Senate Bill 1466 (2023) — Health care provider accountability
SB 1466
Florida Bills
Florida Senate - 2023 SB 1466 By Senator Book 35-01345A-23 20231466__ Page 1 of 11 CODING: Words stricken are deletions; words underlined are additions. A bill to be entitled 1
An act relating to health care provider 2 accountability; creating ss. 395.1062 and 400.0232, 3 F.S.; defining the terms “health care practitioner” 4 and “health care worker”; providing criminal and civil 5 immunity to health care workers of hospitals and 6 nursing home facilities, respectively, who carry out 7 directives of a supervising health care practitioner 8 or entity; providing an exception; amending s. 9 400.141, F.S.; requiring the Agency for Health Care 10 Administration to provide a report on the success of 11 the personal care attendant program to the Governor 12 and the Legislature by a specified date each year; 13 providing requirements for the report; requiring 14 nursing home facilities to report to the agency common 15 ownership relationships they or their parent companies 16 share with certain entities; requiring the agency to 17 work with stakeholders to determine how such reporting 18 shall be conducted; requiring the agency to submit a 19 report of such reported common ownership relationships 20 to the Governor and the Legislature by a specified 21 date each year; requiring the agency to adopt rules; 22 amending s. 409.908, F.S.; revising the rate 23 methodology for the agency’s long-term care 24 reimbursement plan; requiring the agency to add a 25 quality metric to its Quality Incentive Program for a 26 specified purpose; providing an effective date. 27 28 Be It Enacted by the Legislature of the State of Florida: 29
Florida Senate - 2023 SB 1466 35-01345A-23 20231466__ Page 2 of 11 CODING: Words stricken are deletions; words underlined are additions. 30
Section
Section 395.1062, Florida Statutes, is created 31 to read: 32 395.1062 Immunity from liability; certain health care 33 workers.— 34
(1) As used in this section, the term: 35 (a) “Health care practitioner” has the same meaning as 36 provided in s. 456.001. 37 (b) “Health care worker” means a health care practitioner 38 or a person otherwise licensed, registered, or certified to 39 provide health care services in this state. The term also 40 includes unlicensed persons authorized by law to perform tasks 41 delegated by, or provide health care services under the 42 supervision of, a licensed, registered, or certified person or 43 entity. 44
(2) A health care worker of a hospital who carries out the 45 directive of a supervising health care practitioner or hospital 46 is not subject to criminal prosecution or civil liability, and 47 is deemed not to have engaged in unprofessional conduct, as a 48 result of carrying out the health care directive. 49
(3) This
section does not apply if it is shown by a 50 preponderance of the evidence that the health care worker did 51 not, in good faith, comply with the minimum standards of 52 acceptable and prevailing practice, including, but not limited 53 to, engaging in acts for which the health care worker is not 54 qualified by training or experience. 55
Section
Section 400.0232, Florida Statutes, is created 56 to read: 57 400.0232 Immunity from liability; certain health care 58
Florida Senate - 2023 SB 1466 35-01345A-23 20231466__ Page 3 of 11 CODING: Words stricken are deletions; words underlined are additions. workers.— 59
(1) As used in this section, the term: 60 (a) “Health care practitioner” has the same meaning as 61 provided in s. 456.001. 62 (b) “Health care worker” means a health care practitioner 63 or a person otherwise licensed, registered, or certified to 64 provide health care services in this state. The term also 65 includes unlicensed persons authorized by law to perform tasks 66 delegated by, or provide health care services under the 67 supervision of, a licensed, registered, or certified person or 68 entity. 69
(2) A health care worker who carries out the directive of a 70 supervising health care practitioner, a nursing home 71 administrator, or a nursing home facility is not subject to 72 criminal prosecution or civil liability, and is deemed not to 73 have engaged in unprofessional conduct, as a result of carrying 74 out the health care directive. 75
(3) This
section does not apply if it is shown by a 76 preponderance of the evidence that the health care worker did 77 not, in good faith, comply with the minimum standards of 78 acceptable and prevailing practice, including, but not limited 79 to, engaging in acts for which the health care worker is not 80 qualified by training or experience. 81
Section 3. Paragraph (
w) of subsection (1) of
section 82 400.141, Florida Statutes, is amended, and paragraph (
x) is 83 added to that subsection, to read: 84 400.141 Administration and management of nursing home 85 facilities.— 86
(1) Every licensed facility shall comply with all 87
Florida Senate - 2023 SB 1466 35-01345A-23 20231466__ Page 4 of 11 CODING: Words stricken are deletions; words underlined are additions. applicable standards and rules of the agency and shall: 88 (
w) Be allowed to employ personal care attendants as 89 defined in s. 400.211(2)(d), if such personal care attendants 90 are participating in the personal care attendant training 91 program developed by the agency, in accordance with 42 C.F.R. 92 ss. 483.151-483.154, in consultation with the Board of Nursing. 93 1. The personal care attendant program must consist of a 94 minimum of 16 hours of education and must include all of the 95 topics and lessons specified in the program curriculum. 96 2. The program curriculum must include, but need not be 97 limited to, training in all of the following content areas: 98 a.
