The purpose and effect of the proposed rule amendments is to add a definition of “department”; provide the address for facilities to obtain forms for licensure applications; include additional licensure requirements; include an additional ...

DEPARTMENT OF ELDER AFFAIRS
Federal Aging Programs

RULE NO: RULE TITLE
58A-5.0131: Definitions
58A-5.014: License Application, Change of Ownership, and Provisional Licenses
58A-5.016: License
58A-5.0181: Residency Criteria and Admission Procedures
58A-5.0182: Resident Care Standards
58A-5.0183: Advance Directives and Do Not Resuscitate Orders (DNRO)
58A-5.019: Staffing Standards
58A-5.0191: Staff Training Requirements and Competency Test
58A-5.025: Resident Contracts
58A-5.029: Limited Mental Health
58A-5.033: Administrative Enforcement
PURPOSE AND EFFECT: The purpose and effect of the proposed rule amendments is to add a definition of “department”; provide the address for facilities to obtain forms for licensure applications; include additional licensure requirements; include an additional requirement for determining continued residency and changes to AHCA Form 1823, which is incorporated by reference; include changes to resident care standards as in pertains to third party services; include posting of the work schedule for direct care staff as part of the staffing standards; include changes to staff training requirements, specifically HIV/AIDS, pursuant to Section 381.0035, F.S., and additional limited mental health training; include changes to the resident contract, specifically notification that the resident must be assessed for admission as well as for continued residency, requiring use of AHCA Form 1823 for the latter determination; include changes to require facilities to ensure that mental health residents receive appropriate services; and deletion of the use of a temporary license under administrative enforcement. The purpose and effect of a new rule is to outline procedures for advance directives and do not resuscitate orders.
SUBJECT AREA TO BE ADDRESSED: New definition of “department”; address for facilities to obtain forms for licensure applications; additional licensure requirements; additional requirement for determining continued residency; changes to AHCA Form 1823, which is incorporated by reference; changes to resident care standards as in pertains to third party services; posting of the work schedule for direct care staff; changes to staff training requirements, specifically HIV/AIDS, and additional limited mental health training; notification that the resident must be assessed for admission as well as for continued residency, requiring use of AHCA Form 1823 for the latter determination; changes to require facilities to ensure that mental health residents receive appropriate services; deletion of the use of a temporary license; and procedures for advance directives and do not resuscitate orders.
SPECIFIC AUTHORITY: 429.07, 429.15, 429.178, 429.23, 429.24, 429.255, 429.26, 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, 429.15, 429.17, 429.174, 429.176, 429.178, 429.19, 429.24, 429.255, 429.256, 429.23, 429.26, 429.27, 429.275, 429.28, 429.34, 429.41, 429.42, 429.44, 429.445, 429.47, 429.52 FS.
A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: January 7, 2009, 9:00 a.m. – 12:00 noon EST.
PLACE: Department of Elder Affairs, Conference Room 225F, 4040 Esplanade Way, Tallahassee, Florida 32399-7000
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, Tallahassee, Florida 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, Tallahassee, Florida 32399-7000; telephone number: [phone]; Email address: [e-mail]

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

58A‑5.0131 Definitions.

In addition to the terms defined in Section 429.02, F.S., the following definitions are applicable in this rule chapter:

(1) through (10) No change.

(11) “Department” means the Department of Elder Affairs.

(11) through (34) renumbered (12) through (35) No change.

(35) “Temporary license” means a license issued by Agency for Health Care Administration to an assisted living facility that supersedes and temporarily replaces the current license and remains in place pending the final disposition of a proceeding involving the suspension or revocation of an assisted living facility license.

(36) through (37) No change.

Specific Authority 429.23, 429.41 FS. Law Implemented 429.02, 429.07, 429.075, 429.11, 429.14, 429.178, 429.19, 429.255, 429.23, 429.28, 429.41, 429.47, 429.52 FS. History–New 9‑30‑92, Formerly 10A‑5.0131, Amended 10‑30‑95, 6‑2‑96, 4‑20‑98, 10-17-99, 1-9-02, 7-30-06,________.

