examination under this subsection and 78 s. 429.07(3)(b)6. 79 Section 2. Subsection (1) of section 429.29, Florida 80 Statutes, is amended to read: 81 429.29 Civil actions to enforce rights.— 82 (1) Any person or resident whose rights as specified in 83 this part are violated shall have a cause of action that. The84actionmay be brought by the resident or the resident’shis or85herguardian, or by a person or organization acting on behalf of 86 a resident with the consent of the resident or the resident’s 87his or herguardian, or by the personal representative of the 88 estate of a deceased resident regardless of the cause of death. 89 If the action alleges a claim for the resident’s rights or for 90 negligence that caused the death of the resident, the claimant 91 shall be required to elect either survival damages pursuant to 92 s. 46.021 or wrongful death damages pursuant to s. 768.21 before 93 the initial pretrial conference. If the action alleges a claim 94 for the resident’s rights or for negligence that did not cause 95 the death of the resident, the personal representative of the 96 estate may recover damages for the negligence that caused injury 97 to the resident. The action may be brought in any court of 98 competent jurisdiction to enforce such rights and to recover 99 actual damages, and punitive damages for violation of the rights 100 of a resident or negligence. Any resident who prevails in 101 seeking injunctive relief or a claim for an administrative 102 remedy is entitled to recover the costs of the action and a 103 reasonable attorneyattorney’sfee assessed against the 104 defendant not to exceed $25,000. Fees shall be awarded solely 105 for the injunctive or administrative relief and not for any 106 claim or action for damages whether such claim or action is 107 brought together with a request for an injunction or 108 administrative relief or as a separate action, except as 109 provided under s. 768.79 or the Florida Rules of Civil 110 Procedure. Sections 429.29-429.298 provide the exclusive remedy 111 for a cause of action for recovery of damages for the personal 112 injury or death of a resident arising out of negligence or a 113 violation of rights specified in s. 429.28 and preclude a cause 114 of action under s. 415.111 against an employee or agent of a 115 facility licensed under this part unless the employee or agent 116 has been found personally guilty of a criminal offense that 117 constitutes abuse, neglect, or exploitation as defined in s. 118 415.102 as the result of a trial or entry of a plea of guilty or 119 nolo contendere, regardless of adjudication. This section does 120 not preclude theories of recovery not arising out of negligence 121 or s. 429.28 which are available to a resident or to the agency. 122 The provisions of chapter 766 do not apply to any cause of 123 action brought under ss. 429.29-429.298. 124 Section 3. This act shall take effect July 1, 2013.