Residents’ rights. 99 b. Confidentiality of residents’ personal information and 100 medical records. 101 c. Control of contagious and infectious diseases. 102 d. Emergency response measures. 103 e. Assistance with activities of daily living. 104 f. Measuring vital signs. 105 g. Skin care and pressure sores prevention. 106 h. Portable oxygen use and safety. 107 i. Nutrition and hydration. 108 j. Dementia care. 109 3. A personal care attendant must complete the 16 hours of 110 required education before having any direct contact with a 111 resident. 112 4.
A personal care attendant may not perform any task that 113 requires clinical assessment,
interpretation, or judgment. 114 5. An individual employed as a personal care attendant 115 under s. 400.211(2)(
d) must work exclusively for one nursing 116
Florida Senate - 2023 SB 1466 35-01345A-23 20231466__ Page 5 of 11 CODING: Words stricken are deletions; words underlined are additions. facility before becoming a certified nursing assistant. 117 118 The agency shall adopt rules necessary to implement this 119 paragraph. If the state of emergency declared by the Governor 120 pursuant to Executive Order No. 20-52 is terminated before the 121 agency adopts rules to implement this paragraph, the agency 122 shall authorize the continuation of the personal care attendant 123 program until the agency adopts such rules.
On January 1 of each 124 year, the agency shall provide a report to the Governor, the 125 President of the Senate, and the Speaker of the House of 126 Representatives regarding the success of the program, including, 127 but not limited to, the number of personal care attendants who 128 took and passed the certified nursing assistant exam after 4 129 months of initial employment with a single nursing facility as 130 provided in s. 400.211(2); any adverse actions related to 131 patient care involving personal care attendants; the number of 132 certified nursing assistants who are employed and remain 133 employed each year after completing the personal care attendant 134 program; and the turnover rate of personal care attendants in 135 nursing home facilities. 136 (
x) Report to the agency any common ownership the facility 137 or its parent company shares with a staffing or management 138 company, a vocational or physical rehabilitation company, or any 139 other company that conducts business within the nursing home 140 facility. The agency shall work with stakeholders to determine 141 how this reporting shall be conducted. By January 15 of each 142 year, the agency shall submit a report to the Governor, the 143 President of the Senate, and the Speaker of the House of 144 Representatives on all common ownership relationships reported 145
Florida Senate - 2023 SB 1466 35-01345A-23 20231466__ Page 6 of 11 CODING: Words stricken are deletions; words underlined are additions. to the agency in the preceding calendar year. The agency shall 146 adopt rules to implement this paragraph. 147
Section 4. Paragraph (
b) of subsection (2) of
section 148 409.908, Florida Statutes, is amended to read: 149 409.908 Reimbursement of Medicaid providers.—Subject to 150 specific appropriations, the agency shall reimburse Medicaid 151 providers, in accordance with state and federal law, according 152 to methodologies set forth in the rules of the agency and in 153 policy manuals and handbooks incorporated by reference therein. 154 These methodologies may include fee schedules, reimbursement 155 methods based on cost reporting, negotiated fees, competitive 156 bidding pursuant to s. 287.057, and other mechanisms the agency 157 considers efficient and effective for purchasing services or 158 goods on behalf of recipients.