 

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 may obtain a license application package from the Agency Central Office.

(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 complete application must shall include the following:

1. 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. Both forms are hereby incorporated by reference and available from the Agency Central Office at the address specified in Rule 58A-5.0131, F.A.C.

2. An assets and liabilities statement, or AHCA Form 3180‑1003, January 1998, which is incorporated by reference and available from the Agency Central Office at the address specified in Rule 58A-5.0131, F.A.C. 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. A statement of operations, or AHCA Form 3180‑1002, July 1995, which is incorporated by reference and available from the Agency Central Office at the address specified in Rule 58A-5.0131, F.A.C. The statement of operations shall include projected revenues, expenses, taxes, extraordinary items, and other credits or charges for the first 12 months of operation.

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

5. No change.

6. For applicants applying for anticipating a licensed capacity of 14 or fewer residents and the home is 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 Family Services’ district community residential home coordinator. If not located in an area zoned single-family or multi-family, one of the following documentations must be submitted to the agency:, Local Zoning Form, AHCA Form 3180-1021, September 1996, which is incorporated by reference or a letter from the local zoning authority, signed by the county zoning official, which states that the applicant is in compliance with local zoning ordinances.

a. AHCA Form 3180-1021, Local Zoning Form, September 1996, which is hereby incorporated by reference and available from the Agency Central Office at the address specified in Rule 58A-5.0131, F.A.C.; or

b. A letter from the local zoning authority, signed by the county zoning official, which states that the applicant is in compliance with local zoning ordinances.

7. through 14. No change.

(b) through (e) No change.

(2) CHANGE OF OWNERSHIP (CHOW).

(a) through (e) No change.

(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 42900, F.S., and this rule chapter.

(g) No change.

(3) through (4) No change.

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‑5.016 License Requirements.

(1) through (6) No change.

(7) The facility administer or designee must identify Medicaid waiver residents to the agency and the department for monitoring purposes authorized by state and federal laws.

(8) The facility administer or designee must ensure that residents requiring services from an outside entity as described on AHCA Form 1823 receive those services. The form is incorporated by reference in paragraph 58A-5.0181(2)(b), F.A.C.

(9) In instances when a resident arranges for services as a result of a third party care plan, the facility administrator or designee, when notified by the resident, must ensure that he or she receives those services, unless the resident expressly does not wish the facility’s involvement in the delivery of the services.

(10) The facility administer or designee must coordinate with the service provider in an effort to ensure that the service goals are met, with the exception referenced in subsection (9) of this rule.

Specific Authority 429.41 FS. Law Implemented 429.07, 429.11, 429.12, 429.41, 429.44, 429.445 FS. History–New 5‑15‑81, Amended 1‑6‑82, 9‑17‑84, Formerly 10A‑5.16, Amended 6‑21‑88, 9‑30‑92, Formerly 10A‑5.016, Amended 10‑30‑95, 10-17-99, 7-30-06,________.

 

58A-5.0181 Residency Criteria and Admission Procedures, Appropriateness of Placement and Continued Residency Criteria.

(1) No change.

(2) HEALTH ASSESSMENT.

(a) The medical examination report must be completed within 60 days prior to the individual’s admission to a facility pursuant to Section 429.26(4), F.S. A medical examination must be completed annually thereafter or after a significant change, as defined in Rule 58A-5.0131, F.A.C. The report must shall address the following:

1. through 8. No change.

(b) Medical examinations completed after the admission of the resident to the facility must be completed within 30 days of the date of admission and must be recorded on the Resident Health Assessment For Assisted Living Facilities (ALF), AHCA Form 1823,________2009 January 2006, which is hereby incorporated by reference. A faxed copy of the completed form is acceptable. A copy of AHCA Form 1823 may be obtained from the Agency Central Office or its website at www.fdhc.state.fl.us/MCHQ/Long_Term_Care/Assisted_living/pdf/AHCA_Form_1823%_Jan_2006_.pdf. (New form date [_____2009] Previous versions of this form completed up to six (6) months after 7-30-06 are acceptable.

