The purpose and effect of the proposed rule amendments are to delete specific language regarding licensure and background screening requirements. These specific requirements are included under the Agency for Health Care Administration’s (AHCA) core ...

DEPARTMENT OF ELDER AFFAIRS
Federal Aging Programs

Rule No.: RULE TITLE
58A-5.014: License Application, Change of Ownership, and Provisional Licenses
58A-5.015: License Renewal and Conditional Licenses
58A-5.019: Staffing Standards
58A-5.024: Records
58A-5.033: Administrative Enforcement
PURPOSE AND EFFECT: The purpose and effect of the proposed rule amendments are to delete specific language regarding licensure and background screening requirements. These specific requirements are included under the Agency for Health Care Administration’s (AHCA) core licensure and background screening statutes and rules, which are referenced in these rule amendments.
SUBJECT AREA TO BE ADDRESSED: These rule amendments delete specific language regarding licensure and background screening requirements, which are included under AHCA’s core licensure and background screening statutes and rules.
SPECIFIC AUTHORITY: 429.07, 429.275, 429.41, 429.42, 429.52 FS.
LAW IMPLEMENTED: 429.02, 429.04, 429.07, 429.075, 429.08, 429.11, 429.12, 429.14, 429.17, 429.174, 429.19, 429.24, 429.256, 429.26. 429.27, 429.275, 429.28, 429.34, 429.35, 429.41, 429.44, 429.445, 429.47, 429.52 FS.
IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
TIME AND DATE: December 14, 2010, 9:30 a.m. – 10:30 a.m.
PLACE: Department of Elder Affairs, 4040 Esplanade Way, Conference Room 225F, Tallahassee, FL 32399-7000
IF NOT REQUESTED IN WRITING BY DECEMBER 8. 2010, A RULE DEVELOPMENT WORKSHOP WILL NOT BE CONDUCTED.
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 72 hours before the workshop/meeting by contacting: Jim Crochet, Department of Elder Affairs, Office of the General Counsel, 4040 Esplanade Way, Suite 315, Tallahassee, FL 32399-7000; Telephone number: [phone]; Email address: [e-mail]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Jim Crochet, Department of Elder Affairs, Office of the General Counsel, 4040 Esplanade Way, Suite 315, Tallahassee, FL 32399-7000; Telephone number: [phone]; Email address: [e-mail]

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

58A-5.014 License Application, Change of Ownership, and Provisional Licenses.

(1) LICENSE APPLICATION. An applicant for a standard assisted living facility (ALF) license, or a limited mental health (LMH), extended congregate care (ECC), or limited nursing services (LNS) license should be aware that he or she may obtain a license application package from the Agency Central Office, pursuant to Rule 59A-35.060, F.A.C.

(a) The completed application shall be signed, under oath, by an owner (or corporate officer if the owner is a corporation), the administrator, or an individual designated in writing by an owner or corporate officer, who is at least 18 years old. The applicant must be aware that a complete application package consists of shall include the following:

1. Application forms pursuant to Rule 59A-35.060, F.A.C. The Assisted Living Facilities (ALF) License Application, AHCA Form 3110-1008, January 2006, and the Assisted Living Facility Licensure Application Addendum, AHCA Form 3110-1016, January 2006, which are incorporated by reference and can be obtained from the Agency Central Office, with all requested information provided as specified in Section 429.11(3), F.S.

2. Proof of financial ability to operate pursuant to Rule 59A-35.062, F.A.C. An assets and liabilities statement, or AHCA Form 3180-1003, January 1998, which is incorporated by reference. The assets and liabilities statement shall include information about the assets available to cover claims against the owner and administrator and to demonstrate that the applicant has the financial ability to operate.

3. No change.

4. If the proposed facility will be part of a continuing care retirement community, a copy of the Certificate of Authority to offer continuing care agreements issued pursuant to Chapter 651, F.S. The certificate may be used in lieu of fiscal documentation specified in subparagraphs 2. and 3. of this subsection.

5. No change.

6. For applicants anticipating a licensed capacity of 14 or fewer residents and located in an area zoned single-family or multi-family, documentation of compliance with the community residential home requirements specified in Chapter 419, F.S., obtained from the Department of Children and Families Family Services’ district community residential home coordinator. If not located in an area zoned single-family or multi-family, Local Zoning Form, AHCA Form 3180-1021, Local Zoning Form, September 1996, which is incorporated by reference, or a letter signed by from the local zoning authority, signed by the county zoning official, which states that the applicant is in compliance with local zoning ordinances, must be submitted.