If a provider is reimbursed based 159 on cost reporting and submits a cost report late and that cost 160 report would have been used to set a lower reimbursement rate 161 for a rate semester, then the provider’s rate for that semester 162 shall be retroactively calculated using the new cost report, and 163 full payment at the recalculated rate shall be effected 164 retroactively. Medicare-granted extensions for filing cost 165 reports, if applicable, shall also apply to Medicaid cost 166 reports.
Payment for Medicaid compensable services made on 167 behalf of Medicaid-eligible persons is subject to the 168 availability of moneys and any limitations or directions 169 provided for in the General Appropriations Act or
chapter 216. 170 Further, nothing in this
section shall be construed to prevent 171 or limit the agency from adjusting fees, reimbursement rates, 172 lengths of stay, number of visits, or number of services, or 173 making any other adjustments necessary to comply with the 174
Florida Senate - 2023 SB 1466 35-01345A-23 20231466__ Page 7 of 11 CODING: Words stricken are deletions; words underlined are additions. availability of moneys and any limitations or directions 175 provided for in the General Appropriations Act, provided the 176 adjustment is consistent with legislative intent. 177 (2) 178 (
b) Subject to any limitations or directions in the General 179 Appropriations Act, the agency shall establish and implement a 180 state Title XIX Long-Term Care Reimbursement Plan for nursing 181 home care in order to provide care and services in conformance 182 with the applicable state and federal laws, rules, regulations, 183 and quality and safety standards and to ensure that individuals 184 eligible for medical assistance have reasonable geographic 185 access to such care. 186 1.
The agency shall amend the long-term care reimbursement 187 plan and cost reporting system to create direct care and 188 indirect care subcomponents of the patient care component of the 189 per diem rate. These two subcomponents together shall equal the 190 patient care component of the per diem rate. Separate prices 191 shall be calculated for each patient care subcomponent, 192 initially based on the September 2016 rate setting cost reports 193 and subsequently based on the most recently audited cost report 194 used during a rebasing year.
The direct care subcomponent of the 195 per diem rate for any providers still being reimbursed on a cost 196 basis shall be limited by the cost-based class ceiling, and the 197 indirect care subcomponent may be limited by the lower of the 198 cost-based class ceiling, the target rate class ceiling, or the 199 individual provider target. The ceilings and targets apply only 200 to providers being reimbursed on a cost-based system. Effective 201 October 1, 2018, a prospective payment methodology shall be 202 implemented for rate setting purposes with the following 203
Florida Senate - 2023 SB 1466 35-01345A-23 20231466__ Page 8 of 11 CODING: Words stricken are deletions; words underlined are additions. parameters: 204 a. Peer Groups, including: 205 (
I) North-SMMC Regions 1-9, less Palm Beach and Okeechobee 206 Counties; and 207 (II) South-SMMC Regions 10-11, plus Palm Beach and 208 Okeechobee Counties. 209 b. Percentage of Median Costs based on the cost reports 210 used for September 2016 rate setting: 211 (
I) Direct Care Costs...........................100 percent. 212 (II) Indirect Care Costs.........................92 percent. 213 (III) Operating Costs............................86 percent. 214 c. Floors: 215 (
I) Direct Care Component....................100 95 percent. 216 (II) Indirect Care Component...................92.5 percent. 217 (III) Operating Component..............................None. 218 d. Pass-through Payments.....................Real Estate and 219 ................................................Personal Property 220 ....................................Taxes and Property Insurance. 221 e.