(c) through (g) No change.

(3) ADMISSION PACKAGE.

(a) The facility shall make available to potential residents a written statement(s) which includes the following information listed below. A copy of the facility resident contract or facility brochure containing all the required information shall meet this requirement:

1. through 10. No change.

11. A statement of the facility policy concerning Do Not Resuscitate Orders pursuant to Section 429.255, F.S., and Advance Directives pursuant to Chapter 765, F.S., and Rule 58A-5.0183, F.A.C.

12. through 14. No change.

(b) Prior to or at the time of admission, the resident, responsible party, guardian, or attorney in fact, if applicable, shall be provided with the following:

1. No change.

2. A copy of the facility statement described in paragraph (a) of this subsection if one has not already been provided;

3. through 4. No change.

(c) No change.

(4) CONTINUED RESIDENCY. Except as follows in paragraphs (a) through (e) of this subsection, cCriteria for continued residency in a facility holding a standard, limited nursing services, or limited mental health license shall be the same as the criteria for admission. A determination of continued residency must be completed at least annually or after a significant change as defined in Rule 58A-5.0131, F.A.C. The facility must make the determination using AHCA Form 1823, which is incorporated by reference in paragraph (2)(b) of this rule. After the effective date of this rule, providers shall have up to 6 months to comply with this requirement., except as follows:

(a) through (e) No change.

(5) No change.

Specific Authority 429.07, 429.26, 429.41 FS. Law Implemented 429.02, 429.07, 429.075, 429.26, 429.41 FS. History–New 9‑17‑84, Formerly 10A‑5.181, Amended 10‑20‑86, 6‑21‑88, 8‑15‑90, 9‑30‑92, Formerly 10A‑5.0181, Amended 10‑30‑95, 6‑2‑96, 10-17-99, 7-30-06, 10-9-06,________.

 

58A-5.0182 Resident Care Standards.

An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility.

(1) through (6) No change.

(7) THIRD PARTY SERVICES. Nothing in this rule chapter is intended to prohibit a resident or the resident’s representative from independently arranging, contracting, and paying for services provided by a third party of the resident’s choice, including a licensed home health agency or private nurse, or receiving services through an out‑patient clinic, provided the resident meets the criteria for continued residency and the resident complies with the facility’s policy relating to the delivery of services in the facility by third parties. The facility’s policies must may require the third party to coordinate with the facility regarding the resident’s condition and the services being provided pursuant to subsection (8) of Rule 58A-5.016, F.A.C., with the exception referenced in subsections (9) and (10) of that rule. Pursuant to subsection (6) of this rule, the facility shall provide the resident with the facility’s policy regarding the provision of services to residents by non-facility staff.

(8) No change.

(9) No change.

Specific Authority 429.02, 429.41 FS. Law Implemented 429.02, 429.255, 429.256, 429.26, 429.28, 429.41 FS. History–New 9‑17‑84, Formerly 10A‑5.182, Amended 10‑20‑86, 6‑21‑88, 8‑15‑90, 9‑30‑92, Formerly 10A‑5.0182, Amended 10‑30‑95, 4‑20‑98, 11-2-98, 10-17-99, 7-30-06, 10-9-06,________.

 

58A-5.0183 Advance Directives and Do Not Resuscitate Orders (DNRO).

(1) POLICIES AND PROCEDURES:

Each assisted living facility (ALF) must have written policies and procedures, which delineate its position with respect to state laws and rules relative to advance directives. These policies and procedures shall not condition treatment or admission upon whether or not the individual has executed or waived an advance directive. In the event of conflict between the ALF’s policies and procedures and the resident’s advance directive, provision should be made in accordance with Chapter 765, F.S. The ALF’s policy shall include the following:

(a) Providing each resident, or the resident’s representative, with the following information at the time of admission:

1. A copy of Form SCHS-4-2006, “Health Care Advance Directives – The Patient’s Right to Decide,” effective April 2006, or with a copy of some other substantially similar document which incorporates information regarding advance directives included in Chapter 765, F.S.  Form SCHS-4-2006 is hereby incorporated by reference and is available from the Agency for Health Care Administration, 2727 Mahan Drive, Mail Stop 34, Tallahassee, FL 32308, or the agency’s Web site at: http://ahca.myflorida.com/MCHQ/Health_Facility_Regulation/HC_Advance_Directives/docs/adv_dir.pdf.