7. Proof of legal right to occupy the property which may include copies of recorded deeds, or copies of lease or rental agreements, contracts for deeds, quitclaim deeds, or other such documentation.

7.8. Documentation of a satisfactory fire safety inspection conducted by the local authority having jurisdiction over fire safety or by the State Fire Marshal.

8.9. Documentation of a satisfactory sanitation inspection by the county health department.

9.10. Documentation of background screening pursuant to Section 429.174, F.S., and Rule 59A-35.090, F.A.C. For each person specified in Section 429.174(1), F.S.:

a. A set of fingerprints obtained from the nearest available local law enforcement agency on the fingerprint card provided by the Agency; and

b. A check or money order to cover the cost of screening.

11. In lieu of the requirements of subparagraph 10., the following may be substituted: proof of compliance with the Level 2 background screening requirements of Section 435.04, F.S., conducted within the last five (5) years pursuant to a facility or professional license requirement of the Agency or the Department of Health, a copy of the professional or facility license, and an affidavit of current compliance with Level 2 background screening standards. For owners, administrators, and financial officers of continuing care retirement communities, proof of compliance with the background screening requirements of Rule 69O-193.060, F.A.C., conducted within the last five (5) years, may be substituted.

10.12. A copy of any surety bond required pursuant to Rule 58A-5.021, F.A.C.

11.13. A copy of the proposed facility’s floor plan indicating those areas to be licensed as an assisted living facility and, if applicable, the distinct part to be licensed as an extended congregate care facility if the entire assisted living facility is not to be so licensed.

12.14. Certificates of Occupancy shall be required from authorities charged with seeing that new buildings or renovations to existing buildings comply with state and local building codes. This must be provided at the time of the agency survey.

(b) If the Agency Central Office delivers a letter notifying the applicant of apparent errors or omissions in the application, then the applicant must respond with the required information no later than twenty-one (21) days from the date of the Agency’s one omission letter. If the required information is not received by the Agency within the twenty-one (21) day timeframe, the Agency shall deem the application incomplete and shall issue a notice of intent to deny the application.

(b)(c) An applicant for a limited mental health, extended congregate care, or limited nursing services license must concurrently apply for, or hold, a standard license and in addition, must comply, in addition, with the applicable requirements of Rules 58A-5.029, 58A-5.030, and 58A-5.031, F.A.C., respectively. These specialty licenses shall only be issued to a facility holding a standard license.

(c)(d) Pursuant to Chapter 408, Part II, F.S., and Rule 58A-35.060, F.A.C., tThe applicant should be aware that the application package must shall be submitted to the Agency Central Office and be accompanied by a license fee in the form of a check or money order payable to the State of Florida. The license fee shall be in accordance with Section 429.07, F.S. With respect to the fee per bed required for a standard license, the number of OSS recipients claimed shall be the average number per month residing in the facility during the previous license period. An additional per bed charge shall be added to the bed fee for facilities whose average number of OSS residents per month was less than the number of beds designated for OSS recipients during the previous license period.

1. The fee for any special license shall be in addition to the standard license fee required by statute. When a special license is requested during a facility’s standard license period, the fee will be prorated so that the special license will expire at the same time as the facility’s standard license.

2. One check or money order can be submitted to cover all license fees and background screening costs.

3. For checks returned from the applicant’s bank for whatever reason, the agency shall add to the amount due a service fee of $20 or 5 percent of the face amount of the check, whichever is greater, up to a maximum charge of $200.

(e) Upon submission of all documentation required under this subsection and fees, and notification to the Agency Field Office that the applicant is ready for survey, the Field Office shall conduct a survey of the facility in accordance with Section 429.28(3), F.S.

(2) CHANGE OF OWNERSHIP (CHOW).

(a) ALF providers should be aware that a change of ownership must comply with Chapter 408, Part II, F.S. and Rule 59A-35.070, F.A.C. Pursuant to Section 429.12, F.S., the transferor shall notify the agency in writing, at least 60 days prior to the date of transfer of ownership.

(b) Completed applications shall be filed with the Agency by the transferee at least 60 days before the date of transfer of ownership as required by Section 429.12, F.S., and must include the information and fees required under subsection (1) of this rule. An application package for a change of ownership of a currently licensed facility is available from the Agency Central Office.