Quality Incentive Program Payment 222 Pool.......................................6 percent of September 223 ........................................2016 non-property related 224 .................................payments of included facilities. 225 f. Quality Score Threshold to Quality for Quality Incentive 226 Payment...................20th percentile of included facilities. 227 g. Fair Rental Value System Payment Parameters: 228 (
I) Building Value per Square Foot based on 2018 RS Means. 229 (II) Land Valuation......10 percent of Gross Building value. 230 (III) Facility Square Footage.........Actual Square Footage. 231 (IV) Moveable Equipment Allowance............$8,000 per bed. 232
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V) Obsolescence Factor.........................1.5 percent. 233 (VI) Fair Rental Rate of Return...................8 percent. 234 (VII) Minimum Occupancy..........................90 percent. 235 (VIII) Maximum Facility Age........................40 years. 236 (IX) Minimum Square Footage per Bed.....................350. 237 (
X) Maximum Square Footage for Bed......................500. 238 (XI) Minimum Cost of a renovation/replacements.$500 per bed. 239 h. Ventilator Supplemental payment of $200 per Medicaid day 240 of 40,000 ventilator Medicaid days per fiscal year. 241 2. The direct care subcomponent shall include salaries and 242 benefits of direct care staff providing nursing services 243 including registered nurses, licensed practical nurses, and 244 certified nursing assistants who deliver care directly to 245 residents in the nursing home facility, allowable therapy costs, 246 and dietary costs.
This excludes nursing administration, staff 247 development, the staffing coordinator, and the administrative 248 portion of the minimum data set and care plan coordinators. The 249 direct care subcomponent also includes medically necessary 250 dental care, vision care, hearing care, and podiatric care. 251 3. All other patient care costs shall be included in the 252 indirect care cost subcomponent of the patient care per diem 253 rate, including complex medical equipment, medical supplies, and 254 other allowable ancillary costs.
Costs may not be allocated 255 directly or indirectly to the direct care subcomponent from a 256 home office or management company. 257 4. On July 1 of each year, the agency shall report to the 258 Legislature direct and indirect care costs, including average 259 direct and indirect care costs per resident per facility and 260 direct care and indirect care salaries and benefits per category 261
Florida Senate - 2023 SB 1466 35-01345A-23 20231466__ Page 10 of 11 CODING: Words stricken are deletions; words underlined are additions. of staff member per facility. 262 5. Every fourth year, the agency shall rebase nursing home 263 prospective payment rates to reflect changes in cost based on 264 the most recently audited cost report for each participating 265 provider. 266 6.
A direct care supplemental payment may be made to 267 providers whose direct care hours per patient day are above the 268 80th percentile and who provide Medicaid services to a larger 269 percentage of Medicaid patients than the state average. 270 7. For the period beginning on October 1, 2018, and ending 271 on September 30, 2021, the agency shall reimburse providers the 272 greater of their September 2016 cost-based rate or their 273 prospective payment rate.
Effective October 1, 2021, the agency 274 shall reimburse providers the greater of 95 percent of their 275 cost-based rate or their rebased prospective payment rate, using 276 the most recently audited cost report for each facility. This 277 subparagraph shall expire September 30, 2023. 278 8. Pediatric, Florida Department of Veterans Affairs, and 279 government-owned facilities are exempt from the pricing model 280 established in this subsection and shall remain on a cost-based 281 prospective payment system.
Effective October 1, 2018, the 282 agency shall set rates for all facilities remaining on a cost-283 based prospective payment system using each facility’s most 284 recently audited cost report, eliminating retroactive 285 settlements. 286 9. The agency shall add a quality metric to the Quality 287 Incentive Program to measure direct care staff turnover and the 288 long-term retention of direct care staff for purposes of 289 recognizing that a stable workforce increases the quality of 290
Florida Senate - 2023 SB 1466 35-01345A-23 20231466__ Page 11 of 11 CODING: Words stricken are deletions; words underlined are additions. nursing home resident care, as described in s. 400.235. 291 292 It is the intent of the Legislature that the reimbursement plan 293 achieve the goal of providing access to health care for nursing 294 home residents who require large amounts of care while 295 encouraging diversion services as an alternative to nursing home 296 care for residents who can be served within the community.
The 297 agency shall base the establishment of any maximum rate of 298 payment, whether overall or component, on the available moneys 299 as provided for in the General Appropriations Act. The agency 300 may base the maximum rate of payment on the results of 301 scientifically valid analysis and conclusions derived from 302 objective statistical data pertinent to the particular maximum 303 rate of payment. The agency shall base the rates of payments in 304 accordance with the minimum wage requirements as provided in the 305 General Appropriations Act. 306