2. Written information concerning the ALF’s policies regarding resuscitation and advance directives, including information concerning DH Form 1896, Florida Do Not Resuscitate Order Form, incorporated by reference in Rule 64E-2.031, F.A.C.

(b) The requirement that documentation must be contained in the resident’s record indicating whether or not the resident has executed an advance directive. If an advanced directive has been executed, a copy of that document must be made a part of the resident’s record. If the ALF does not receive a copy of a resident’s executed advanced directive, the ALF must document in the resident’s record that it has requested a copy.

(2) LICENSE REVOCATION.

An ALF shall be subject to revocation of its license pursuant to Section 408.815, F.S., if, as a condition of treatment or admission, it requires an individual to execute or waive an advance directive, pursuant to Section 765.110, F.S.

(3) DNRO PROCEDURES.

Pursuant to Section 429.255, F.S., an ALF should honor a DNRO as follows:

(a) In the event of cardiopulmonary distress, immediately contact “911.”

(b) Cardiopulmonary resuscitation may be withheld or withdrawn from a resident only under the following conditions:

1. A valid DNRO is present; and

2. An individual, pursuant to Section 401.25, F.S., withholds or withdraws cardiopulmonary resuscitation.

(4) LIABILITY.

Pursuant to Section 429.255, F.S., ALF providers shall not be subject to criminal prosecution or civil liability, nor be considered to have engaged in negligent or unprofessional conduct, for following the procedures set forth in subsection (3) of this rule, which involves withholding or withdrawing cardiopulmonary resuscitation pursuant to a Do Not Resuscitate Order and rules adopted by the department. Any ALF provider, who, in good faith, obeys the directives of an existing DNRO, executed pursuant to Section 401.45, F.S., will not be subject to prosecution or civil liability for his or her performance regarding patient care.

Specific Authority 429.255 FS. Law Implemented 429.255 FS. History–New_________.

 

58A‑5.019 Staffing Standards.

(1) through (3) No change.

(4) STAFFING STANDARDS.

(a) Minimum staffing:

1. through 2. No change.

3. In facilities with 8 17 or more residents, there shall be at least one staff member awake at all hours of the day and night.

4. through 8. No change.

(b) No change.

(c) The facility shall maintain a written work schedule which reflects the facility’s 24-hour staffing pattern for a given time period. The work schedule for direct care staff must be posted in a conspicuous area of the facility where residents gather.

(d) through (f) No change.

Specific Authority 429.41, 429.52, 429.275 FS. Law Implemented 429.02, 429.04, 429.174, 429.176, 429.19, 429.24, 429.255, 429.26, 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,________.

 

58A-5.0191 Staff Training Requirements and Competency Test.

(1) through (2) No change.

(3) HUMAN IMMUNODEFICIENCY VIRUS/ ACQUIRED IMMUNE DEFICIENCY SYNDROME (HIV/AIDS). Pursuant to Section 381.0035, F.S., all facility employees, with the exception of employees subject to the requirements of Section 456.033, F.S., must complete biennially, a one-time continuing education course on HIV and AIDS, including the topics prescribed in the Section 381.0035, F.S. New facility staff must obtain the an initial training on HIV/AIDS within 30 days of employment, unless the new staff person previously completed the initial training and has maintained the biennial continuing education requirement. Documentation of compliance must be maintained in accordance with subsection (11) of this rule.

(4) through (7) No change.