(b)(c) At the time of transfer of ownership, all resident funds on deposit, advance payments of resident rents, resident security deposits and resident trust funds held by the current licensee shall be transferred to the applicant. Proof of such transfer shall be provided to the agency at the time of the agency survey and prior to the issuance of a standard license. This provision does not apply to entrance fees paid to a continuing care facility subject to the acquisition provisions in Section 651.024, F.S.

1. through 2. No change.

(c)(d) The current resident contract on file with the facility shall be considered valid until such time as the transferee is licensed and negotiates a new contract with the resident.

(d)(e) Failure to apply for a change of ownership of a licensed facility as required by Section 429.12, F.S., shall result in a fine levied by the Agency pursuant to Section 429.19, F.S.

(f) During a change of ownership, the owner of record is responsible for ensuring that the needs of all residents are met at all times in accordance with Part III of Chapter 400, F.S., and this rule chapter.

(g) If applicable, the transferor shall comply with Section 408.831(2), F.S., prior to Agency approval of the change of ownership application.

(3) PROVISIONAL LICENSE.

ALF providers should be aware that a provisional license may be issued pursuant to Section 408.808(2), F.S., and Rule 59A-35.080, F.A.C.

(a) The agency shall issue a provisional license to an applicant making an initial application for a standard license or who has filed a completed application for a change of ownership, if the applicant has met all other licensing requirements and is:

1. Waiting for the receipt of Federal Bureau of Investigation background screening results; or

2. Waiting for a response to a request for an exemption from the background screening standards listed in Section 435.03 or 435.05, F.S., as applicable, provided that the exemption from disqualification request is for: felonies committed more than 10 years ago; misdemeanors, including offenses that were felonies when committed but are now misdemeanors; findings of delinquency; and acts of domestic violence committed more than 5 years ago.

(b) A provisional license issued pursuant to an initial application for license shall not be considered equivalent to a standard license for the purposes of issuing a limited mental health, extended congregate care, or limited nursing services license.

(c) A provisional license issued pursuant to a change of ownership application shall be considered equivalent to a standard license for the purpose of issuing a limited mental health, extended congregate care, or limited nursing services license.

(d) A provisional license shall be issued for a specific period of time as determined by the agency provided such time is not less than 1 month nor for more than 6 months.

(4) LICENSE DENIAL. Owners denied a license shall be notified by the agency of their right to appeal the denial, the remedies available, and the time limit for requesting such remedies as provided under Part II of Rule Chapter 59-1, F.A.C. and Chapter 120, F.S.

Rulemaking Specific Authority 429.07, 429.41 FS. Law Implemented 429.02, 429.04, 429.07, 429.08, 429.11, 429.12, 429.174, 429.27, 429.275, 429.41, 429.44, 429.445, 429.47 FS. History–New 5-14-81, Amended 1-6-82, 5-19-83, 9-17-84, Formerly 10A-5.14, Amended 10-20-86, 6-21-88, 8-15-90, 9-30-92, Formerly 10A-5.014, Amended 10-30-95, 4-20-98, 10-17-99, 7-30-06,________.

 

58A-5.015 License Renewal and Conditional Licenses.

(1) LICENSE RENEWAL. ALF providers should be aware that a license renewal must be in accordance with Chapters 408, Part II, and 429, Part I, F.S., this rule and Rule Chapter 59A-35, F.A.C. Every two years, the Agency Central Office shall provide applications for license renewal, either electronically or my mail, to licensees no less than 120 days prior to the expiration of the current license. Applications shall be postmarked or hand delivered to the Agency a minimum of 90 days prior to the expiration date appearing on the currently held license. Failure to file a timely application shall result in a late fee charged to the facility as described in Section 429.17, F.S.

(a) In addition to the requirements in Chapter 408, Part II, F.S. and Rule Chapter 59A-35, F.A.C., aAll applicants for renewal of a license must shall submit the following:

1. An Assisted Living Facilities (ALF) License Application AHCA Form 3110-1008, January 2006 and the Assisted Living Facility Licensure Application Addendum, AHCA Form 3110-1016, January 2006, completed as required under Rule 58A-5.014, F.A.C.

2. Proof of liability insurance as required by Rule 58A-5.021, F.A.C.

1.3. A copy of the annual fire safety inspection conducted by the local authority having jurisdiction over fire safety or the State Fire Marshal. Documentation of a satisfactory fire safety inspection shall be provided at the time of the agency’s biennial survey.

2.4. A copy of the annual sanitation inspection by the county health department. Documentation of a satisfactory sanitation inspection shall be provided at the time of the agency’s biennial survey.