(8) LIMITED MENTAL HEALTH TRAINING. Pursuant to Section 429.075, F.S., the administrator, manager, and staff in direct contact with mental health residents in a facility with a limited mental health license must receive a minimum of 6 hours training provided or approved by the Department of Children and Family Services within 6 months of the facility’s receiving a limited mental health license or within 6 months of employment in a facility holding a limited mental health license. Staff in “direct contact” means direct care staff and staff whose duties take them into resident living areas and require them to interact with mental health residents on a daily basis. The term does not include maintenance, food service, or administrative staff if such staff have only incidental contact with mental health residents.

(a) Pursuant to Section 429.075, F.S., the administrator, manager and staff, who have direct contact with mental health residents in a licensed limited mental health facility, must receive the following training:

1. A minimum of 6 hours of specialized training in working with individuals with mental health diagnoses.

a. The training must be provided or approved by the Department of Children and Familes and must be taken within 6 months of the facility’s receiving a limited mental health license or within 6 months of employment in a limited mental health facility.

b. Staff in “direct contact” means direct care staff and staff whose duties take them into resident living areas and require them to interact with mental health residents on a daily basis. The term does not include maintenance, food service or administrative staff, if such staff have only incidental contact with mental health residents.

2. A minimum of 6 hours of specialized continuing education training annually thereafter from a mental health provider in subjects dealing with mental health issues. Administrators, managers and staff affected by this requirement shall have up to  6 months from the effective date of this rule to meet this requirement.

(b)(a) Administrators, managers and staff receiving this training do not have to repeat the initial this training should they change employers provided they present the employee  provides a copy of their the employee’s training certificate to the employee’s current employer for retention in the facility’s personnel files. They must ensure that copies of the continuing education training certificates are retained in their personnel files.

(c)(b) Training received under this subsection may count once for 6 of the 12 hours of continuing education required for administrators and managers under subsection (1) of this rule.

(9) through (11) No change.

Specific Authority 429.178, 429.41, 429.52 FS. Law Implemented 429.07, 429.075, 429.178, 429.41, 429.52 FS. History–New 9-30-92, Formerly 10A-5.0191, Amended 10-30-95, 6-2-96, 4-20-98, 11-2-98, 10-17-99, 7-5-05, 7-30-06, 10-9-06, 7-1-08,_________.

 

58A-5.025 Resident Contracts.

(1) Pursuant to Section 429.24, F.S., prior to or at the time of admission, each resident or the residents legal representative, shall, prior to or at the time of admission, execute a contract with the facility which contains the following provisions:

(a) through (j) No change.

(k) A provision that residents must be assessed upon admission pursuant to subsection (2) of Rule 58A-5.0181, F.A.C., and periodically thereafter pursuant to subsection (4) of that rule.

(2) through (3) No change.

Specific Authority 429.24, 429.41 FS. Law Implemented 429.24, 429.41 FS. History–New 10-17-99, Amended 7-30-06,_________.

 

58A-5.029 Limited Mental Health.

(1) through (2) No change.

(3) RESPONSIBILITIES OF FACILITY. In addition to the staffing and care standards of this rule chapter to provide for the welfare of residents in an assisted living facility, a facility holding a limited mental health license must:

(a) through (e) No change.

(f) Ensure that residents assessed to be in need of mental health services, as indicated in their community living support plan, receive those services.

Specific Authority 429.41 FS. Law Implemented 394.4574, 429.02, 429.075, 429.26, 429.41, 409.912 FS. History–New 8-15-90, Amended 9-30-92, Formerly 10A-5.029, Repromulgated 10-30-95, Amended 6-2-96, 11-2-98, 7-30-06,________.

 

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 (6) No change.

(7) TEMPORARY LICENSE. Temporary licenses as defined in subsection 58A-5.0131(37), F.A.C., may be issued by the Agency upon the initiation of any proceeding pursuant to Section 429.14(8), F.S.

Specific Authority 429.15, 429.23, 429.41, 429.42 FS. Law Implemented 429.07, 429.08, 429.11, 429.12, 429.14, 429.15, 429.17, 429.19, 429.12, 429.23, 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,________.