5. An affidavit of current compliance with level 1 and 2 background screening conducted pursuant to Section 429.174, F.S.

3.6. A copy of any surety bond or continuation bond required by Rule 58A-5.021, F.A.C.

4.7. A copy of the facility’s floor plan if different from the previous application.

(b) If the Agency Central Office delivers a letter notifying the applicant of apparent errors or omissions in the application, then the applicant must respond with the required information no later than twenty-one (21) days from the date of the Agency’s one omission letter. If the required information is not received by the Agency within the twenty-one (21) day time frame, the Agency shall deem the application incomplete and shall issue a notice of intent to deny the application.

(c) Applicants for renewal of a license shall not be required to provide proof of financial ability to operate unless the facility or any other facility owned or operated in whole or part by the same owner or business entity has demonstrated financial instability as described in Rule 58A-5.021, F.A.C.

(b)(d) Applicants for renewal of licenses shall remit license fees as required by Section 429.07, F.S., and Rule 58A-5.014, F.A.C. With respect to the fee per bed required for a standard license, the number of OSS recipients claimed shall be the average number per month residing in the facility during the previous license period. An additional per bed charge shall be added to the bed fee for facilities whose average number of OSS residents per month was less than the number of beds designated for OSS recipients during the previous license period.

(2) CONDITIONAL LICENSE. Except as provided under Section 429.14, F.S., the agency shall issue a conditional license to a facility if, at the time of license renewal the facility is found to have uncorrected violations which the facility has had an opportunity to correct.

(a) The issuance of a conditional license shall be contingent upon agency approval of a written plan of correction which includes corrective steps that will be taken to eliminate the deficiencies and a timetable for correction of the deficiencies by the expiration date of the conditional license.

(a)(b) A conditional license shall be issued by the agency only for that time period necessary to comply with applicable licensing standards and complete license renewal procedures, but not to exceed 6 months.

(b)(c) A conditional license shall be revoked if subsequent follow-up surveys by the agency indicate that necessary progress has not been made toward compliance with applicable licensing standards.

(c)(d) The issuance of a conditional license does not change the biennial license expiration date.

(3) LICENSE DENIAL. Pursuant to Section 429.14, F.S., agency notice of license denial following a renewal application shall be posted and visible to the public at the facility.

(a) Applicants denied a license shall be notified by the agency of their right to appeal the denial, the remedies available, and the time limit for requesting such remedies as provided under Part II of Rule Chapter 59-1, F.A.C. and Chapter 120, F.S.

(b) Pursuant to Section 429.14, F.S., agency notice of license denial following a renewal application shall be posted and visible to the public at the facility.

Rulemaking Specific Authority 429.41 FS. Law Implemented 429.02, 429.04, 429.07, 429.11, 429.14, 429.17, 429.174, 429.27, 429.275, 429.41, 429.47 FS. History–New 10-17-99, Amended 7-30-06,________.

 

58A-5.019 Staffing Standards.

(1) ADMINISTRATORS. Every facility shall be under the supervision of an administrator who is responsible for the operation and maintenance of the facility including the management of all staff and the provision of adequate care to all residents as required by Part I of Chapter 429, F.S., and this rule chapter.

(a) The administrators shall:

1. through 2. No change.

3. Be in compliance with Level 2 background screening standards pursuant to Section 429.174, F.S., and be aware of the requirements of Rule 59A-35.090, F.A.C.; and

4. No change.

(b) Administrators may supervise a maximum of either three assisted living facilities or a combination of housing and health care facilities or agencies on a single campus. However, administrators, who supervise more than one facility, shall appoint in writing a separate “manager” for each facility who must:

1. through 2. No change.

(c) Pursuant to Section 429.176, F.S., facility owners shall notify both the Agency Field Office and Agency Central Office prior to within ten (10) days of a change in a facility administrator on the Notification of Change of Administrator, AHCA Form 3180-1006, January 2006, which is incorporated by reference and may be obtained from the Agency Central Office. The Agency Central Office shall conduct a background screening on the new administrator in accordance with Section 429.174, F.S., and Rule 58A-5.014, F.A.C.

(2) No change.

(3) BACKGROUND SCREENING.

ALF providers must comply with Section 429.174, F.S., and be aware of the requirements of Rule 59A-35.090, F.A.C., both pertaining to background screening requirements.

(a) All staff who are hired on or after October 1, 1998, to provide personal services to residents, must be screened in accordance with Section 429.174, F.S., and meet the screening standards of Section 435.03, F.S. A packet containing background screening forms and instructions may be obtained from the Agency Background Screening Unit, 2727 Mahan Drive, Tallahassee, FL 32308; telephone [phone]. Within ten (10) days of an individual’s employment, the facility shall submit the following to the Agency Background Screening Unit:

1. A completed Level 1 Criminal History Request, AHCA Form 3110-0002, July 2005, which is incorporated by reference and may be obtained in the screening packet referenced in paragraph (3)(a) of this rule; and

2. A check to cover the cost of screening.

(b) The results of employee screening conducted by the agency shall be maintained in the employee’s personnel file.

(c) Staff with the following documentation in their personnel records shall be considered to have met the required screening requirement:

1. A copy of their current professional license, proof that a criminal history screening has been conducted, and an affidavit of current compliance with Section 435.03, F.S.;

2. Proof of continuous employment in an occupation which requires Level 1 screening without a break in employment that exceeds 180 days, and proof that a criminal history screening has been conducted within the previous two (2) years; or

3. Proof of employment with a corporation or business entity or related entity that owns, operates, or manages more than one facility or agency licensed under Chapter 400, F.S., that conducted Level 1 screening as a condition of initial or continued employment.

(4) No change.

Rulemaking Authority 429.41, 429.52, 429.275 FS. Law Implemented 429.02, 429.174, 429.24, 429.275, 429.41, 429.52 FS. History–New 5-14-81, Amended 1-6-82, 9-17-84, Formerly 10A-5.19, Amended 10-20-86, 6-21-88, 8-15-90, 9-30-92, Formerly 10A-5.019, Amended 10-30-95, 4-20-98, 11-2-98, 10-17-99, 7-30-06, 4-15-10,________.

 

58A-5.024 Records.

The facility shall maintain the following written records in a form, place and system ordinarily employed in good business practice and accessible to Department of Elder Affairs and Agency staff.

(1) No change.

(2) STAFF RECORDS.

(a) Personnel records for each staff member shall contain, at a minimum, a copy of the original employment application with references furnished and verification of freedom from communicable disease including tuberculosis. In addition, records shall contain the following, as applicable:

1. through 2. No change.

3. Documentation of compliance with level 2 1 background screening for all staff subject to screening requirements as required under Section 429.174, F.S. and Rule 58A-5.019, F.A.C.

4. through 5. No change.

(b) through (c) No change.

(3) through (4) No change.

Rulemaking Specific Authority 429.41, 429.275 FS. Law Implemented 429.07, 429.075, 429.24, 429.27, 429.275, 429.28, 429.35, 429.41 FS. History–New 5-14-81, Amended 1-6-82, 5-19-83, 9-17-84, Formerly 10A-5.24, Amended 10-20-86, 6-21-88, 8-15-90, 9-30-92, Formerly 10A-5.024, Amended 10-30-95, 4-20-98, 11-2-98, 10-17-99, 7-30-06, 10-9-06,________.

 

58A-5.033 Administrative Enforcement.

Facility staff shall cooperate with Agency personnel during surveys, complaint investigations, monitoring visits, implementation of correction plans, license application and renewal procedures and other activities necessary to ensure compliance with Part I of Chapter 429, F.S., and this rule chapter.

(1) through (2) No change.

(3) SURVEY DEFICIENCY.

(a) Prior to or in conjunction with a notice of violation issued pursuant to Section 429.19 and Chapter 120, F.S., the agency shall issue a statement of deficiency for Class I, II, III, and IV violations which are observed by Agency personnel during any inspection of the facility. The deficiency statement shall be issued within ten (10) working days of the Agency’s inspection and shall include:

1. No change.

2. A citation to the statute or rule violated; and

3. No change.

4. A request for a plan of correction which shall include time frame for correction of the deficiency; and

5. A description of the administrative sanction that may be imposed if the facility fails to correct the deficiency within the established time frame.

(b) No change.

(c) The facility’s plan of correction must be received by the agency within 10 working days of receipt of the deficiency statement and is subject to approval by the agency.

(4) through (5) No change.

Rulemaking Authority 429.41, 429.42 FS. Law Implemented 429.07, 429.08, 429.11, 429.12, 429.14, 429.17, 429.19, 429.256, 429.26, 429.27, 429.28, 429.34, 429.41, 429.42 FS. History–New 9-30-92, Formerly 10A-5.033, Amended 10-30-95, 10-17-99, 1-9-02, 7-30-06, 4-15-10,________.